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[ { "docid": "2227030", "title": "", "text": "19, 1987, see United States v. Minor, 846 F.2d 1184, 1188 (9th Cir.1988), brought a motion in the district court claiming that the portion of his sentence stating that on his death any unpaid balance of his restitution payments were due and payable violated 18 U.S.C. § 3565(h) (repealed). Section 3565(h) provided that an “obligation to pay a fine or penalty ceases upon the death of the defendant.” Id. The district court denied Cloud’s motion. II. DISCUSSION This case involves the interpretation of statutes and the legality of Cloud’s sentence. It is therefore subject to de novo review. United States v. Polizzi, 801 F.2d 1543, 1547 (9th Cir.1986); United States v. Pomazi, 851 F.2d 244, 247 (9th Cir.1988), abrogated on other grounds by, Hughey v. United States, — U.S. —, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990). Previous decisions of this court emphasize both the compensatory and penal aspects of the restitution payments authorized under the Victim and Witness Protection Act (VWPA), 18 U.S.C. §§ 3663, 3664 (previously numbered 3579, 3580). See Pomazi, 851 F.2d at 248 (emphasizing compensatory nature of VWPA); Cloud I, 872 at 854 (emphasizing penal nature of VWPA); United States v. Keith, 754 F.2d 1388, 1391-92 (9th Cir.) (emphasizing penal nature of VWPA), cert. denied, 474 U.S. 829, 106 S.Ct. 93, 88 L.Ed.2d 76 (1985). It is clear that restitution payments have both compensatory and penal purposes. Classification of restitution payments as either penal or compensatory is dependent on the particular context in which this inquiry is conducted. See District of Columbia v. Carter, 409 U.S. 418, 420-21, 93 S.Ct. 602, 604-05, 34 L.Ed.2d 613 (1973) (words have different shades of meaning and are construed in terms of the particular legislative context in which they are used). Thus our task is not to decide whether restitution payments under the VWPA are primarily penal or primarily compensatory. Rather our task is essentially one of statutory interpretation. We must determine, in light of the legislative history and purposes of 18 U.S.C. § 3565(h) and the VWPA, whether the “cease upon death” provision of 18 U.S.C. § 3565(h) applies" } ]

[ { "docid": "2485346", "title": "", "text": "sanctions that are designed to punish the defendant, that purpose can no longer be served. See, e.g., United States v. Dudley, 739 F.2d 175, 177 (4th Cir.1984) (“shuffling off the mortal coil completely forecloses punishment, incarceration, or rehabilitation, this side of the grave at any rate”). Accordingly, upon receiving notice of a defendant-appellant’s death during the pendency of his direct appeal as of right, we normally vacate the judgment and remand to the district court with instructions to dismiss the indictment. See, e.g., Durham v. United States, 401 U.S. at 483, 91 S.Ct. 858 (noting the unanimity of the lower courts in adopting this course); United States v. Mollica, 849 F.2d 723, 726 (2d Cir.1988). The second rationale for the rule of abatement focuses on sanctions that are punitive, not on sanctions such as restitution, which are designed to compensate the victims of crime. In Mollica, we left open the question of whether the abatement principle should be applied when the sentence includes an order of forfeiture or restitution, see 849 F.2d at 726, and we have not since then ruled on that issue. Other Circuits, when faced with such a question, have expressed varying views, usually hinging on whether the order in question was viewed as punitive or compensatory. See, e.g., United States v. Oberlin, 718 F.2d 894, 896 (9th Cir.1983) (forfeiture order abated as “essentially penal” even though some aspects may have been compensatory); United States v. Dudley, 739 F.2d at 176-78 (no abatement of restitution order, which court found to be essentially compensatory); United States v. Mmahat, 106 F.3d 89, 93 (5th Cir.) (restitution order abates if its purpose was penal but not if its purpose was compensatory), cert. denied, -; U.S. -, 118 S.Ct. 200, 139 L.Ed.2d 138 (1997); United States v. Logal, 106 F.3d 1547, 1551-52 (11th Cir.) (restitution order should always be abated), cert. denied, -; U.S.-, 118 S.Ct. 376, 139 L.Ed.2d 292 (1997). See also United States v. Cloud, 921 F.2d 225, 226-27 (9th Cir.1990) (rejecting challenge of (live) defendant to portion of judgment specifying that restitutionary amounts unpaid at the time of" }, { "docid": "18079091", "title": "", "text": "dies while his appeal is pending; and (2) judicially create a rule, contrary to federal statutes and common law, that a judgment requiring a criminal defendant to make restitution to his victims also abates upon his death. The well reasoned decisions in Mmahat and Asset established the sound and just majority rule that, when a person adjudged guilty of a crime dies while his appeal is pending, (1) the trial court’s restitution order requiring him to compensate his victims for the harm done them by his crimes does not abate or disappear, because it is compensatory rather than penal; (2) the restitution order continues to have effect as a civil judgment enforceable against his estate; but (3) his estate may move to be substituted in his place and pursue the appeal, which, if successful, will require that the restitution judgment be cancelled. See Mmahat, 106 F.3d at 93. The majority now holds that, when a criminal defendant dies during his appeal, the restitution judgment immediately abates and is voided, leaving his estate the windfall of any fruit of his crime, and requires that his victims go uncompensated for their harm, and leaves in doubt whether they must turn over to the criminal defendant’s estate any restitution previously received. See Majority Op. at 412, 418. 1. The majority’s decision conflicts with the policy and provisions of the Mandatory Victims Restitution Act of 1996 (MVRA) and the Victim and Witness Protection Act of 1982 (VWPA) and undermines the Congressional objective of requiring Federal criminal defendants to pay compensatory restitution to the identifiable victims of their crimes. Congress enacted the VWPA in 1982, 18 U.S.C. § 3663 (1982), to authorize, but not require, district courts, within their discretion, to order restitution to victims of criminal conduct. Id. § 3663(a)(1)(A). In de termining whether to order restitution, and how much, the court was required to consider, along with the loss sustained by each victim, the financial resources and family needs of the defendant. Id. § 3663(a)(1)(B). Prior to today’s decision herein, a majority of circuits, including this Fifth Circuit, had held that restitution orders" }, { "docid": "8618973", "title": "", "text": "Cir.1984) (same), with Parsons, 367 F.3d at 414-15 (holding restitution order is abated), and United States v. Logal, 106 F.3d 1547, 1552 (11th Cir.1997) (same). We have not yet addressed this question, despite our repeated affirmation of the ab initio principle. Oberlin, 718 F.2d at 894 (involving forfeiture); United States v. Cloud, 921 F.2d 225 (9th Cir.1990) (“Cloud II”) (involving a living convicted defendant’s challenge to an order that his estate pay restitution after his death). A Since restitution ordered in sentencing is a statutory remedy based on the VWPA and the Mandatory Victim Restitution Act (“MVRA”), 18 U.S.C. § 3663A, we begin, as usual, with the text of those statutes. The VWPA provides: The court, when sentencing a defendant convicted of an offense under this title ... may order, in addition to or, in the case of a misdemeanor, in lieu of any other penalty authorized by law, that the defendant make restitution to any victim of such offense, or if the victim is deceased, to the victim’s estate. The court may also order, if agreed to by the parties in a plea agreement, restitution to persons other than the victim of the offense. 18 U.S.C. § 3663(a)(1)(A) (emphasis added). The MVRA provides similarly: Notwithstanding any other provision of law, when sentencing a defendant convicted of an offense described in subsection (c), the court shall order, in addition to, or in the case of a misdemeanor, in addition to or in lieu of, any other penalty authorized by law, that the defendant make restitution to the victim of the offense or, if the victim is deceased, to the victim’s estate. Id. § 3663A(a)(1) (emphasis added). In providing that a court “may” or “shall” impose restitution “when sentencing a defendant convicted of an offense under this title, [etc.],” id. § 3663(a)(1), §. 3663A(a)(1), the statutes require that the defendant first must be “convicted of an offense” so enumerated to support an order of restitution. In this case, such offenses are listed in section 3663A(c) because restitution was imposed pursuant to the MVRA. Abatement of the convictions for those offenses, thus," }, { "docid": "18079108", "title": "", "text": "extent and under the same conditions as a judgment of a court of general jurisdiction in that State. . Id. . Id. § 3664(h). . Id. § 3664(Z). . Id. § 3664(j)(l). . Id. § 3664(b)(1). . Id. § 3664(b)(2). . Id. § 36640(2). . The majority asserts that its \"finality rationale .... mandates that all vestiges of the criminal proceeding should disappear.\" Majority Op. n.13. Because the compensato-iy/penal analysis would not result in total abatement, the majority rejects it summarily. Id. Until the majority’s decision rejecting the compensatoiy/penal analysis, it had been adopted and used unanimously. See Mmahat, 106 F.3d 89, 93 (using the penal-compensatory dichotomy); Asset 990 F.2d at 213-14 (same); see also United States v. Christopher, 273 F.3d 294, 298-99 (3rd Cir.2001)(same); United States v. Logal, 106 F.3d 1547, 1552 (11th Cir.1997) (same); United States v. Dudley, 739 F.2d 175, 177-78 (4th Cir.1984) (same); United States v. Johnson, 1991 WL 131892, 1991 U.S.App. LEXIS 17204 (6th Cir.1991) (unpublished) (citing Dudley). By rejecting the analysis and the unanimous weight of authority, the majority opinion places this Circuit in a sui generis position of isolation. The compensatory/punitive test is part of the well settled doctrine that death abates a criminal penalty because, once the defendant is dead, there is no longer a justification for the punishment of him or his estate; but the defendant’s death does not affect the justification for restitution intended only to compensate the victim; accordingly, such restitution survives and its payment will not undermine the purposes of abatement since the goal of the payment is not to punish the defendant, or his estate, but to restore the victim’s losses. See, e.g., Asset, 990 F.2d at 214 (citing United States v. Morton, 635 F.2d 723, 725 (8th Cir.1980); United States v. Bowler, 537 F.Supp. 933, 935 (N.D.Ill.1982)). Restitution also serves the non-penal purpose of removing benefits derived by wrongdoing from the defendant's estate, which would otherwise be unjustly enriched, and using them to repair the victim's losses. Christopher, 273 F.3d at 299, cert. denied, 536 U.S. 964, 122 S.Ct. 2674, 153 L.Ed.2d 847 (2002)(\"To absolve the" }, { "docid": "2485347", "title": "", "text": "we have not since then ruled on that issue. Other Circuits, when faced with such a question, have expressed varying views, usually hinging on whether the order in question was viewed as punitive or compensatory. See, e.g., United States v. Oberlin, 718 F.2d 894, 896 (9th Cir.1983) (forfeiture order abated as “essentially penal” even though some aspects may have been compensatory); United States v. Dudley, 739 F.2d at 176-78 (no abatement of restitution order, which court found to be essentially compensatory); United States v. Mmahat, 106 F.3d 89, 93 (5th Cir.) (restitution order abates if its purpose was penal but not if its purpose was compensatory), cert. denied, -; U.S. -, 118 S.Ct. 200, 139 L.Ed.2d 138 (1997); United States v. Logal, 106 F.3d 1547, 1551-52 (11th Cir.) (restitution order should always be abated), cert. denied, -; U.S.-, 118 S.Ct. 376, 139 L.Ed.2d 292 (1997). See also United States v. Cloud, 921 F.2d 225, 226-27 (9th Cir.1990) (rejecting challenge of (live) defendant to portion of judgment specifying that restitutionary amounts unpaid at the time of his death would then become due and payable immediately). In the present case, Leslie was ordered not only to serve a prison term but also to pay restitution to the New York State Department of Health and to the United States government. After learning of his death, we asked the parties to submit supplemental briefs on the issue of whether so much of the judgment as convicted him and ordered him to pay restitution remains enforceable despite his death. In response, the government argues that the conviction and indictment should abate in their entirety “aside from the order of restitution.” (Government’s supplemental letter brief dated November 2, 1998, at 1.) The government argues that restitution orders are designed to compensate those who have been victimized by the offense, and it contends that that goal can be achieved in coordination with abatement by “permitting restitution orders to stand even after the demise of the defendant and the vacatur of his conviction otherwise.” {Id. at 3.) The analytical underpinnings of such a proposed accommodation are not entirely" }, { "docid": "11039088", "title": "", "text": "death of a criminal defendant during the pendency of his appeal abates the entire proceeding ab initio. United States v. Asset, 990 F.2d 208, 210 (5th Cir.1993); United States v. Schuster, 778 F.2d 1132, 1133 (5th Cir.1985); United States v. Pauline, 625 F.2d 684, 684-85 (5th Cir.1980). In Asset, however, we held that a conviction that results in a sentence of restitution presents a special circumstance, for the abatement principle is premised on the fact that criminal proceedings are penal. Asset, 990 F.2d at 211. After thoroughly analyzing the issue, we concluded that restitution has “both compensatory and penal aspects” and that the nature of any specific restitution order depends “on the purpose for which the obligation is imposed.” Id. at 213. When restitution is ordered simply to punish the defendant, it is penal and abates with the rest of his conviction. When it is designed to make his victims whole, however, it is compensatory and survives his death. Id. at 213-14. In such a case, only the portion of the proceedings unrelated to the restitution order is abated. See, e.g., United States v. Dudley, 739 F.2d 175, 179 (4th Cir.1984). We conclude that the purpose of the restitution ordered against Joseph Mmahat was to compensate the entities that.he damaged. The payments ordered were $45,000 to the Federal Savings and Loan Insurance Corporation (“FSLIC”) and $1,000 to Ronald Frank. Although the district court did not make any specific findings as to the losses Joseph Mmahat caused to the FSLIC and Frank, we think it self-evident, in light of the nature of his crimes, that these entities sustained losses and that the purpose of the restitution was to compensate them. This in turn means that only the portion of Joseph Mmahat’s criminal proceeding wholly unrelated to the restitution order may be abated. Because the restitution order survives, however, we grant the motion for his heirs to continue the appeal in his stead. Furthermore, as Joseph Mmahat’s substantive arguments potentially could result in a reversal of his conviction and sentence, we give them full consideration hereinbelow. IV. The Mmahats contend that the" }, { "docid": "8618972", "title": "", "text": "the pre-trial appointment of the receiver. This means that Rich’s death pending appeal has no effect on the receivership. The $5.8 million already disbursed, the $3 million waiting to. be disbursed, and the as yet undiscovered proceeds of fraud cannot be refunded to Rich. The receivership remains as alive as on the day of its creation or the day of Rich’s sentencing. And the district court retains jurisdiction, as it specified in the Receivership Order, to adjudicate any issues arising out of the receiver’s collection and disbursement of funds, including any claims that newly discovered funds are “not the proceeds of fraud.” V But what about the funds which the receivership may not reach, but that are nonetheless covered by the Restitution Order? Whether a restitution order abates is a question that has divided the circuits. Compare United States v. Christopher, 273 F.3d 294, 297 (3d Cir.2001) (holding restitution order is not abated); United States v. Johnson, 937 F.2d 609 (6th Cir.1991) (unpublished per curiam) (same), and United States v. Dudley, 739 F.2d 175 (4th Cir.1984) (same), with Parsons, 367 F.3d at 414-15 (holding restitution order is abated), and United States v. Logal, 106 F.3d 1547, 1552 (11th Cir.1997) (same). We have not yet addressed this question, despite our repeated affirmation of the ab initio principle. Oberlin, 718 F.2d at 894 (involving forfeiture); United States v. Cloud, 921 F.2d 225 (9th Cir.1990) (“Cloud II”) (involving a living convicted defendant’s challenge to an order that his estate pay restitution after his death). A Since restitution ordered in sentencing is a statutory remedy based on the VWPA and the Mandatory Victim Restitution Act (“MVRA”), 18 U.S.C. § 3663A, we begin, as usual, with the text of those statutes. The VWPA provides: The court, when sentencing a defendant convicted of an offense under this title ... may order, in addition to or, in the case of a misdemeanor, in lieu of any other penalty authorized by law, that the defendant make restitution to any victim of such offense, or if the victim is deceased, to the victim’s estate. The court may also order," }, { "docid": "18079063", "title": "", "text": "the event Defendant Parsons prevails in the final determination of this appeal, and no final judgment of forfeiture is entered in this case, that the [government] should return to Defendant Parsons the entire amount of $970,826.90, plus interest.... After the sale, the district court entered a Preliminary Judgment of Forfeiture of $970,826.90, pursuant to Fed.R.CRIm.P. 32.2(b). The order states, in relevant part: ORDERED that inasmuch as this case remains on appeal at this time, in the event Defendant Parsons prevails in the final determination of this appeal, and no Final Judgment of Forfeiture is entered in this case, the [government] shall return to Defendant Parsons ... the entire amount of $970,826.90, plus interest. ... While this appeal was pending, Parsons died. This court allowed his estate to substitute itself for him as appellant, and the estate submitted a new appellate brief, arguing that Parsons’s death abated the conviction, restitution order, and forfeiture orders. The estate also protected its interests by arguing, in the alternative, that if the restitution and forfeiture orders were not automatically abated by Parsons’s death, the conviction should be reversed on grounds of violation of the Speedy Trial Act and inadequate nexus to interstate commerce. A panel of this court upheld the restitution order and Preliminary Judgment of Forfeiture and rejected Parsons’s other merits issues raised on appeal. United States v. Estate of Parsons, 314 F.3d 745, 750 (5th Cir.2002), vacated for reh’g en banc, 333 F.3d 549 (5th Cir.2003). Recognizing that it was bound by United States v. Asset, 990 F.2d 208 (5th Cir.1993), and United States v. Mmahat, 106 F.3d 89 (5th Cir.1997), the panel concluded that “because the restitution order here is unquestionably compensatory in nature, it survives Parsons’s death.” Parsons, 314 F.3d at 750. II. Asset, Mmahat, and Parsons describe the current state of our abatement jurisprudence. “It is well established in this circuit that the death of a criminal defendant pending an appeal of his or her case abates, ab initio, the entire criminal proceeding.” Asset, 990 F.2d at 210. That is, the appeal does not just disappear, and the case is" }, { "docid": "18079079", "title": "", "text": "States v. Moehlenkamp, 557 F.2d 126, 128 (7th Cir.1977); see also Rosanna Cavallaro, Better Off Dead: Abatement, Innocence, and the Evolving Right of Appeal, 73 U. Colo. L.Rev. 943, 954 (2002) (\"The abatement remedy relies significantly on a larger premise: a conviction that cannot be tested by appellate review is both unreliable and illegitimate; the constitutionally guaranteed trial right must include some form of appellate review.”). . In Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), and Evitts v. Lucey, 469 U.S. 387, 392, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985), the Court \"require[d] the appointment of effective counsel for a criminal appellant pursuing a first appeal of right.” Clark v. Johnson, 227 F.3d 273, 283 (5th Cir.2000). . Asset, 990 F.2d at 211; see also Mmahat, 106 F.3d at 93 (stating that \"the abatement principle is premised on the fact that criminal proceedings are penal”). . See, e.g., United States v. Dudley, 739 F.2d 175, 176 n. 2 (4th Cir.1984) (\"A decedent can hardly serve a prison sentence.”). In its brief, the government makes a similar point: \"Put another way, the doctrine of abatement is applied because it serves no purpose to punish a person who is dead.” . Mmahat, 106 F.3d at 93 (\"When restitution is ordered simply to punish the defendant, it is penal and abates with the rest of his conviction.”). . Following death, the state retains already-paid fines but does not require payment of outstanding unpaid fines. . The courts could use the punishment rationale to prevent use of the conviction in civil court and to retain the decedent’s good name. The former application could be accomplished without eliminating the conviction altogether, and the latter use does not seem significant enough to warrant extinguishing all prior proceedings. . The dissent argues that restitution orders are \"expressly compensatory, non-punitive, and equivalent to a civil judgment against a criminal defendant” and criticizes our approach as “treating the restitution order as abatable and therefore impliedly punitive.” This response overlooks the approach we have taken in deciding this case. Our aim is to craft" }, { "docid": "15898756", "title": "", "text": "require the return of money paid for fines before the defendant’s death). The proper disposition of a restitution order, however, has divided the Courts of Appeals. The Court of Appeals for the Eleventh Circuit has reasoned that once a conviction is abated, a restitution order cannot survive. See Logal, 106 F.3d at 1552. “Under the doctrine of abatement ab initio, ... the defendant stands as if he never had been indicted or convicted. The absence of a conviction precludes imposition of the restitution order.... ” Id. (internal quotations & citations omitted). Although this reasoning cannot lightly be dismissed, the result it commands represents a minority view. In United States v. Mmahat, 106 F.3d 89 (5th Cir.1997), the Court concluded that when the restitution order is designed to make the victim whole, it is compensatory and survives the defendant’s death. 106 F.3d at 93. In such circumstances, “only the portion of the proceedings unrelated to the restitution order is abated.” Id. Consequently, although the Court abated the portion of the proceeding unrelated to the restitution order, the decedent’s heirs were allowed to pursue the appeal because the restitution order survived. Id. The Court of Appeals for the Fourth Circuit has held similarly, excepting a restitution order from abatement, but reviewing the challenges to the conviction. See Dudley, 739 F.2d at 176-178. Two courts have concluded that the restitution order was moot because the decedent left no assets and any attempt at recovery would be futile. See Wright, 160 F.3d at 909; Pogue, 19 F.3d at 665. Neither court offered an observation on abating the restitution order. The question whether an order of restitution should abate depends essentially on its categorization as penal or compensatory. A penal provision, such as a fíne or criminal forfeiture, abates with the conviction. If viewed as compensatory, a restitution order survives. The issue may emerge in a variety of circumstances. The Supreme Court has noted that the Bankruptcy Code was not intended to grant a discharge from criminal fines and penalties and held that, being criminal in nature, a restitution order was not subject to discharge." }, { "docid": "18079064", "title": "", "text": "by Parsons’s death, the conviction should be reversed on grounds of violation of the Speedy Trial Act and inadequate nexus to interstate commerce. A panel of this court upheld the restitution order and Preliminary Judgment of Forfeiture and rejected Parsons’s other merits issues raised on appeal. United States v. Estate of Parsons, 314 F.3d 745, 750 (5th Cir.2002), vacated for reh’g en banc, 333 F.3d 549 (5th Cir.2003). Recognizing that it was bound by United States v. Asset, 990 F.2d 208 (5th Cir.1993), and United States v. Mmahat, 106 F.3d 89 (5th Cir.1997), the panel concluded that “because the restitution order here is unquestionably compensatory in nature, it survives Parsons’s death.” Parsons, 314 F.3d at 750. II. Asset, Mmahat, and Parsons describe the current state of our abatement jurisprudence. “It is well established in this circuit that the death of a criminal defendant pending an appeal of his or her case abates, ab initio, the entire criminal proceeding.” Asset, 990 F.2d at 210. That is, the appeal does not just disappear, and the case is not merely dismissed. Instead, everything associated with the case is extinguished, leaving the defendant “as if he had never been indicted or convicted.” Parsons, 314 F.3d at 749 (quoting United States v. Schumann, 861 F.2d 1234, 1237 (11th Cir.1988)). With respect to restitution, we have looked to the purpose of the order to determine whether it abates with the conviction. “When restitution is ordered simply to punish the defendant, it is penal and abates with the rest of his conviction. When it is designed to make his victims whole, however, it is compensatory and survives his death.” Mmahat, 106 F.3d at 93. Additionally, abatement does not entitle a defendant to monies paid before death as part of a fine or restitution order. III. Despite the common acknowledgment that abatement ab initio is a well-established and oft-followed principle in the federal courts, few courts have plainly articulated the rationale behind the doctrine. Two primary approaches support abatement ab initio. The finality principle reasons that the state should not label one as guilty until he has exhausted" }, { "docid": "22597792", "title": "", "text": "prose cution, including both a conviction upon jury verdict and an order of forfeiture, abated ab initio upon the death of a defendant who committed suicide a few hours after his sentencing hearing. Oberlin, 718 F.2d at 896. Although the defendant had not filed a timely notice of appeal before his death, the rule of abatement was triggered because Oberlin’s death prevented a final resolution of the issue of his guilt or innocence in an appeal which was an “integral part of [our] system for finally adjudicating [his] guilt or innocence.” Id. (quoting Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 590, 100 L.Ed. 891 (1956)). The rule of abatement is basically one that precludes review of a criminal conviction or sentence or other penal sanction where the accused has died during the pendency of an appeal of right. Where, as here, the defendant has not died pending resolution of his appeal, the rule of abatement is simply inapplicable. Cloud also argues that the provision by which the unpaid balance of the restitution payments becomes due and payable upon his death is void under 18 U.S.C. § 3565(h) (1982) (repealed effective November 1, 1987). Before it was repealed, section 3565(h) provided that an “... obligation to pay a fine or penalty ceases upon the death of the defendant....” We need not decide this issue, however, because it does not appear that Cloud presented it to the court below. United States v. Grewal, 825 F.2d 220, 223 (9th Cir.1987) (citing United States v. Whitten, 706 F.2d 1000, 1012 (9th Cir.1983), cert. denied, 465 U.S. 1100, 104 S.Ct. 1593, 80 L.Ed.2d 125 (1984)). AFFIRMED. . On June 21, 1985, Jon Perroton was sentenced to twenty years in prison after he pleaded guilty to three counts of bank larceny, interstate transportation of moneys taken by fraud, and bank fraud, in violation of 18 U.S.C. §§ 2113(b), 2314, and 1344 (1982 & Supp. IV 1986), respectively. Perroton was prosecuted in the district court for the Northern District of California in case CR-85-0130-SC. Only the bank fraud count arose out of his purchase" }, { "docid": "18079090", "title": "", "text": "by appellate review is both unreliable and illegitimate^]” Id. 954. It does not follow from this statement or the article as a whole that courts should create a \"finality rationale” as espoused by the majority; nor does it follow that the dual mechanism provided by Asset and Mmahat, i.e., abatement ab initio of all punitive consequences of the criminal proceedings together with the right to continue the appeal with respect to the compensatory restitution decree, does not adequately satisfy the needs for reliability and legitimacy in criminal proceedings. DENNIS, Circuit Judge, joined by PATRICK E. HIGGINBOTHAM, W. EUGENE DAVIS, WIENER, BENAVIDES, and CARL E. STEWART, Circuit Judges, dissenting in part and specially concurring in part: I respectfully disagree with the majority’s decision to (1) overrule our long-stand ing circuit precedents of United States v. Mmahat, 106 F.3d 89 (5th Cir.1997) and United States v. Asset, 990 F.2d 208 (5th Cir.1993), which held that a restitution order, because it is compensatory rather than punitive, does not abate with the defendant’s criminal conviction and punishment when he dies while his appeal is pending; and (2) judicially create a rule, contrary to federal statutes and common law, that a judgment requiring a criminal defendant to make restitution to his victims also abates upon his death. The well reasoned decisions in Mmahat and Asset established the sound and just majority rule that, when a person adjudged guilty of a crime dies while his appeal is pending, (1) the trial court’s restitution order requiring him to compensate his victims for the harm done them by his crimes does not abate or disappear, because it is compensatory rather than penal; (2) the restitution order continues to have effect as a civil judgment enforceable against his estate; but (3) his estate may move to be substituted in his place and pursue the appeal, which, if successful, will require that the restitution judgment be cancelled. See Mmahat, 106 F.3d at 93. The majority now holds that, when a criminal defendant dies during his appeal, the restitution judgment immediately abates and is voided, leaving his estate the windfall of" }, { "docid": "18079093", "title": "", "text": "under the VWPA were compensatory and therefore non-abatable. See United States v. Asset, supra; United States v. Mmahat, supra; see also United States v. Christopher, 273 F.3d 294, 299 (3rd Cir.2001); United States v. Johnson, 1991 WL 131892, 1991 U.S.App. LEXIS 17204 (6th Cir.1991) (unpublished); United States v. Dudley, 739 F.2d 175 (4th Cir.1984). But see United States v. Logal, 106 F.3d 1547, 1552 (11th Cir.1997) (holding that restitution orders are punitive and should abate with the death of a criminal defendant during his appeal). In 1996, Congress enacted the MVRA, 18 U.S.C. § 3663A (1996), which mandates restitution for certain crimes and clearly indicates that such restitution is compensatory and non-abatable. The MVRA superseded in part the VWPA, with respect to the designated crimes, Id. § 3663A(c), and, as its name indicates, mandatorily requires that, in sentencing a defendant convicted of, inter alia, “an offense against property, including any offense committed by fraud or deceit,” the court “shall order ... that the defendant make restitution to the victim of the offense or, if the victim is deceased, to the victim’s estate.” Id. §§ 3663A(c), 3663A(a). Further, the MVRA amended the VWPA to provide that restitution orders under the VWPA shall be issued and enforced in accordance with § 3664, which sets forth the enforcement provisions of the MVRA. See § 3663(d). (“An order of restitution made pursuant to this section shall be issued and enforced in accordance with Section 3664.”). In each restitution order under the MVRA and the VWPA, as amended, the court “shall order restitution to each victim in the full amount of each victim’s losses as determined by the court and without consideration of the economic circumstances of the defendant.” Id. § 3664(f)(1)(A). Under the MVRA and the VWPA, as amended, the court’s restitution order expressly creates a property right for the victim or his estate which has the effect of a civil judgment against the criminal defendant or his estate. A restitution order is a heritable, assignable, civil judgment “in favor of such victim”, and, when prop erly recorded, “shall be a lien on the" }, { "docid": "10440515", "title": "", "text": "district court erred in referring to amended guideline to determine reasonable amount of upward departure). We choose to adopt the majority view of our sister circuits. Accordingly; we affirm Dahod and Logal’s sentences. 2. Restitution. Counsel for Kuczek asserts that the restitution order entered by the district court cannot survive Kuczek’s suicide. Kuczek was sentenced to serve a 37-month term of imprisonment and a 3-year term of supervised release. Additionally, Kuczek was ordered to pay a fine of $4,000 and restitution totaling $21,586,487, pursuant to the Victim and Witness Protection Act (“VWPA”), 18 U.S.C. § 3663. Kuczek filed a notice of appeal, but the day before he was to begin serving his sentence of incarceration, he committed suicide. Kuczek’s appellate attorney argues that his client’s death rendered the entire conviction and sentence, including the restitution order, void ab initio, and that the restitution order is therefore without effect. This circuit has adopted the general rule that the death of a defendant during the pendency of his direct appeal renders his conviction and sentence void ab initio; i.e., it is as if the defendant had never been indicted and convicted. See United States v. Pauline, 625 F.2d 684, 685 (5th Cir.1980) ; United States v. Schumann, 861 F.2d 1234, 1236 (11th Cir.1988). However, two of our sister circuits have recognized an exception to the general rule of abatement ab initio in cases in which a criminal sentence includes an order that the defendant pay restitution to the victims of his crimes. See United States v. Dudley, 739 F.2d 175, 177 (4th Cir.1984); United States v. Asset, 990 F.2d 208 (5th Cir.1993). In Dudley, the Fourth Circuit premised its holding on the assumption that a restitution order is compensatory in nature. That assumption is clearly at odds with our holding in United States v. Johnson, 983 F.2d 216, 220 (11th Cir.1993), that “though restitution resembles a judgment ‘for the benefit of a victim, it is penal, rather than compensatory.” Furthermore, any implication that restitution resembles a civil judgment is undermined in this court’s opinion in United States v. Satterfield, 743 F.2d 827," }, { "docid": "2227031", "title": "", "text": "at 248 (emphasizing compensatory nature of VWPA); Cloud I, 872 at 854 (emphasizing penal nature of VWPA); United States v. Keith, 754 F.2d 1388, 1391-92 (9th Cir.) (emphasizing penal nature of VWPA), cert. denied, 474 U.S. 829, 106 S.Ct. 93, 88 L.Ed.2d 76 (1985). It is clear that restitution payments have both compensatory and penal purposes. Classification of restitution payments as either penal or compensatory is dependent on the particular context in which this inquiry is conducted. See District of Columbia v. Carter, 409 U.S. 418, 420-21, 93 S.Ct. 602, 604-05, 34 L.Ed.2d 613 (1973) (words have different shades of meaning and are construed in terms of the particular legislative context in which they are used). Thus our task is not to decide whether restitution payments under the VWPA are primarily penal or primarily compensatory. Rather our task is essentially one of statutory interpretation. We must determine, in light of the legislative history and purposes of 18 U.S.C. § 3565(h) and the VWPA, whether the “cease upon death” provision of 18 U.S.C. § 3565(h) applies to restitution orders made under the VWPA. This court has previously emphasized that a significant objective of the VWPA is providing full compensation to victims. Pomazi, 851 F.2d at 248. The legislative history of the VWPA demonstrates that Congress sought to implement a system by which “the wrongdoer is required to the degree possible to restore the victim to his or her prior state of well-being.” S.Rep. No. 97-532, 97th Cong., 2d Sess. 30 reprinted in 1982 U.S.Code Cong. & Admin. News 2515, 2536.... Section 2 of the VWPA expressly states that one of Congress’ purposes in enacting the legislation was “to ensure that the Federal Government does all that is possible within limits of the available resources to assist victims and witnesses of crime without infringing on the constitutional rights of the defendant.” Pub.L. No. 97-291, § 2, 96 Stat. 1248 (18 U.S.C. § 1512 note). Id. If we interpreted section 3565(h) to cancel restitution payments outstanding at death, it would create the possibility that the compensatory goals of the VWPA would be frustrated." }, { "docid": "18079092", "title": "", "text": "any fruit of his crime, and requires that his victims go uncompensated for their harm, and leaves in doubt whether they must turn over to the criminal defendant’s estate any restitution previously received. See Majority Op. at 412, 418. 1. The majority’s decision conflicts with the policy and provisions of the Mandatory Victims Restitution Act of 1996 (MVRA) and the Victim and Witness Protection Act of 1982 (VWPA) and undermines the Congressional objective of requiring Federal criminal defendants to pay compensatory restitution to the identifiable victims of their crimes. Congress enacted the VWPA in 1982, 18 U.S.C. § 3663 (1982), to authorize, but not require, district courts, within their discretion, to order restitution to victims of criminal conduct. Id. § 3663(a)(1)(A). In de termining whether to order restitution, and how much, the court was required to consider, along with the loss sustained by each victim, the financial resources and family needs of the defendant. Id. § 3663(a)(1)(B). Prior to today’s decision herein, a majority of circuits, including this Fifth Circuit, had held that restitution orders under the VWPA were compensatory and therefore non-abatable. See United States v. Asset, supra; United States v. Mmahat, supra; see also United States v. Christopher, 273 F.3d 294, 299 (3rd Cir.2001); United States v. Johnson, 1991 WL 131892, 1991 U.S.App. LEXIS 17204 (6th Cir.1991) (unpublished); United States v. Dudley, 739 F.2d 175 (4th Cir.1984). But see United States v. Logal, 106 F.3d 1547, 1552 (11th Cir.1997) (holding that restitution orders are punitive and should abate with the death of a criminal defendant during his appeal). In 1996, Congress enacted the MVRA, 18 U.S.C. § 3663A (1996), which mandates restitution for certain crimes and clearly indicates that such restitution is compensatory and non-abatable. The MVRA superseded in part the VWPA, with respect to the designated crimes, Id. § 3663A(c), and, as its name indicates, mandatorily requires that, in sentencing a defendant convicted of, inter alia, “an offense against property, including any offense committed by fraud or deceit,” the court “shall order ... that the defendant make restitution to the victim of the offense or, if the" }, { "docid": "11039087", "title": "", "text": "funds (18 U.S.C. § 657), to make false entries in bank records (18 U.S.C. § 1006), and to make false statements to influence a federal agency (18 U.S.C. § 1008) (collectively, count one); substantive misapplication of bank funds (18 U.S.C. § 657) (counts three and five); and substantive making of false entries in bank records (18 U.S.C. § 1006) (count four). John Mmahat was also charged with five additional counts of misapplication of bank funds (counts six through ten). The defendants were convicted of all the above offenses; John Mmahat was sentenced to 21 years’ imprisonment and ordered to pay $2,032,000 in restitution; Joseph Mma-hat was sentenced to 29 months’ imprisonment and ordered to pay $46,000 in restitution. During the pendency of this appeal, Joseph Mmahat died. His counsel subsequently moved to vacate Joseph’s indictment, conviction, and sentence, or in the alternative to pursue his appeal on behalf of his heirs. Because the death potentially moots some of the substantive arguments before the court, we first consider its effect on the appeal. III. Normally, the death of a criminal defendant during the pendency of his appeal abates the entire proceeding ab initio. United States v. Asset, 990 F.2d 208, 210 (5th Cir.1993); United States v. Schuster, 778 F.2d 1132, 1133 (5th Cir.1985); United States v. Pauline, 625 F.2d 684, 684-85 (5th Cir.1980). In Asset, however, we held that a conviction that results in a sentence of restitution presents a special circumstance, for the abatement principle is premised on the fact that criminal proceedings are penal. Asset, 990 F.2d at 211. After thoroughly analyzing the issue, we concluded that restitution has “both compensatory and penal aspects” and that the nature of any specific restitution order depends “on the purpose for which the obligation is imposed.” Id. at 213. When restitution is ordered simply to punish the defendant, it is penal and abates with the rest of his conviction. When it is designed to make his victims whole, however, it is compensatory and survives his death. Id. at 213-14. In such a case, only the portion of the proceedings unrelated to the" }, { "docid": "10440516", "title": "", "text": "initio; i.e., it is as if the defendant had never been indicted and convicted. See United States v. Pauline, 625 F.2d 684, 685 (5th Cir.1980) ; United States v. Schumann, 861 F.2d 1234, 1236 (11th Cir.1988). However, two of our sister circuits have recognized an exception to the general rule of abatement ab initio in cases in which a criminal sentence includes an order that the defendant pay restitution to the victims of his crimes. See United States v. Dudley, 739 F.2d 175, 177 (4th Cir.1984); United States v. Asset, 990 F.2d 208 (5th Cir.1993). In Dudley, the Fourth Circuit premised its holding on the assumption that a restitution order is compensatory in nature. That assumption is clearly at odds with our holding in United States v. Johnson, 983 F.2d 216, 220 (11th Cir.1993), that “though restitution resembles a judgment ‘for the benefit of a victim, it is penal, rather than compensatory.” Furthermore, any implication that restitution resembles a civil judgment is undermined in this court’s opinion in United States v. Satterfield, 743 F.2d 827, 836 (11th Cir.1984), cert. denied, 471 U.S. 1117, 105 S.Ct. 2362, 86 L.Ed.2d 262 (1985). The Fifth Circuit’s opinion in United States v. Asset, 990 F.2d 208 (5th Cir.1993), is also distinguishable. Asset held only that an abatement did not disturb a voluntary restitution payment made prior to the defendant’s death. Id. at 214. This holding is in accordance with our decision in Schumann where we amended Pauline to hold that only fines not yet collected at the time of death are abated. Schumann, 861 F.2d at 1236. If we were to allow the restitution order to survive Kuczek, a statutory problem would also arise. Title 18 U.S.C. § 3663(a)(1) states that before the court can impose a restitution order, a defendant must first be convicted of a crime. Under the doctrine of abatement ab initio, however, the defendant “stands as if he never had been indicted or convicted.” Schumann, 861 F.2d at 1237. The absence of a conviction precludes imposition of the restitution order against Kuczek or his estate pursuant to § 3663. Moreover," }, { "docid": "18079076", "title": "", "text": "of restitution, and to dismiss the indictment. To the extent that they are inconsistent herewith, Asset and Mmahat are overruled. . Specifically, the jury found that Parsons had used $346,260 of the unlawfully-derived insurance proceeds, as set forth in counts 1-5 of the indictment, to construct a certain building and that he had unlawfully derived $970,826.90 from the offenses in counts 1-10. . Although both parties state that the court issued forfeiture orders originating from the juiy’s special forfeiture verdict, the order of judgment only lists the imprisonment, fine, and restitution orders. Presumably, the restitution order incorporated the amounts listed in note 1, supra. . At the sentencing hearing, the court indicated that the $1,317 million restitution order represented the full amount Parsons owed to his victims and that any sums recovered via forfeiture would apply against, that total amount. Because Parsons did not tender any other monies to the government, and because the district court did not enter any other temporary orders, no other portion of the restitution order is encompassed by the Temporary Judgment of Forfeiture. . The panel nonetheless questioned the correctness of those decisions. Parsons, 314 F.3d at 750. The panel further questioned the logic of our caselaw in referring to \"the strange situation of our reviewing a criminal conviction in what has become a hypothetical case.” Id. at 748. . See also Mmahat, 106 F.3d at 93 (“Normally, the death of a criminal defendant during the pendency of his appeal abates the entire proceeding ab initio.”)-, United States v. Schuster, 778 F.2d 1132, 1133 (5th Cir.1985) (“Under the firmly established rule in this circuit, the death of a defendant pending conclusion of the direct criminal appeal abates, ab initio, not only the appeal, but the entire criminal proceeding.”). . See, e.g., United States v. Zizzo, 120 F.3d 1338, 1347 (7th Cir.1997) (regarding fines and forfeitures); Asset, 990 F.2d at 214 (regarding restitution); Schumann, 861 F.2d at 1236. . In applying Durham v. United States, 401 U.S. 481, 483, 91 S.Ct. 858, 28 L.Ed.2d 200 (1971) (per curiam) (stating that \"death pending direct review of a" } ]

[ { "docid": "2218119", "title": "", "text": "facts and to frame a responsive pleading,’ ” Pole No. 3172, Hopkinton, 852 F.2d at 638 (quoting Supplemental Rule E(2)(a)). Once the government presents enough evidence at trial to establish probable cause to believe that the defendant property is connected with illegal drug activity, the burden shifts to the claimant to establish that some or all of the property is not traceable as proceeds from an illegal exchange of controlled substances, hence not subject to forfeiture. United States v. Parcel of Land & Residence at 28 Emery St., 914 F.2d 1, 3 (1st Cir.1990); Parcels of Land, 903 F.2d at 38; United States v. Parcel of Land, 896 F.2d 605, 606 (1st Cir.1990). Whether none, all, or only a portion of the defendant property is forfei-table is not determined at the pleadings stage, but at trial. Pole No. 3172, Hopkinton, 852 F.2d at 640 (“at the pleadings stage, the government must allege facts from which one could infer that the payments claimed to be proceeds actually were tainted; the fact finder can then later determine the percentage interest acquired as a result of tainted payments.”) (footnote omitted). See also One 1980 Rolls Royce, 905 F.2d at 92. In Pole No. 3172, Hopkinton, we concluded that the complaint for forfeiture did not contain sufficiently particular allegations to connect the entire defendant property to tainted proceeds from illegal drug activity. While we recognize, as previously stated, that the quoted language from Pole No. 3172, Hopkinton, 852 F.2d at 639, viz., “facts sufficient to support a belief that the entire property is forfeitable,” offers superficial literal support for the district court decision in the present case, the holding in Pole No. 3172, Hopkinton was not nearly so broad. There the court held only that the particularity requirement imposed by Supplemental Rule E(2)(a) had not been met for the entire defendant property. Viewed in context, the intendment of the language which the district court quoted from Pole No. 3172, Hopkinton is simply that an entire defendant property is not forfeitable on a mere showing that there is probable cause to believe that a portion" } ]

[ { "docid": "5140466", "title": "", "text": "19 U.S.C. secs. 1595-1627a, and the Supplemental Rules for Certain Admiralty and Maritime Claims to govern such actions. Because these procedural rules are both difficult to apply to section 881 actions and are not “easily applied in concert with each other,” the federal courts have generated a large body of case law in an attempt to interpet these rules, and it is likely these decisions that have supplied the claimants with the language of probable cause and prompted them to attempt to engraft a probable cause requirement onto the pleadings in this in rem forfeiture action. $38,000.00 in United States Currency, 816 F.2d at 1540. To clarify the place of a probable cause standard in section 881 forfeiture doctrine, there are three distinct procedural stages to such a forfeiture action, warrant for seizure, complaint for forfeiture and the forfeiture proceeding itself, i.e. the proof of the complaint. In seeking a warrant for seizure, the government’s purpose is to win the right to hold and thereby safeguard suspect property prior to the initiation of formal forfeiture proceedings. Having thus secured the property at issue, the actual forfeiture proceeding is then commenced by the filing of a section 881 complaint, the filing at issue in this case. The proceeding itself, of course, finally determines the forfeiture issue. In the First Circuit, probable cause standards have been explicitly adopted both to evaluate the government’s application for a warrant authorizing seizure pursuant to 21 U.S.C. sec. 881 and to define its burden of proof at the forfeiture proceeding itself. See United States v. Pappas, 613 F.2d 324, 326-30 (1st Cir.1980) (no Supplemental Rule C warrant may issue for seizure of property pursuant to sec. 881(b) unless upon probable cause, and warrantless seizure is justified “only when the seizure immediately follows the occasion that gives the federal agents probable cause and the exigencies of the surrounding circumstances make the requirement of obtaining process unreasonable or unnecessary”); United States v. $250,000 in United States Currency, 808 F.2d 895 (1st Cir.1987) (the burden of proof in a forfeiture action under 21 U.S.C. sec. 881(a)(6) is controlled by" }, { "docid": "2218113", "title": "", "text": "prejudice for lack of particularity in the complaint. The government is, of course, free to initiate a new action if, upon further consideration, it thinks itself able to marshall the requisite facts sufficient to support a reasonable belief that the entire property is forfeitable. United States v. One Parcel of Real Property Known as 6 Patricia Drive, 705 F.Supp. 710, 720-21 (D.R.I.1989). On March 28, 1989, the government filed its second complaint for forfeiture, to which was attached a slightly more detailed affidavit by Detective Roy. The claimants moved to dismiss the second complaint for failure to satisfy the particularity requirements of Supplemental Rule E(2)(a). The United States magistrate recommended dismissal. Further information was added to the affidavit attached to the instant complaint but not enough to satisfy the particularity requirement. Given the fact that the instant complaint is substantially identical to the one dismissed by Judge Pettine, in conjunction with the fact that the government has failed to provide additional requisite facts sufficient to support a reasonable belief that the entire property is forfeitable, I find that the decision dismissing Civil Action No. 88-0444P is also dispositive of the instant complaint. Accordingly, the instant complaint likewise fails to meet the particularity requirement. The government objected to the magistrate’s recommendation. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The district court accepted the magistrate’s recommendation, without further elaboration, and the second complaint for forfeiture was dismissed without prejudice. The government appealed. II. DISCUSSION All property traceable as proceeds from an illegal exchange of controlled substances is forfeitable to the United States under 21 U.S.C. § 881(a)(6). The first procedural step in an in rem civil forfeiture proceeding is the government’s request for a warrant to seize the defendant property under Supplemental Rule C(l)(b), as authorized by 21 U.S.C. § 881(b). The second step, and the one implicated on appeal, is the complaint for forfeiture under Supplemental Rule E(2)(a). The third and final predisposition step in a civil forfeiture proceeding under subsection 881(d) is the forfeiture trial itself, at which the government bears the burden of producing enough evidence to “establish probable" }, { "docid": "12500898", "title": "", "text": "cause to believe that the defendant property was used to facilitate a drug crime, United States v. Parcel of Land & Residence at 28 Emery St., 914 F.2d 1, 3 (1st Cir.1990); United States v. Parcels of Real Property, etc., 913 F.2d 1, 3 (1st Cir.1990). By this we mean there must be sufficient evidence to form a “reasonable ground for belief,” id. at 3; United States v. One Lot of U.S. Currency, 927 F.2d 30, 32 (1st Cir.1991), that the defendant property was “connected with illegal drug activity,” United States v. One Parcel of Real Property, 921 F.2d 370, 375 (1st Cir.1990). Once the government makes the required “probable cause” showing, the burden shifts to the claimant to prove by a preponderance of the evidence that the defendant property was not used in violation of the statute or that it was so used without the claimant’s knowledge or consent. One Lot of U.S. Currency, 927 F.2d at 32; 28 Emery St., 914 F.2d at 3. See also supra note 1. Our plenary appellate review of a grant of sum mary judgment considers all competent record evidence, see Fed.R.Civ.P. 56(e), and the reasonable inferences therefrom, in the light most favorable to the nonmovant. See, e.g., Siegal v. American Honda Motor Co., 921 F.2d 15, 17 (1st Cir.1990). Cooper first contends that the affidavit of DEA Agent Gross, which was based on information from Detective Johnson and Deputy Superintendent Morgan, contains unreliable hearsay that could provide no support for the government’s showing of probable cause. We disagree. “It is well established that ‘[hjearsay may contribute to probable cause for issuance of a [forfeiture] warrant, if there is substantial basis for crediting the hearsay.’ ” Parcels of Real Property, etc., 913 F.2d at 3 (quoting United States v. One 1974 Porsche 911-S Vehicle, 682 F.2d 283, 285 (1st Cir.1982)). The reliability of the Gross affidavit was substantiated by its supporting documentation pertaining to extensive illegal drug activity at 18 Oakwood Street and by the accompanying affidavits of Johnson and Morgan, attesting to the accuracy of the representations made in the Gross affidavit" }, { "docid": "23007440", "title": "", "text": "neither of which requires pre-seizure judicial approval. See United States v. Four Parcels of Real Property in Greene and Tuscaloosa Counties, 941 F.2d 1428, 1432 n. 5 (11th Cir.1991). Before analyzing the validity of the seizures here, we note that even when the initial seizure is found to be illegal, the seized property can still be forfeited. See United States v. $37,780 in United States Currency, 920 F.2d 159, 163 (2d Cir.1990) (holding that “illegal seizure of property does not immunize that property from forfeiture”). This is because seizure and forfeiture are two distinct events. While both require the government to have probable cause, the consequences of a lack of probable cause may differ depending on the event. Absence of probable cause at the time of the seizure may result in the suppression of evidence in later proceedings, but the defendant property itself cannot be suppressed from the forfeiture action. See id. In contrast, a failure to establish probable cause on the forfeiture issue will preclude forfeiture of the property altogether. See discussion Part B, infra. 1. Compliance with Supplemental Rules. The seizures of at least nine of the EFTs followed the process prescribed by the Supplemental Rules. Under the Supplemental Rules, the government begins by filing a verified complaint in the district where the seizure (arrest of the property) will occur. Supp.Rule C(2). Ordinarily, the court must review the papers before authorizing an arrest warrant in rem. See Supp.Rule C(3). However, in actions for “forfeitures for federal statutory violations”, as in this case, “the clerk, upon filing of the complaint, shall forthwith issue a summons and warrant for the arrest of the * * * property without requiring a certification of exigent circumstances.” Id. (emphasis added). Claimants argue that the in rem complaints failed to comply with the particularity requirements for pleadings set forth in the Supplemental Rules. Two rules address the level of particularity required in forfeiture complaints. Rule C(2) states that the complaint “shall describe with reasonable particularity the property that is the subject of the action.” Rule E(2)(a) specifies that the complaint must “state the circumstances" }, { "docid": "10528472", "title": "", "text": "See 21 U.S.C. § 881(b) and (d). . Seizure may be effected under 21 U.S.C. § 881(b) using any one of three summary procedures. First, the government may file a complaint pursuant to Supplemental Rule C(3), whereupon a court clerk \"shall forthwith issue a summons and warrant for the arrest of the vessel or other property without requiring a certification of exigent circumstances.” The government may also seize the property under applicable customs law pursuant to 21 U.S.C. § 881(d). Third, the government may seek issuance of a seizure warrant under Fed. R.Crim.P. 41, which requires an ex parte probable cause determination by a judicial officer. See generally, United States v. Premises and Real Property at 4492 South Livonia Road, Livonia, New York, 889 F.2d 1258, 1262-63 (2d Cir.1989). In this case the government proceeded under Fed.R.Crim.P. 41. . 21 U.S.C. § 881(b) provides: (b) Seizure pursuant to Supplemental Rules for Certain Admiralty and Maritime Claims; issuance of warrant authorizing seizures Any property subject to civil forfeiture to the United States under this subchapter may be seized by the Attorney General upon process issued pursuant to the Supplemental Rules for Certain Admiralty and Maritime Claims by any district court of the United States having jurisdiction over the property.... . In a forfeiture proceeding under 21 U.S.C. § 881, the government has the initial burden of showing probable cause for institution of the suit. See 21 U.S.C. § 881(d) (expressly incorporating the standard set forth in 19 U.S.C. § 1615). See also United States v. $83,320 in United States Currency, 682 F.2d 573, 576-77 (6th Cir.1982). This court has noted that the probable cause standard applicable in a forfeiture trial \"is not a special term of art, but is the same standard employed to test searches and seizures generally.\" United States v. One 1985 Chevrolet Corvette, 914 F.2d 804, 809 (6th Cir.1990) (quotations omitted). Probable cause is defined as a \"reasonable ground for belief of guilt, supported by less than prima facie proof but more than mere suspicion.” $83,320 in United States Currency, 682 F.2d at 577 (citation omitted). Once the" }, { "docid": "23007439", "title": "", "text": "of civil forfeiture is constantly expanding to new realms — in this case, to electronic funds transfers between banks — the courts must ensure that constitutional and procedural safeguards remain intact. A. Seizures. There are three ways the government can institute civil forfeiture in rem proceedings under 21 U.S.C. § 881. First, it can follow the process set forth in the Supplemental Rules for Certain Admiralty and Maritime Claims (“Supplemental Rules”). 21 U.S.C. § 881(b). Second, it can obtain a seizure warrant in the manner provided for in the Federal Rules of Criminal Procedure, which requires a finding of probable cause ex parte by a judicial officer. Fed.R.Crim.P. 41(c). Third, it can seize property without judicial process “when the Attorney General has probable cause to believe the property is subject to civil forfeiture.” 21 U.S.C. § 881(b)(4). See St. Nicholas Ave., 983 F.2d at 402 (discussing three options); United States v. 4492 S. Livonia Rd., 889 F.2d 1258, 1262-63 (2d Cir.1989) (Livonia Rd.) (same). In this case, the government used the first and third options, neither of which requires pre-seizure judicial approval. See United States v. Four Parcels of Real Property in Greene and Tuscaloosa Counties, 941 F.2d 1428, 1432 n. 5 (11th Cir.1991). Before analyzing the validity of the seizures here, we note that even when the initial seizure is found to be illegal, the seized property can still be forfeited. See United States v. $37,780 in United States Currency, 920 F.2d 159, 163 (2d Cir.1990) (holding that “illegal seizure of property does not immunize that property from forfeiture”). This is because seizure and forfeiture are two distinct events. While both require the government to have probable cause, the consequences of a lack of probable cause may differ depending on the event. Absence of probable cause at the time of the seizure may result in the suppression of evidence in later proceedings, but the defendant property itself cannot be suppressed from the forfeiture action. See id. In contrast, a failure to establish probable cause on the forfeiture issue will preclude forfeiture of the property altogether. See discussion Part B," }, { "docid": "5140473", "title": "", "text": "E(2)(a) particularity requirement for the complaint and the section 1615 probable cause standard of the forfeiture proceeding (as it did the relationship between the Rule E(2)(a) standard and the Supplemental Rule C probable-cause-for-warrant requirement), the Eleventh Circuit, in explaining the standard subsequently borrowed by the First Circuit in Pole No. 3172, Hopkinton, interpreted the section 881(a) particularity requirement to mean that the complaint must allege facts sufficient to provide a reasonable belief that the government will be able to meet its burden of showing probable cause at the eventual forfeiture hearing: We ... hold that a section 881(a) forfeiture complaint must allege sufficient facts to provide a reasonable belief that the property is subject to forfeiture: in particular, that the government has probable cause to believe that a substantial connection exists between the property to be forfeited and exchange of a controlled substance. $38,000.00 in United States Currency, 816 F.2d at 1548. Parallel language in the Pole No. 3172, Hopkinton opinion, although not similarly incorporated into the First Circuit’s enunciation of the test of the adequacy of a forfeiture complaint, leaves little room for doubt that the First Circuit, like the Eleventh, interprets the particularity requirement to mean that a section 881(a) forfeiture complaint must allege facts sufficient to “support a reasonable belief that the government could demonstrate probable cause.” In short, the First Circuit recognizes a distinction between the requirements imposed upon the government at the pleading and proceeding stages of the civil forfeiture process, just as it recognizes a distinction between the requirements imposed at the seizure and pleading stages, which distinctions serve to secure the protections of due process in cases involving the constitutionally delicate matter of forfeiture. In sum, the three stages of the civil forfeiture process are governed by three different statutory or regulatory provisions which have been interpreted by the First Circuit to impose increasingly stringent requirements of allegation and proof upon the government as the forfeiture action progresses toward permanent forfeiture. Specifically, the First Circuit interprets Supplemental Rule C for Certain Admiralty and Maritime Claims as requiring a probable-cause-for-warrant requirement at the seizure" }, { "docid": "14346696", "title": "", "text": "a magistrate judge’s ex parte order. The district court erroneously equated the magistrate judge’s inquiry into whether there is probable cause to support an arrest warrant and the inquiry undertaken in determining whether there is probable cause to forfeit defendant property. The First Circuit has explained: [T]he probable cause determination of the magistrate and that in the complaint address two different questions: the first, whether the government has probable cause to hold the property until it can file a complaint against it, includes considerations of the need to protect the government’s interest, and comes at an earlier stage in the proceedings; the second, whether the facts in the government’s possession support an inference that the property is subject to forfeiture, must be more narrowly tailored to precisely identify the portion of the property the government can keep. United States v. Pole No. 3172, Hopkinton, 852 F.2d 636, 639 (1st Cir.1988). In United States v. Parcels of Real Property, 795 F.Supp. 1225, 1231-32 (D.Mass.1992), aff'd, 9 F.3d 1000 (1st Cir.1993), the district court reasoned: Thus, in issuing the ex parte warrant and monition on June 1, 1989, [the court] certified that the government had, upon the evidence available at that time, shown probable cause adequate to justify holding the property pending the dispositive evi-dentiary hearing. In other words, [the court] found that the government had made an adequate preliminary showing that the property was connected to illegal activity and thus forfeitable. At the trial itself, [the court] applied the scheme of shifting burdens.... Thus, probable cause at the forfeiture trial is used to measure all of the evidence ultimately adduced for final disposition of a forfeiture action. It does not function to evaluate the necessarily preliminary and pretermitted showing pending trial. Whether it be at trial, on motion for summary judgment, or at some other hearing, evidence obtained both prior to the seizure and after the seizure is evaluated to determine whether there is sufficient probable cause for forfeiture. See, e.g., $67,220.00 in U.S. Currency, 957 F.2d at 284 (“[A] district court must assess probable cause at the time of the" }, { "docid": "5140468", "title": "", "text": "19 U.S.C. sec. 1615 and under that statute the government must initially show probable cause to believe that the property was connected with illegal drug transactions); United States v. One 1974 Porsche 911-S, Vehicle Identification No. 9114102550, 682 F.2d 283, 285 (1st Cir.1982) (in a forfeiture action pursuant to 21 U.S.C. sec. 881(a)(4) the government has the burden of going forward but must only show probable cause that the res subject to forfeiture was involved in a crime). However, although the First Circuit’s approach to the burden of proof in forfeiture actions is consistent with that taken in other Circuits, its warrant-upon-probable-cause requirement is unique and reflects the First Circuit’s view that at least some of the procedural rules supplied by the Supplemental Rules for Certain Admiralty and Maritime Claims are constitutional when applied to section 881 forfeiture actions only if probable cause requirements are read into them. It is thus possible to see how the First Circuit’s willingness to extend greater constitutional protection to section 881 claimants at the warrant stage of forfeiture actions might lead the real parties in interest in this action to question whether the Circuit intended to apply the same high standard to the initiation stage of the seizure proceeding, that is to the forfeiture complaint itself. A careful reading of the Pole No. 3172, Hopkinton decision makes clear that the First Circuit has indeed adopted a constitutionally rigorous, yet distinct, standard by which to evaluate section 881 forfeiture complaints. In the Pole No. 3172, Hopkin-ton case, the property at issue had already been seized by the government pursuant to a seizure warrant issued by a magistrate. In issuing the warrant, the magistrate had made a finding of probable cause as required by the Pappas decision. When the Hopkinton claimant challenged the adequacy of the section 881 complaint subsequently filed by the government, the government responded by arguing that the magistrate’s determination of probable cause at the warrant stage of the proceedings sufficed to allay the due process concerns raised by the claimant at this later stage in the process. Rejecting the government’s argument, the" }, { "docid": "23199192", "title": "", "text": "provides in relevant part: Any property subject to civil forfeiture to the United States under this subchapter may be seized by the Attorney General upon process issued ... when— (1) the seizure is incident to an arrest or a search under a search warrant.... . Appellants’ argument that the affidavit was based upon impermissible hearsay is also without merit. Appellants challenge the magistrate’s reliance upon statements made by \"Chris\" during the controlled buy. Although this statement is clearly hearsay, and perhaps multiple hearsay, hearsay may be used to establish probable cause for a search warrant. Snow, 919 F.2d at 1460. We conclude that the circumstances set out in the affidavit, including the actual production of illicit drugs during the controlled buy, provides sufficient corroboration for Chris’ statement to be considered in issuing the warrant. . The district court found that the government had failed to establish a connection between the defendant property and the illegal gambling. This factual and legal conclusion is not challenged on appeal. Thus, we will only address whether the district court erred in finding that the defendant property was subject to forfeiture pursuant to the remaining statutory provisions. Because we conclude that the defendant property was properly forfeited under 21 U.S.C. § 881(a)(4) and (6), we need not determine whether forfeiture was proper under 26 U.S.C. §§ 7301 and 7302, for failure to pay income tax. Neither side has provided, nor have we found, any case law supporting such an application of this forfeiture provision. However, we leave this determination for another day. . Various circuits have held that property is forfeitable where the \"aggregate of facts” show that probable cause exists that the property was used in connection with or was derived from a drug transaction. United States v. Parcels of Land, etc., et al., 903 F.2d 36, 38-39 (1st Cir.1990); United States v. Padilla, 888 F.2d 642, 643-44 (9th Cir.1989); United States v. Edwards, 885 F.2d 377, 390 (7th Cir.1989) (totality of the circumstances)." }, { "docid": "2600392", "title": "", "text": "trial, without a jury, and the court ordered that judgment enter in favor of the plaintiff, forfeiting the van to the United States. II. The first issue presented by appellant is whether the district court erred in relying on hearsay in determining that probable cause existed. Specifically, Claimant challenges the admission of a toxicology report verifying that the substance was marijuana, and the admission of Offi cer Sylvia’s affidavit containing statements of the unknown informant. The existence of probable cause is a question of law, and as such, is subject to plenary review. United States v. Parcels of Land, 903 F.2d 36, 41 (1st Cir.); United States v. $250,000 in United States Currency, 808 F.2d 895, 897-98 (1st Cir.1987). Under 21 U.S.C. § 881, property that is used in connection with a violation of federal drug laws is subject to forfeiture to the United States. United States v. Parcel of Land & Residence at 28 Emery St., 914 F.2d 1, 3 (1st Cir.1990); United States v. Parcels of Land, 903 F.2d at 38; $250,000 in United States Currency, 808 F.2d at 897. Section 881(d) directs that 19 U.S.C. § 1615 governs the burden of proof in a forfeiture action. $250,000 in United States Currency, 808 F.2d at 897. Section 1615 provides that the government must show probable cause to believe that the property was used in an illegal drug transaction. Parcel of Land & Residence at 28 Emery St., 914 F.2d at 3; $250,000 in United States Currency, 808 F.2d at 897. Thus, to meet this burden, the government must demonstrate a reasonable ground for its belief in guilt, “supported by less than prima facie proof, but more than mere suspicion.” $250,000 in United States Currency, 808 F.2d at 897 (quoting United States v. $364,960, 661 F.2d 319, 323 (5th Cir.1981)). Once the government has made a showing of probable cause, the burden shifts to the Claimant to prove by a preponderance of the evidence that the property was not involved in illegal drug activity. $250,000 in United States Currency, 808 F.2d at 897; Parcel of Land & Residence at" }, { "docid": "2218130", "title": "", "text": "a warrant authorizing the seizure of property subject to forfeiture under [section 881] in the same manner as provided for a search warrant under the Federal Rules of Criminal Procedure.” 21 U.S.C. § 881(b) (Supp. 1990). Federal Rule of Criminal Procedure 41 governs the issuance of search warrants. See Fed.R.Crim.P. 41. . Subsection 881(d) provides that civil forfeiture proceedings in drug cases are to be conducted in accordance with the procedures used in a judicial forfeiture for violation of the customs laws, codified in Title 19, United States Code, sections 1610, et seq. See 21 U.S.C. § 881(d). . See also United States v. $250,000 in United States Currency, 808 F.2d 895, 897 (1st Cir.1987). \"To establish probable cause, the government must only show a 'reasonable ground for belief of [the property’s] guilt; supported by less than prima facie proof but more than mere suspicion.’ ” Parcels of Land, 903 F.2d at 38 (quoting $250,000 in United States Currency, 808 F.2d at 897). See also United States v. One 1974 Porsche, 911-S, 682 F.2d 283, 285 (1st Cir.1982) (Probable cause requires reasonable grounds for believing the property is subject to forfeiture; ”[t]he evidence must go further, however, than simply arousing suspicion.’’); United States v. Parcels of Real Property etc., 913 F.2d 1, 3 (1st Cir.1990) (\"In order to satisfy [the probable cause] standard, the evidence must rise above the level of mere suspicion but can be supported by less than prima facie proof.\"). . It was undisputed in Pole No. 3172, Hopkinton that at least 20.8% of the defendant property had been acquired by the claimants more than two years prior to any alleged drug dealings and two years before the enactment of the forfeiture statute. See 21 U.S.C. § 881(a)(6), enacted as § 301(a) of the Psychotropic Substances Act, Pub.L. 95-633, 92 Stat. 3777 (1978). Moreover, the government did not allege receipt of any drug profits by claimants until five years after they acquired the defendant property. Finally, the government did not even contend that funds which other persons contributed toward the acquisition of the defendant property constituted drug" }, { "docid": "13964679", "title": "", "text": "or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner. Id. § 881(a)(7). It is this provision that the government invoked against the Property. In section 881(a)(7) cases, as in all civil forfeiture cases brought pursuant to section 881, the customs laws dictate the progression of proof. See id. § 881(d) (mandating reference to the customs laws); 19 U.S.C. § 1615 (codifying relevant provisions of the customs laws). In practice, then, if the United States brings a forfeiture action against a parcel of real estate and a person claiming an interest in the real estate chooses to contest the forfeiture, the government bears the burden of demonstrating probable cause to support a belief that a nexus existed between the real estate and some specified illegal activity sufficient to justify forfeiture. United States v. One Parcel of Real Property (Great Harbor Neck, New Shoreham, R.I.), 960 F.2d 200, 204 (1st Cir.1992); United States v. Parcel of Land (28 Emery St), 914 F.2d 1, 3-4 (1st Cir.1990); United States v. Parcels of Real Property (1983 Commonwealth Ave.), 913 F.2d 1, 3 (1st Cir.1990). Once the government carries its relatively modest burden of showing probable cause, the devoir of persuasion shifts to the claimant, who must refute the government’s prima facie case in one of two ways: either (1) by demonstrating that the property was not in fact used for the specified illegal activity, or (2) by proving that she (the claimant) neither knew about, nor consented to, the illicit activity. Great Harbor Neck, 960 F.2d at 204. The second of these avenues is commonly called the “innocent owner” defense. In a civil forfeiture case, lack of knowledge or consent is an affirmative defense. See United States v. One Parcel of Property (121 Allen Pl.), 75 F.3d 118, 121 (2d Cir.1996); United States v. Parcel of Land (18 Oakwood St.), 958 F.2d 1, 4 (1st Cir.1992). Thus, the claimant bears the burden of proving the absence of knowledge or consent by a preponderance of the evidence. Great Harbor Neck, 960 F.2d at 204;" }, { "docid": "12500897", "title": "", "text": "of an apartment at 18 Oakwood Street which disclosed marijuana and led to the arrest of Mary Williams for possession of marijuana with intent to distribute. The affidavits assert that on more than one occasion officers observed William Cooper acting as a “lookout” from the porch, while drug transactions were conducted at the property. William Cooper made a general denial of the government’s allegations, contended that he was an “innocent owner” of the defendant property, and urged dismissal of the forfeiture complaint due to “government lassitude” because the most recent allegations of drug activity at the property predated the commencement of the action by more than a year. The motion for summary judgment was granted, based on what the district court found to be “ample evidence” and the failure of claimant Cooper to establish an adequate defense. The district court subsequently denied Cooper’s rule 60(b) motion to vacate the judgment of forfeiture. II DISCUSSION A. Forfeiture Action At the outset of a civil forfeiture action under 21 U.S.C. § 881(a)(7), the government must establish probable cause to believe that the defendant property was used to facilitate a drug crime, United States v. Parcel of Land & Residence at 28 Emery St., 914 F.2d 1, 3 (1st Cir.1990); United States v. Parcels of Real Property, etc., 913 F.2d 1, 3 (1st Cir.1990). By this we mean there must be sufficient evidence to form a “reasonable ground for belief,” id. at 3; United States v. One Lot of U.S. Currency, 927 F.2d 30, 32 (1st Cir.1991), that the defendant property was “connected with illegal drug activity,” United States v. One Parcel of Real Property, 921 F.2d 370, 375 (1st Cir.1990). Once the government makes the required “probable cause” showing, the burden shifts to the claimant to prove by a preponderance of the evidence that the defendant property was not used in violation of the statute or that it was so used without the claimant’s knowledge or consent. One Lot of U.S. Currency, 927 F.2d at 32; 28 Emery St., 914 F.2d at 3. See also supra note 1. Our plenary appellate review" }, { "docid": "2218114", "title": "", "text": "I find that the decision dismissing Civil Action No. 88-0444P is also dispositive of the instant complaint. Accordingly, the instant complaint likewise fails to meet the particularity requirement. The government objected to the magistrate’s recommendation. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The district court accepted the magistrate’s recommendation, without further elaboration, and the second complaint for forfeiture was dismissed without prejudice. The government appealed. II. DISCUSSION All property traceable as proceeds from an illegal exchange of controlled substances is forfeitable to the United States under 21 U.S.C. § 881(a)(6). The first procedural step in an in rem civil forfeiture proceeding is the government’s request for a warrant to seize the defendant property under Supplemental Rule C(l)(b), as authorized by 21 U.S.C. § 881(b). The second step, and the one implicated on appeal, is the complaint for forfeiture under Supplemental Rule E(2)(a). The third and final predisposition step in a civil forfeiture proceeding under subsection 881(d) is the forfeiture trial itself, at which the government bears the burden of producing enough evidence to “establish probable cause to believe that the defendant property constitutes the proceeds of drug trafficking.” United States v. Parcels of Land, 903 F.2d 36, 38 (1st Cir.1990). Civil in rem forfeiture complaints in drug cases are governed by Supplemental Rule E(2)(a), United States v. Pole No. 3172, Hopkinton, 852 F.2d 636, 638 (1st Cir.1988), and must meet its particularity requirements. In actions to which this rule is applicable the complaint shall state the circumstances from which the claim arises with such particularity that the defendant or claimant will be able, without moving for a more definite statement, to commence an investigation of the facts and to frame a responsive pleading. Supplemental Rule E(2)(a). The district court in the present case relied principally on language from our opinion in Pole No. 3172, Hopkinton, supra, as support for its determination that the allegations of the first forfeiture complaint lacked the requisite particularity. The district court quoted the statement in Pole No. 3172, Hopkinton that the forfeiture complaint must allege “ ‘facts sufficient to support a belief that the entire" }, { "docid": "5140471", "title": "", "text": "Hopkinton, 852 F.2d at 639. Thus, in the First Circuit, a showing that satisfies the probable-cause-for-warrant requirement, thereby empowering the government to seize property and hold it temporarily pending a full forfeiture hearing, may be inadequate to meet the peculiarly stringent particularity requirement of a Rule E(2) forfeiture complaint, which necessitates that specific facts be alleged that support a reasonable belief that specific property is tainted and therefore forfei-table. In this sense, then, the particularity requirement of the complaint stage of the forfeiture process is more stringent than the probable cause standard applied in the First Circuit to the seizure stage, and it is in the satisfaction of the distinct requirements of these separate stages of the forfeiture process that due process is safeguarded. In a parallel vein, there is nothing in the Pole No. 3172, Hopkinton decision that supports the view, suggested by the claimants’ papers, that the First Circuit intended to collapse the Supplemental Rule E(2)(a) particularity requirement of the complaint stage of the forfeiture proceeding into the probable cause showing that the government must make under 19 U.S.C. sec. 1595-1627a at the forfeiture hearing itself. As the Court of Appeals made clear in $250,000 in United States Currency, 808 F.2d at 897, the probable cause standard governing the burden of proof at the actual forfeiture proceeding, like that of the warrant-authorizing-seizure stage, is uniquely tailored to a particular stage in the civil forfeiture process: ... the burden of proof in a forfeiture action is controlled by 19 U.S.C. sec. 1615. Under 19 U.S.C. sec. 1615, the government must initially show probable cause to believe that the property was connected with illegal drug transactions. Once probable cause is shown, the private claimant bears the burden of proving by a preponderance of the evidence that the property was not involved in illegal drug transactions. To show probable cause the government need only show a “reasonable ground for belief of guilt; supported by less than prima facie proof but more than mere suspicion.” Additionally, although the First Circuit did not explicitly address the issue of the relationship between the Rule" }, { "docid": "5140467", "title": "", "text": "proceedings. Having thus secured the property at issue, the actual forfeiture proceeding is then commenced by the filing of a section 881 complaint, the filing at issue in this case. The proceeding itself, of course, finally determines the forfeiture issue. In the First Circuit, probable cause standards have been explicitly adopted both to evaluate the government’s application for a warrant authorizing seizure pursuant to 21 U.S.C. sec. 881 and to define its burden of proof at the forfeiture proceeding itself. See United States v. Pappas, 613 F.2d 324, 326-30 (1st Cir.1980) (no Supplemental Rule C warrant may issue for seizure of property pursuant to sec. 881(b) unless upon probable cause, and warrantless seizure is justified “only when the seizure immediately follows the occasion that gives the federal agents probable cause and the exigencies of the surrounding circumstances make the requirement of obtaining process unreasonable or unnecessary”); United States v. $250,000 in United States Currency, 808 F.2d 895 (1st Cir.1987) (the burden of proof in a forfeiture action under 21 U.S.C. sec. 881(a)(6) is controlled by 19 U.S.C. sec. 1615 and under that statute the government must initially show probable cause to believe that the property was connected with illegal drug transactions); United States v. One 1974 Porsche 911-S, Vehicle Identification No. 9114102550, 682 F.2d 283, 285 (1st Cir.1982) (in a forfeiture action pursuant to 21 U.S.C. sec. 881(a)(4) the government has the burden of going forward but must only show probable cause that the res subject to forfeiture was involved in a crime). However, although the First Circuit’s approach to the burden of proof in forfeiture actions is consistent with that taken in other Circuits, its warrant-upon-probable-cause requirement is unique and reflects the First Circuit’s view that at least some of the procedural rules supplied by the Supplemental Rules for Certain Admiralty and Maritime Claims are constitutional when applied to section 881 forfeiture actions only if probable cause requirements are read into them. It is thus possible to see how the First Circuit’s willingness to extend greater constitutional protection to section 881 claimants at the warrant stage of forfeiture actions" }, { "docid": "5140472", "title": "", "text": "government must make under 19 U.S.C. sec. 1595-1627a at the forfeiture hearing itself. As the Court of Appeals made clear in $250,000 in United States Currency, 808 F.2d at 897, the probable cause standard governing the burden of proof at the actual forfeiture proceeding, like that of the warrant-authorizing-seizure stage, is uniquely tailored to a particular stage in the civil forfeiture process: ... the burden of proof in a forfeiture action is controlled by 19 U.S.C. sec. 1615. Under 19 U.S.C. sec. 1615, the government must initially show probable cause to believe that the property was connected with illegal drug transactions. Once probable cause is shown, the private claimant bears the burden of proving by a preponderance of the evidence that the property was not involved in illegal drug transactions. To show probable cause the government need only show a “reasonable ground for belief of guilt; supported by less than prima facie proof but more than mere suspicion.” Additionally, although the First Circuit did not explicitly address the issue of the relationship between the Rule E(2)(a) particularity requirement for the complaint and the section 1615 probable cause standard of the forfeiture proceeding (as it did the relationship between the Rule E(2)(a) standard and the Supplemental Rule C probable-cause-for-warrant requirement), the Eleventh Circuit, in explaining the standard subsequently borrowed by the First Circuit in Pole No. 3172, Hopkinton, interpreted the section 881(a) particularity requirement to mean that the complaint must allege facts sufficient to provide a reasonable belief that the government will be able to meet its burden of showing probable cause at the eventual forfeiture hearing: We ... hold that a section 881(a) forfeiture complaint must allege sufficient facts to provide a reasonable belief that the property is subject to forfeiture: in particular, that the government has probable cause to believe that a substantial connection exists between the property to be forfeited and exchange of a controlled substance. $38,000.00 in United States Currency, 816 F.2d at 1548. Parallel language in the Pole No. 3172, Hopkinton opinion, although not similarly incorporated into the First Circuit’s enunciation of the test of the" }, { "docid": "5805110", "title": "", "text": "by any district court of the United States having jurisdiction over the property, except that seizure without process may be made when— (4) the Attorney General has probable cause to believe that the property is subject to civil or criminal forfeiture under this subchapter. The Admiralty and Maritime Rules referred to above require that the forfeiture complaint be verified and that the verified complaint together with any supporting papers be reviewed by a district court to determine whether probable cause for the action in rem exists. Fed.R.Civ.P.Supp. Rules C(2), (3). If the court finds probable cause, an order will issue authorizing a warrant for the seizure of the property, and the clerk of the court will prepare a warrant for service by the Marshal. Fed. R.Civ.P.Supp.Rule C(3). Rules requiring preseizure judicial hearings, however, do not apply to actions by the United States for forfeitures based on federal statutory violations. Id. In forfeiture suits by the United States, the rules authorize the clerk of the court to issue a warrant for seizure solely upon filing the verified complaint. Fed.R.Civ.P.Supp.Rule C(3). Reading the Admiralty and Maritime Rules together with § 21 U.S.C. § 881(b) makes clear that two paths are available for securing a warrant of seizure for real estate allegedly used to facilitate violations of federal narcotics laws. The United States can initiate a civil forfeiture by following Admiralty and Maritime Rule C or proceed under 21 U.S.C. § 881(b)(4) where the government has probable cause to believe the property is forfeitable under § 881(a)(7). Regardless of which procedure is exercised by the government, preseizure judicial review is not required and is expressly exempted under Admiralty and Maritime Rule C(3). United States v. A Parcel of Real Property, 636 F.Supp. 142, 145 (N.D.Ill.1986) (preseizure judicial review does not appear necessary under 21 U.S.C. § 881(b) or Admiralty and Maritime Rule C(3)). Felix Ambrose first attacks the government’s complaint arguing that insufficient acts are asserted to constitute probable cause to believe he used the defendant property to facilitate violation of federal narcotics laws. Felix Ambrose argues that because the government did not" }, { "docid": "196532", "title": "", "text": "be had under § 881(a)(6) of “[a]ll moneys, negotiable instruments, securities, or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance [as well as] all proceeds traceable to such an exchange.” (emphasis added). The government has three options when it institutes a civil forfeiture in rem proceeding: (1) file a complaint pursuant to the Supplemental Rules for Certain Admiralty and Maritime Claims, which triggers the issuance of a summons and warrant by a court clerk without requiring a certification of exigent circumstances; (2) request the issuance of a seizure warrant in the manner provided for in Fed.R.Crim.P. 41 that requires a finding of probable cause ex parte by a judicial officer; or (3) “when the Attorney General has probable cause to believe the property is subject to civil forfeiture,” seize it following applicable customs law as set forth in § 881(d). See United States v. 4492 S. Livonia Road, 889 F.2d 1258, 1262-67 (2d Cir.1989). The third option was followed in the case at hand. Under § 881(d) those procedures used under the United States Customs Laws, as spelled out at 19 U.S.C. § 1615 (1988), are incorporated in the forfeiture proceedings. Section 1615 describes the burden of proof and requires that the agency seeking forfeiture must first demonstrate probable cause supporting the action. The initial step in the forfeiture process under §§ 881(a)(6) and (7) accordingly requires the government establish probable cause that connects the property with drug trafficking. There need not be a substantial connection between the drug activities and the property in question, but only a nexus between them. See United States v. 38 Whalers Cove Drive, 954 F.2d 29, 33 (2d Cir.), cert. denied, — U.S. -, 113 S.Ct. 55, 121 L.Ed.2d 24 (1992); United States v. Whites Hill Road, 916 F.2d 808, 811-12 (2d Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 972, 112 L.Ed.2d 1058 (1991); United States v. Banco Cafetero Panama, 797 F.2d 1154, 1160 (2d Cir.1986). When forfeiture is of a bank account, the government must persuade the factfinder that there is" } ]

[ { "docid": "1149937", "title": "", "text": "of the debts even if not listed or scheduled. The only exception under Padilla is for an unlisted or unscheduled creditor whose claim arises under § 523(a)(2), (4), or (6). In such a situation, the court may reopen a closed case for the limited purpose of giving the unscheduled creditors an opportunity to file a complaint to determine if their claims arise under § 523(a)(2), (4), or (6). The rationale behind Padilla and its progeny is sound and I approve it. As noted above, the complaint objecting to discharge alleged exemption from discharge under § 523(a)(10). It did not affirmatively plead, however, a written waiver or reaffirmation of the type § 524(c) describes (i.e. made in writing, before the granting of discharge, with appropriate admonitions, and filed with the court). Hence, the court below, sub silentio at least, treated the complaint as one arising § 523(a)(3) and applied Padilla to dismiss the complaint. In this, I see no error, especially since the court gave debtor an opportunity to file for reconsideration. C. Post-Petition Prejudice Although not clearly articulated, creditor’s largest concern seems to be that Padilla unfairly allows the debtor to get off scot-free in the face of its own (unspecified) costs incurred in post-petition collection efforts. Even among those courts that have adopted, followed and developed Padilla’s approach, there is no uniform response. See In re Mendiola, 99 B.R. 864 (Bankr. N.D.Ill.1989); In re David, 106 B.R. 126 (Bankr.E.D.Mich.1989); and In re Guzman, 130 B.R. 489 (Bankr.W.D.Tex.1991). One court has suggested that “[t]his type of prejudice can easily be rectified by conditioning the granting of the motion [to reopen] upon the reimbursement of such [costs] to the creditor.” David, 106 B.R. at 130. Another has suggested that the state courts should be allowed to consider such a claim of post-petition prejudice. They could thus balance post-petition prejudice to the creditor against the debtor’s fresh start. Guzman, 130 B.R. at 491 n. 4. Although the underlying pre-petition claim may well have been discharged, the creditor's post-petition costs would not have been incurred at all had the debtor “timely advised the" } ]

[ { "docid": "2240057", "title": "", "text": "who failed to list a creditor loses the jurisdictional and time-limit protections of Sections 523(c) and Rule 4007(b) [sic, should be 4007(c)] with respect to that creditor. In re Mendiola, 99 B.R. at 868 n. 6. The result is that a debtor who fails to schedule •an intentional tort debt before the bar date loses the benefit of both the bar date and the exclusive jurisdiction of the bankruptcy court. Although Congress sought to protect debtors from abuse by harassing creditors when it gave bankruptcy courts exclusive jurisdiction over intentional tort debts in 1970, that protection is reserved for debtors who schedule such debts. In his concurring opinion in In re Beez-ley, Circuit Judge O’Scannlain lamented that the real issue, that of the discharge-ability of the creditor’s debt, remained to be litigated. Judge O’Scannlain stated that since Beezley failed to schedule the debt, the debtor lost his right to the protections of § 523(c) and Rule 4007(c). In re Beezley, 994 F.2d at 1441, citing American Standard Ins. Co. v. Bakehorn, 147 B.R. 480, 484 (N.D.Ind.1992). Many courts have agreed with Judge O’Scannlain that the penalty to the debtor for failing to schedule an intentional tort debt is the loss of the exclusive jurisdiction of the bankruptcy court to determine dischargeability within the strict time limits of Fed. R. BanKR.P. 4007(c). See, e.g., Irons v. Santiago (In re Santiago), 175 B.R. 48, 51 (9th Cir. BAP 1994); American Standard Ins. Co. v. Bakehorn, 147 B.R. at 484; In re Hicks, 184 B.R. 954, 960 (Bankr C.D.Cal.1995); In re Woolard, 190 B.R. 70, 73 (Bankr.E.D.Va.1995); Fidelity Nat’l Title Ins. Co. v. Franklin (In re Franklin), 179 B.R. 913, 921 (Bankr.E.D.Cal.1995) and In re Mendiola, 99 B.R. at 868. Other courts disagree. The leading case espousing the position that bankruptcy courts retain exclusive jurisdiction over unscheduled intentional tort debts is In re Padilla, 84 B.R. 194 (Bankr.D.Colo.1987). The court in Padilla stated that those who believe bankruptcy court jurisdiction is concurrent are wrong because they assume that the debt has already been determined to be an intentional tort debt; however, that is" }, { "docid": "18548125", "title": "", "text": "(6), and as Wolfe has conceded that he is not asserting such a cause of action, § 523(a)(3)(B) is inapplicable. . In recognition of this, Bankruptcy Rule 2002(e) allows a court to dispense with the necessity of filing proofs of claim in a no-asset case. Bankruptcy Rule 2002(e) provides: In a Chapter 7 liquidation case, if it appears from the schedules that there are no assets from which a dividend can be paid, the notice of the meeting of creditors may include a statement to that effect; that it is unnecessary to file claims; and that if sufficient assets become available for the payment of a dividend, further notice will be given for the filing of claims. . See In re Mendiola, 99 B.R. 864, 865 (Bankr.N.D.Ill.1989) (reopening the case to amend schedules would not affect the rights or liabilities of the parties, but would be an exercise in futility); In re Karamitsos, 88 B.R. 122 (Bankr.S.D.Tex.1988) (the filing of an amended creditor schedule after discharge has been granted in a no-asset Chapter 7 case has absolutely no effect on the dischargeability of the debt); In re Guzman, 130 B.R. 489 (Bankr.W.D.Tex.1991) (scheduling or not scheduling a creditor has no impact on whether the creditor’s claim is discharged; § 727 extends discharge to all prepetition debts and applies without regard to whether the debt is listed in the schedules). Accord In re Thibodeau, 136 B.R. 7 (Bankr.D.Mass.1992); In re Anderson, 72 B.R. 495 (Bankr.D.Minn.1987); In re Peacock, 139 B.R. 421 (Bankr.E.D.Mich.1992). . In view, however, of allegations of fraud in the transaction that gave rise to the underlying claim, the court did not decide whether the particular debt at issue was discharged. See In re Beezley, 994 F.2d at 1441. There, the creditor, Cal Land, in a memorandum filed in opposition to Beezley's motion to reopen, advised the court that it would seek to establish that the debt was nondischargeable under section 523(a)(3)(B). . We note that the bankruptcy court’s findings with respect to any prejudice suffered by Wolfe are of no moment. The type of prejudice alleged by Wolfe" }, { "docid": "19135432", "title": "", "text": "there were no assets in the liquidation case, no deadline for filing claims was set, in accordance with Bankruptcy Rule 2002(e); rather, creditors were notified that it would be unnecessary to file claims in view of the lack of distributable assets. Id. Ultimately, the trustee abandoned his interest in the marital home, the debtor received a discharge, and the case was closed. Id. In March, 1994, after the debtor’s bankruptcy case was closed, the first mortgagee, Mortgage Access Corporation, filed a complaint in foreclosure listing both the debtor and the creditor as defendants. Subsequently, the creditor sought indemnification from the debtor pursuant to their property settlement, and on August 15, 1994, the debtor filed a motion to reopen her Chapter 7 proceedings so that she could list the creditor and discharge her obligation to him. Id. Noting that no claims bar date had ever been set for the ease, the Judd panel concluded that not having been scheduled, the creditor could not have been prevented from “timely filing” a proof of claim. Id. at 114-15. Thus, since the unlisted debt was not an intentional tort debt to which section 523(a)(B) might apply, reopening of the case was deemed unnecessary to discharge the obligation at issue. Id. at 115 (citing In re Thibodeau, 136 B.R. 7 (Bankr.D.Mass.1992); In re Peacock, 139 B.R. 421 (Bankr.E.D.Mich.1992); In re Guzman, 130 B.R. 489 (Bankr.W.D.Tex.1991)) (scheduling or not scheduling a creditor has no impact on whether the creditor’s claim is discharged; section 727 extends discharge to all prepetition debts and applies without regard to whether the debt is listed in the schedules); In re Mendiola, 99 B.R. 864, 865 (Bankr.N.D.Ill.1989) (reopening the case to amend schedules would not affect the rights or liabilities of the parties, but would be an exercise in futility); In re Karamitsos, 88 B.R. 122 (Bankr.S.D.Tex.1988) (the filing of an amended creditor schedule after discharge has been granted in a no-asset Chapter 7 case has absolutely no effect on the dischargeability of the debt); In re Anderson, 72 B.R. 495 (Bankr.D.Minn.1987) (holding similarly). C. Impact of the Eleventh Circuit’s Baitcher Holding" }, { "docid": "12564228", "title": "", "text": "re Peacock, 139 B.R. 421, 424 (Bankr.E.D.Mich.1992); Walendy, 118 B.R. at 776. “Thus, in the typical no asset Chapter 7 case, where the no dividend statement of [rule] 2002(e) is utilized by the clerk and no claims bar date set, the prepetition dis-chargeable claim of an omitted creditor, being otherwise unaffected by § 523, remains discharged. In other words, in the typical Chapter 7 case, the debtor’s failure to list a creditor does not, in and of itself, make the creditor’s claim nondischargeable.” Corgiat, 123 B.R. at 391. Stated differently, where section 523 does not except a prepetition debt from discharge, the debt remains within the scope of the discharge afforded by section 727. Scheduling, per se, is irrelevant. See Mendiola, 99 B.R. at 867 (“since Section 523(a)(3)(A) does not apply, the debts the Debtor seeks to add to the schedules are already discharged, even though they were not listed or scheduled”); accord American Standard Ins. Co. v. Bakehorn, 147 B.R. 480, 487 (N.D.Ind.1992); Tyler, 139 B.R. at 735; Stecklow, 144 B.R. at 315; Tucker, 143 B.R. at 334; Peacock, 139 B.R. at 424; Thibodeau, 136 B.R. at 8. Since dischargeability is unaffected by scheduling in a no asset, no bar date case, “reopening the case merely to schedule the debt is for all practical purposes a useless gesture.” In re Hunter, 116 B.R. 3, 5 (Bankr.D.D.C.1990); accord American Standard, 147 B.R. at 483 (of “no legal effect”); Stecklow, 144 B.R. at 317 (“futile”); Tucker, 143 B.R. at 334 (“unnecessary” and “unwarranted”); Peacock, 139 B.R. at 422 (“pointless”); Thibodeau, 136 B.R. at 10 (“meaningless”). Similarly, even if an omitted debt falls under section 523(a)(3)(B), no purpose is served by reopening solely in order to amend the schedules; scheduling, per se, is irrelevant to dischargeability even under this sub-paragraph once a ease is closed. As noted above, section 523(a)(3)(B) provides that, if the debt flows from an intentional tort “of a kind specified” in the relevant paragraphs, the debtor’s failure to schedule in time to provide notice to the creditor of the need to seek an adjudication of dischargeability is conclusive" }, { "docid": "371147", "title": "", "text": "simply to amend schedules does nothing to affect the discharge of a debt. E.g. Judd v. Wolfe, 78 F.3d 110, 115 (3d Cir.1996); Beezley v. California Land Title Co. (In re Beezley), 994 F.2d 1433, 1434 (9th Cir.1993); In re Mendiola, 99 B.R. 864, 865 (Bankr.N.D.Ill.1989); In re Anderson, 72 B.R. 495, 497 (Bankr.D.Minn.1987). This conclusion was recently reached by the Court of Appeals for the Third Circuit in Judd. Because the Court finds the analysis by the Third Circuit to be clear and complete, the Court adopts the following findings of the Third Circuit: Section 727(b) of the Bankruptcy Code defines the scope of a Chapter 7 debtor’s discharge: “Except as provided in section 523 of this title, a discharge under subsection (a) of this section discharged [sic] the debtor from all debts that arose before the date of the order for relief under this chapter....” 11 U.S.C. § 727(b). (Emphasis added.) As other courts have observed, “The operative word in this section is ‘all.’ ” In re Beezley, 994 F.2d 1433, 1435 (9th Cir.1993) (citing In re Mendiola, 99 B.R. 864, 865 (Bankr.N.D.Ill.1989) (regarding § 727(b), a prebankruptcy debt is discharged whether or not it is scheduled); In re Stecklow, 144 B.R. 314, 317 (Bankr.D.Md.1992) (“breadth of the discharge” under section 727 is “comprehensive”) and In re Thibodeau, 136 B.R. 7, 8 (Bankr.D.Mass.1992) (“§ 727(b) itself makes no exception for unlisted debts”)). Because section 727(b), on its face, does not create an exception for unlisted or unscheduled debts, every prepetition debt is discharged under section 727(b) subject to the provisions of section 523(a)(3). We thus turn to section 523(a)(3). Section 523(a)(3) creates two categories of unscheduled debts: (1) those that are “of a kind specified in paragraphs (2), (4), or (6) of this subsection,” and (2) those that are not of such kind. Those debts that are not of the kind specified in paragraphs (2), (4), or (6) of section 523(a) are resolved by reference to section 523(a)(3)(A). [Footnote added.] Section 523(a)(3)(A) excepts from discharge certain debts that were: Neither listed nor scheduled ... in time to permit" }, { "docid": "12625171", "title": "", "text": "Bowman (In re Maroney), 195 B.R. 452 (Bankr.D.Ariz.1996); In re Cates, 183 B.R. 723 (Bankr.M.D.N.C.1995); Stucker v. Cardinal Building Materials, Inc. (In re Stucker), 153 B.R. 219 (Bankr.N.D.Ill.1993); In re Humar, 163 B.R. 296 (Bankr.N.D.Ohio 1993); In re Thibodeau, 136 B.R. 7 (Bankr.D.Mass.1992); In re Stecklow, 144 B.R. 314 (Bankr.D.Md.1992); In re Guzman, 130 B.R. 489 (Bankr.W.D.Tex.1991); In re Hunter, 116 B.R. 3 (Bankr.D.C.1990); In re Mendiola, 99 B.R. 864 (Bankr.N.D.Ill.1989); In re Karamitsos, 88 B.R. 122 (Bankr.S.D.Tex.1988); In re Anderson, 72 B.R. 495 (Bankr.D.Minn.1987). Enterprise relies on a Second Circuit Court of Appeals decision rendered in 1946 that held that it was error to permit the reopening of a Chapter 7 no asset case to add an omitted creditor. Milando v. Perrone, 157 F.2d 1002. It is clear from the decision in Milando that the court approached its decision from the viewpoint that its decision affected whether the debt was discharged. The court in Milando relied upon former Sec. 17, sub. a(3), of the Bankruptcy Act, 11 U.S.C. § 35, which provided that a debt will not be discharged if the creditor does not have notice or actual knowledge of the proceedings. Id. at 1003. The court noted that it did not have the power to disregard the stated provision, and that the time for filing proofs of claim had expired. Id. at 1003-04. The applicable statutory section is now § 523(a), which, pursuant to § 523(a)(3)(A), does not discharge a debt that was not listed or scheduled in time to permit timely filing of a proof of claim. However, as stated earlier, under the Bankruptcy Rules, unlike the former Bankruptcy Act, proofs of claim need not be filed in a no asset case. Under such circumstances, a notice of no distribution is usually sent to all creditors pursuant to Bankruptcy Rule 2002(e). Enterprise further cites decisions that follow and cite Milando as good law. But see In re Maddox, 62 B.R. 510, 513 (Bankr.E.D.N.Y.1986) (noting that the authority of the Milando decision has been eroded). However, Milando and those decisions cited by Enterprise as following Milando can be" }, { "docid": "12625170", "title": "", "text": "1433. The Sixth Circuit Court of Appeals perhaps best summarized the split of authorities as follows: This confusion is due, in part, to a line of cases that perpetuates the erroneous view that once his case is closed, the debtor must have his case reopened in order to discharge a pre-petition debt not listed in the bankruptcy petition; once the case is reopened, the debtor amends his schedules to list the debt, and the now-scheduled debt is covered by the discharge. But this is not the law. Madaj, 149 F.3d at 468. The Sixth Circuit found that reopening the bankruptcy case to schedule a previously unlisted debt in a no asset case has no effect on the dis-chargeability of the debt. Id. at 472. Other courts have ruled similarly. See In re Herzig, 238 B.R. 5 (E.D.N.Y.1998); American Standard Ins. Co. v. Bakehorn, 147 B.R. 480 (N.D.Ind.1992); In re Wells, 246 B.R. 268 (Bankr.E.D.Ky.2000); Keenom v. All America Marketing (In re Keenom), 231 B.R. 116 (Bankr.M.D.Ga.1999); In re McDaniel, 217 B.R. 348 (Bankr.N.D.Ga.1998); Maroney v. Bowman (In re Maroney), 195 B.R. 452 (Bankr.D.Ariz.1996); In re Cates, 183 B.R. 723 (Bankr.M.D.N.C.1995); Stucker v. Cardinal Building Materials, Inc. (In re Stucker), 153 B.R. 219 (Bankr.N.D.Ill.1993); In re Humar, 163 B.R. 296 (Bankr.N.D.Ohio 1993); In re Thibodeau, 136 B.R. 7 (Bankr.D.Mass.1992); In re Stecklow, 144 B.R. 314 (Bankr.D.Md.1992); In re Guzman, 130 B.R. 489 (Bankr.W.D.Tex.1991); In re Hunter, 116 B.R. 3 (Bankr.D.C.1990); In re Mendiola, 99 B.R. 864 (Bankr.N.D.Ill.1989); In re Karamitsos, 88 B.R. 122 (Bankr.S.D.Tex.1988); In re Anderson, 72 B.R. 495 (Bankr.D.Minn.1987). Enterprise relies on a Second Circuit Court of Appeals decision rendered in 1946 that held that it was error to permit the reopening of a Chapter 7 no asset case to add an omitted creditor. Milando v. Perrone, 157 F.2d 1002. It is clear from the decision in Milando that the court approached its decision from the viewpoint that its decision affected whether the debt was discharged. The court in Milando relied upon former Sec. 17, sub. a(3), of the Bankruptcy Act, 11 U.S.C. § 35, which provided that a" }, { "docid": "12564219", "title": "", "text": "Tucker, 143 B.R. 330, 334 (Bankr.W.D.N.Y.1992); In re Peacock, 139 B.R. 421, 422 (Bankr.E.D.Mich.1992); In re Thibodeau, 136 B.R. 7, 10 (Bankr.D.Mass.1992); In re Hunter, 116 B.R. 3, 5 (Bankr.D.D.C.1990); In re Mendiola, 99 B.R. 864, 865 (Bankr.N.D.Ill.1989). If the omitted debt is of a type covered by 11 U.S.C. § 523(a)(3)(A), it has already been discharged pursuant to 11 U.S.C. § 727. If the debt is of a type covered by 11 U.S.C. § 523(a)(3)(B), it has not been discharged, and is non-dischargeable. In sum, reopening here in order to grant Beezley’s request would not have “accord[ed] relief to” Beez-ley; thus, there was no abuse of discretion. AFFIRMED. . We express no opinion as to whether the omitted debt was or was not discharged. O’SCANNLAIN, Circuit Judge, concurring: The simple question with which we are presented — whether the bankruptcy court abused its discretion by denying the debtor’s motion to reopen — requires, in my view, more than a simple answer. I write separately to address certain matters that the per curiam opinion does not discuss, but which are squarely presented on the record before us and implicate important principles of bankruptcy law. I Beezley filed for bankruptcy under Chapter 7 on June 10, 1987. Because he had no assets available for distribution to his creditors in bankruptcy, no bar date was set by the court establishing a deadline for creditors to file proofs of claim. Three years earlier, California Land Title Co. (“Cal Land”) had obtained a default judgment against Beezley in California state court arising out of a 1979 transaction in which Beezley was the seller and Cal Land the title insurer of certain real property. Beezley made no mention of Cal Land’s claim or of its judgment against him in any of his schedules. Consequently, Cal Land did not receive notice of Beezley’s bankruptcy. Beezley received his discharge on November 6, 1987, and his case was thereafter closed. In January 1990, Beezley moved to reopen his bankruptcy case for the purpose of amending his schedules to add the omitted debt to Cal Land. Cal Land filed" }, { "docid": "12489018", "title": "", "text": "denied the Debtors’ motion to reopen, but held that the debt to the Creditors was nonetheless discharged, and the District Court affirmed. The Creditors timely appealed. We now AFFIRM. “ ‘[I]n- appeals from the decision of a district court on appeal from the bankruptcy court, the court of appeals independently reviews the bankruptcy court’s decision, applying the clearly erroneous standard to findings of fact and de novo review to conclusions of law.’ ” In re Chavis, 47 F.3d 818, 821 (6th Cir.1995) (brackets in original) (quoting In re Century Boat Co., 986 F.2d 154, 156 (6th Cir.1993)). The confusion in the district and circuit courts concerning unlisted Chapter 7 debts in a no-asset ease, including the dischargeability of such-debts,- the effect of an order of discharge on such debts, and the efficacy of reopening a bankruptcy ease to include them, is widespread. This confusion is due, in part, to a line of cases that perpetuates the erroneous view that once his case is closed, the debtor must have his case reopened in order to discharge a pre-petition debt not listed in the bankruptcy petition; once the case is reopened, the debtor amends his schedules to list the debt, and the now-scheduled debt is covered by the discharge. But this is not the law. In a Chapter 7 no-asset ease such as this, “reopening the case merely to schedule [an omitted] debt is for all practical purposes a useless gesture.” In re Hunter, 116 B.R. 3, 5 (Bankr.D.D.C.1990). See also, In re Peacock, 139 B.R. 421 (Bkrtcy.E.D.Mich.1992); In re Thibodeau, 136 B.R. 7, 10 (Bankr.D.Mass.1992); In re Karamitsos, 88 B.R. 122 (Bankr.S.D.Tex.1988); In re Mendiola, 99 B.R. 864 (Bankr.N.D.Ill.1989); In re Anderson, 72 B.R. 783 (Bankr.D.Minn.1987). Under these circumstances, amending the schedule is pointless because, as we shall explain, this debt is discharged and reopening the cáse and scheduling the debt cannot affect that fact. The law in this area is counter-intuitive, and requires a careful fitting together of the relevant sections of the Bankruptcy Code and Rules. Because of the confusion in this area, a review of the provisions governing" }, { "docid": "1183350", "title": "", "text": "without prejudice to the filing of an adversary proceeding under section 523(a)(3). An appropriate order will issue. . This is a summary of facts pertinent to this opinion. Formal findings of fact and conclusions of law have been entered separately. . In California, no payment pursuant to execution levy is permitted from a deposit account in the name of a person other than the judgment debtor until after that other person is given notice: (c) In any case where a deposit account in the name of a person other than the judgment debtor, whether alone or together with the judgment debtor, is levied upon, the financial institution shall not pay to the levying officer the amount levied upon until being notified to do so by the levying officer. The levying officer may not require the financial institution to pay the amount levied upon until the expiration of 15 days after service of notice of levy on the third person. Cal.Code Civ.Proc. § 700.160(c). In the interim, the financial institution must freeze funds sufficient to pay the amount levied upon: (c) During the time the execution lien is in effect, the financial institution shall not honor a check or other order for the payment of money drawn against, and shall not pay a withdrawal from, the deposit account that would reduce the deposit account to an amount less than the amount levied upon. For the purposes of this subdivision, in determining the amount of the deposit account, the financial institution shall not include the amount of items deposited to the credit of the deposit account that are in the process of being collected. Cal.Code Civ.Proc. § 700.140(c). .In re Anderson, 72 B.R. 495 (Bankr.D.Minn.1987) (Kressel, J.); In re Karamitsos, 88 B.R. 122 (Bankr.S.D.Tex.1988) (Mahoney, J.); In re Padilla, 84 B.R. 194 (Bankr.D.Colo.1987) (Brumbaugh, J.); In re Mendiola, 99 B.R. 864, 868 (Bankr.N.D.Ill.1989) (Barliant, J.); In re Hunter, 116 B.R. 3 (Bankr.D.D.C.1990) (Teel, J.); In re Guzman, 130 B.R. 489 (Bankr.W.D.Tex.1991) (L. Clark, J.); In re Thibodeau, 136 B.R. 7 (D.Mass.1992) (Kenner, J.); Peacock v. State Farm Mutual Auto. Ins. Co. (In" }, { "docid": "1183351", "title": "", "text": "the amount levied upon: (c) During the time the execution lien is in effect, the financial institution shall not honor a check or other order for the payment of money drawn against, and shall not pay a withdrawal from, the deposit account that would reduce the deposit account to an amount less than the amount levied upon. For the purposes of this subdivision, in determining the amount of the deposit account, the financial institution shall not include the amount of items deposited to the credit of the deposit account that are in the process of being collected. Cal.Code Civ.Proc. § 700.140(c). .In re Anderson, 72 B.R. 495 (Bankr.D.Minn.1987) (Kressel, J.); In re Karamitsos, 88 B.R. 122 (Bankr.S.D.Tex.1988) (Mahoney, J.); In re Padilla, 84 B.R. 194 (Bankr.D.Colo.1987) (Brumbaugh, J.); In re Mendiola, 99 B.R. 864, 868 (Bankr.N.D.Ill.1989) (Barliant, J.); In re Hunter, 116 B.R. 3 (Bankr.D.D.C.1990) (Teel, J.); In re Guzman, 130 B.R. 489 (Bankr.W.D.Tex.1991) (L. Clark, J.); In re Thibodeau, 136 B.R. 7 (D.Mass.1992) (Kenner, J.); Peacock v. State Farm Mutual Auto. Ins. Co. (In re Peacock), 139 B.R. 421 (Bankr.E.D.Mich.1992) (Spector, J.); American Credit Servs., Inc. v. Tucker (In re Tucker), 143 B.R. 330 (Bankr.W.D.N.Y.1992) (Ninfo, J.); In re Stecklow, 144 B.R. 314 (Bankr.D.Md.1992) (Mannes, J.). . See Keever v. Tyler (In re Tyler), 139 B.R. 733 (D.Colo.1992); American Standard Ins. Co. v. Bakehom, 147 B.R. 480 (N.D.Ind.1992). . If there is so much harmony, why bother to publish these decisions? The answer is, as discussed by the concurrence in Beezley described in the next footnote, there is a puzzling persistence of the false assumption that amending schedules matters. As noted above, this old habit is dying hard. . The concurrence emphasizes that the bankruptcy court and the bankruptcy appellate panel had reached the right result for the wrong reason. It notes that neither of the lower courts had applied the reasoning of the per curiam opinion and the line of cases typified by Mendiola and Peacock in which the motive behind the omission is legally irrelevant in a no-asset, no-bar-date case. Instead, they had labored under the very" }, { "docid": "12564241", "title": "", "text": "All references are to the Bankruptcy Code, Title 11, United States Code. . That the Stark case proceeds on this erroneous premise has been repeatedly recognized in the bankruptcy courts. See In re Peacock, 139 B.R. 421, 426 & n. 9 (Bankr.E.D.Mich.1992) (warning against \"misplaced reliance on confusing comments in Stark \"[T]he train began to run off the track when the lawyers in Stark misperceived the issue. The Seventh Circuit failed to put the train back on the track in time to prevent the analytical chaos which has ensued.”); In re Thibodeau, 136 B.R. 7, 10 (Bankr.D.Mass.1992) (Stark \"is based upon the unexamined assumption ... that in a no-asset case where no claim filing deadline has been fixed, a debt must be listed in order to be discharged”); In re Guzman, 130 B.R. 489, 491 n. 4 (Bankr.W.D.Tex.1991) (Stark \"erroneously assumed that, unless the case were re-opened as the debtor requested, the creditor's claim would not be discharged”); In re Musgraves, 129 B.R. 119, 121 n. 6 (Bankr.W.D.Tex.1991) (same); In re Bulbin, 122 B.R. 161, 161 (Bankr.D.D.C.1990) (refusing to follow \"dicta in [Stark ] which assumed for purposes of decision and without discussion that listing of an omitted creditor was necessary to make the omitted creditor's claim dischargeable”); In re Hunter, 116 B.R. 3, 5 (Bankr.D.D.C.1990) (same); In re Crull, 101 B.R. 60, 61 (Bankr.W.D.Ark.1989) (Stark \"incorrectly assume[d] that if a case is reopened and an omitted creditor’s claim is listed by amendment, the discharge automatically and retroactively applies\"); In re Mendiola, 99 B.R. 864, 868 (Bankr.N.D.Ill.1989) (\"it is clear from the opinion in Stark that the Court assumed that the purpose that would be served by the reopening and addition of the omitted creditor was the discharge of that creditor's claim”); In re Anderson, 72 B.R. 495, 496 (Bankr.D.Minn.1987) (Stark is \"based on false premises regarding the nature and effect of a discharge”). . There need be no concern that applying section 523(a)(3) according to its terms will encourage debtors to ignore their obligation to list all claims in their schedules. A debtor must declare under penalty of perjury" }, { "docid": "18510403", "title": "", "text": "MEMORANDUM OF DECISION ON MOTION TO REOPEN CAROL J. KENNER, Bankruptcy Judge. The Debtor, Leigh Raymond Thibodeau, has moved to reopen his case under Chapter 7 of the Bankruptcy Code in order to amend his schedule of creditors with the name of one creditor, David Piacenza, whom to date he has failed to list. The Court sees this kind of motion with regularity. Its facts are typical. After the Debtor received a discharge, his Chapter 7 case was closed as a no-asset case (that is, without assets having been discovered with which to pay a dividend). In accordance with Bankruptcy Rule 2002(e), no deadline for the filing of claims was set; rather, creditors were notified that it was unnecessary to file claims. However, in accordance with Bankruptcy Rule 4007(c), a deadline for filing complaints under 11 U.S.C. § 523(c) to determine the dischargeability of certain debts was set; and the deadline passed before the case was closed. The Debtor’s motion and others like it are predicated on the belief that by amending the schedules, an otherwise undischarged debt would become discharged. This is a misunderstanding of the law. As other courts have held, “the filing of an amended schedule listing an omitted or incorrectly listed creditor after the discharge has been entered, in a no-asset chapter 7 case where no claim filing period has ever been fixed under Bankruptcy Rules 2002(e) and 3002(c)(5), has no effect on the determination of the dischargeability of the debt.” In re Anderson, 72 B.R. 495, 497 (Bankr.D.Minn.1987); see also In re Mendiola, 99 B.R. 864 (Bankr.N.D.Ill.1989); In re Karamitsos, 88 B.R. 122 (Bankr.S.D.Tex.1988); In re Padilla, 84 B.R. 194, 197 (Bankr.D.Colo.1987); and In re Crull, 101 B.R. 60, 62 (Bankr.W.D.Ark.1989). In other words, in this kind of case, “the scope of a discharge is final when entered” and is not altered by subsequent events, including amendment of the list of creditors. In re Anderson, 72 B.R. at 496. This becomes evident upon analysis of §§ 727(b) and 523(a) and (c) of the Bankruptcy Code, the sections that fix the scope of a discharge entered" }, { "docid": "19135433", "title": "", "text": "Thus, since the unlisted debt was not an intentional tort debt to which section 523(a)(B) might apply, reopening of the case was deemed unnecessary to discharge the obligation at issue. Id. at 115 (citing In re Thibodeau, 136 B.R. 7 (Bankr.D.Mass.1992); In re Peacock, 139 B.R. 421 (Bankr.E.D.Mich.1992); In re Guzman, 130 B.R. 489 (Bankr.W.D.Tex.1991)) (scheduling or not scheduling a creditor has no impact on whether the creditor’s claim is discharged; section 727 extends discharge to all prepetition debts and applies without regard to whether the debt is listed in the schedules); In re Mendiola, 99 B.R. 864, 865 (Bankr.N.D.Ill.1989) (reopening the case to amend schedules would not affect the rights or liabilities of the parties, but would be an exercise in futility); In re Karamitsos, 88 B.R. 122 (Bankr.S.D.Tex.1988) (the filing of an amended creditor schedule after discharge has been granted in a no-asset Chapter 7 case has absolutely no effect on the dischargeability of the debt); In re Anderson, 72 B.R. 495 (Bankr.D.Minn.1987) (holding similarly). C. Impact of the Eleventh Circuit’s Baitcher Holding on Section 523(a) (3)’s Application. Notwithstanding arguments by the Creditor to the contrary, the foregoing line of precedent may easily be reconciled with the Eleventh Circuit’s holding in Samuel v. Baitcher (In re Baitcher), 781 F.2d 1529 (1986). In Baitcher, the Court found itself faced with a debtor who had omitted the claim of her injured employee, despite being an active participant in the litigation over that debt at the time of filing. Noting that the involved case was one of no assets, and as such the debtor might have a statutory right to discharge under section 523(a)(3)(A), the Baitcher panel nonetheless concluded that equity would compel a different outcome, if evidence demonstrated that the creditor’s omission had arisen from intentional design or fraud on the debtor’s part. Id. at 1533 (quoting In re International Horizons, Inc., 751 F.2d 1213, 1216 (11th Cir.1985) (“[i]t is well accepted that the, bankruptcy court is guided by the principles of equity, and that the court will act to assure that fraud will not prevail, that substance will not" }, { "docid": "12564229", "title": "", "text": "143 B.R. at 334; Peacock, 139 B.R. at 424; Thibodeau, 136 B.R. at 8. Since dischargeability is unaffected by scheduling in a no asset, no bar date case, “reopening the case merely to schedule the debt is for all practical purposes a useless gesture.” In re Hunter, 116 B.R. 3, 5 (Bankr.D.D.C.1990); accord American Standard, 147 B.R. at 483 (of “no legal effect”); Stecklow, 144 B.R. at 317 (“futile”); Tucker, 143 B.R. at 334 (“unnecessary” and “unwarranted”); Peacock, 139 B.R. at 422 (“pointless”); Thibodeau, 136 B.R. at 10 (“meaningless”). Similarly, even if an omitted debt falls under section 523(a)(3)(B), no purpose is served by reopening solely in order to amend the schedules; scheduling, per se, is irrelevant to dischargeability even under this sub-paragraph once a ease is closed. As noted above, section 523(a)(3)(B) provides that, if the debt flows from an intentional tort “of a kind specified” in the relevant paragraphs, the debtor’s failure to schedule in time to provide notice to the creditor of the need to seek an adjudication of dischargeability is conclusive (at least in the absence of actual knowledge of the bankruptcy on the part of the creditor). The debt is not discharged. “Scheduling makes no difference to outcome. ‘Reopening a case does not extend the time to file complaints to determine dischargeability. Either the creditor had actual, timely notice of the [case] or he didn’t. Amending the schedules will not change that.’ ” Mendiola, 99 B.R. at 868 (quoting In re Karamitsos, 88 B.R. 122, 123 (Bankr.S.D.Tex.1988)); accord American Standard, 147 B.R. at 484; Thibodeau, 136 B.R. at 10. Ill Beezley moved to reopen his bankruptcy case in order to add the omitted debt to Cal Land to his schedules, apparently in the mistaken belief that by amending his schedules he would discharge the debt. Cal Land, upon receiving notice of Beezley’s motion, vigorously opposed it, also, apparently, under the mistaken impression that the listing of the previously omitted debt would accomplish its discharge. As the analysis set forth above shows, however, because Beezley’s was a no-asset, no-bar-date Chapter 7 proceeding, the amendment of Beezley’s" }, { "docid": "12564227", "title": "", "text": "not file a proof of claim unless and until the clerk sends notice that non-exempt assets have been located which may permit a dividend to be paid. Bankr.Rule 3002(c)(5). In practice, “[t]he exception has now subsumed the rule, so that in most eases there is no time limit (bar date) set by the Clerk’s office for creditors to file their proofs of claim.” In re Corgiat, 123 B.R. 388, 389 (Bankr.E.D.Cal.1991). See In re Tucker, 143 B.R. 330, 332 (Bankr.W.D.N.Y.1992). The critical point here is that in most cases filed under Chapter 7 (i.e., no asset, no bar date cases), “the date to file claims is never set and thus § 523(a)(3)(A) is not triggered.” In re Walendy, 118 B.R. 774, 775 (Bankr.C.D.Cal.1990). That is, in a no asset, no bar date case, section 523(a)(3)(A) is not implicated “because there can never be a time when it is too late ‘to permit timely filing of a proof of claim.’ ” Mendiola, 99 B.R. at 867. See In re Tyler, 139 B.R. 733, 735 (D.Colo.1992); In re Peacock, 139 B.R. 421, 424 (Bankr.E.D.Mich.1992); Walendy, 118 B.R. at 776. “Thus, in the typical no asset Chapter 7 case, where the no dividend statement of [rule] 2002(e) is utilized by the clerk and no claims bar date set, the prepetition dis-chargeable claim of an omitted creditor, being otherwise unaffected by § 523, remains discharged. In other words, in the typical Chapter 7 case, the debtor’s failure to list a creditor does not, in and of itself, make the creditor’s claim nondischargeable.” Corgiat, 123 B.R. at 391. Stated differently, where section 523 does not except a prepetition debt from discharge, the debt remains within the scope of the discharge afforded by section 727. Scheduling, per se, is irrelevant. See Mendiola, 99 B.R. at 867 (“since Section 523(a)(3)(A) does not apply, the debts the Debtor seeks to add to the schedules are already discharged, even though they were not listed or scheduled”); accord American Standard Ins. Co. v. Bakehorn, 147 B.R. 480, 487 (N.D.Ind.1992); Tyler, 139 B.R. at 735; Stecklow, 144 B.R. at 315; Tucker," }, { "docid": "1183352", "title": "", "text": "re Peacock), 139 B.R. 421 (Bankr.E.D.Mich.1992) (Spector, J.); American Credit Servs., Inc. v. Tucker (In re Tucker), 143 B.R. 330 (Bankr.W.D.N.Y.1992) (Ninfo, J.); In re Stecklow, 144 B.R. 314 (Bankr.D.Md.1992) (Mannes, J.). . See Keever v. Tyler (In re Tyler), 139 B.R. 733 (D.Colo.1992); American Standard Ins. Co. v. Bakehom, 147 B.R. 480 (N.D.Ind.1992). . If there is so much harmony, why bother to publish these decisions? The answer is, as discussed by the concurrence in Beezley described in the next footnote, there is a puzzling persistence of the false assumption that amending schedules matters. As noted above, this old habit is dying hard. . The concurrence emphasizes that the bankruptcy court and the bankruptcy appellate panel had reached the right result for the wrong reason. It notes that neither of the lower courts had applied the reasoning of the per curiam opinion and the line of cases typified by Mendiola and Peacock in which the motive behind the omission is legally irrelevant in a no-asset, no-bar-date case. Instead, they had labored under the very error that Mendiola and Peacock sought to dispel and had treated the Seventh Circuit's Stark decision as authoritative when they inquired whether fraud or intentional design lay behind the omission, apparently thinking that they were adjudicating the dischargeability of Beezley's debt when addressing the motion to reopen. The remainder of the concurrence is a detailed critique of Stark in the context of no-asset, no-bar-date cases. Beezley, 994 F.2d at 1434 — 41. . The debt is not alleged to qualify for nondis-chargeability under section 523(a)(2), (4), or (6). . No-asset cases sometimes do have bar dates set. First, bar dates are fixed in all cases that start as asset cases, but wind up with no assets. Second, in cases that start as no-asset chapter 7 cases, the initial decision of whether to fix a bar date is a discretionary matter of sound administration by the clerk of the court who is permitted, but not required,, to include in the notice of meeting of creditors issued pursuant to Federal Rule of Bankruptcy Procedure 2002(a)(1) a notice" }, { "docid": "18548126", "title": "", "text": "has absolutely no effect on the dischargeability of the debt); In re Guzman, 130 B.R. 489 (Bankr.W.D.Tex.1991) (scheduling or not scheduling a creditor has no impact on whether the creditor’s claim is discharged; § 727 extends discharge to all prepetition debts and applies without regard to whether the debt is listed in the schedules). Accord In re Thibodeau, 136 B.R. 7 (Bankr.D.Mass.1992); In re Anderson, 72 B.R. 495 (Bankr.D.Minn.1987); In re Peacock, 139 B.R. 421 (Bankr.E.D.Mich.1992). . In view, however, of allegations of fraud in the transaction that gave rise to the underlying claim, the court did not decide whether the particular debt at issue was discharged. See In re Beezley, 994 F.2d at 1441. There, the creditor, Cal Land, in a memorandum filed in opposition to Beezley's motion to reopen, advised the court that it would seek to establish that the debt was nondischargeable under section 523(a)(3)(B). . We note that the bankruptcy court’s findings with respect to any prejudice suffered by Wolfe are of no moment. The type of prejudice alleged by Wolfe is legally irrelevant to discharge pursuant to sections 727(b) and 523." }, { "docid": "12489019", "title": "", "text": "a pre-petition debt not listed in the bankruptcy petition; once the case is reopened, the debtor amends his schedules to list the debt, and the now-scheduled debt is covered by the discharge. But this is not the law. In a Chapter 7 no-asset ease such as this, “reopening the case merely to schedule [an omitted] debt is for all practical purposes a useless gesture.” In re Hunter, 116 B.R. 3, 5 (Bankr.D.D.C.1990). See also, In re Peacock, 139 B.R. 421 (Bkrtcy.E.D.Mich.1992); In re Thibodeau, 136 B.R. 7, 10 (Bankr.D.Mass.1992); In re Karamitsos, 88 B.R. 122 (Bankr.S.D.Tex.1988); In re Mendiola, 99 B.R. 864 (Bankr.N.D.Ill.1989); In re Anderson, 72 B.R. 783 (Bankr.D.Minn.1987). Under these circumstances, amending the schedule is pointless because, as we shall explain, this debt is discharged and reopening the cáse and scheduling the debt cannot affect that fact. The law in this area is counter-intuitive, and requires a careful fitting together of the relevant sections of the Bankruptcy Code and Rules. Because of the confusion in this area, a review of the provisions governing dischargeability of debts and the effect of a discharge in a Chapter 7 proceeding is in order. At the risk of appearing simplistic, we can summarize the relevant provisions as follows: A discharge under 11 U.S.C. § 727 discharges every prepetition debt, without regard to whether a proof of claim has been filed, unless that debt is specifically excepted from discharge under 11 U.S.C. § 523. Section 523(a)(3) contains the only exceptions for unlisted and unscheduled debts. Section 523(a)(3)(B) excepts from discharge those debts originally incurred by means of fraud, false pretenses, or malicious conduct, as enumerated in §§ 523(a)(2), (4), and (6), (hereinafter “fraudulent” or “fraudulently incurred” debts). Section 523(a)(3)(A) excepts from discharge all other debts — ie., debts other than those fraudulent debts specified in § 523(a)(2), (4), or (6)-which are not listed by the debtor in his petition and schedules in time for the.creditor to file a timely proof of claim. However, even 523(a)(3)(A) does not except an unscheduled debt from discharge if the creditor had notice or actual knowledge of the" }, { "docid": "12564218", "title": "", "text": "PER CURIAM: Debtor Gilbert G. Beezley appeals the decision of the Ninth Circuit BAP, affirming the bankruptcy court’s denial of his motion to reopen his bankruptcy case under 11 U.S.C. § 350(b). We have jurisdiction pursuant to 28 U.S.C. § 158(d), and we affirm. Beezley argues that the bankruptcy court abused its discretion by failing to grant his motion to reopen his case. See In re Herzig, 96 B.R. 264, 266 (9th Cir. BAP 1989) (bankruptcy court’s refusal to reopen a closed case under 11 U.S.C. § 350(b) reviewed for an abuse of discretion). We disagree. Based on the assumption that amendment was necessary to discharge the debt, Beezley sought to add an omitted debt to his schedules. Beezley’s, however, was a no asset, no bar date Chapter 7 case. After such a case has been closed, dischargeability is unaffected by scheduling; amendment of Beezley’s schedules would thus have been a pointless exercise. See American Standard Ins. Co. v. Bakehorn, 147 B.R. 480, 483 (N.D.Ind.1992); In re Stecklow, 144 B.R. 314, 317 (Bankr.D.Md.1992); In re Tucker, 143 B.R. 330, 334 (Bankr.W.D.N.Y.1992); In re Peacock, 139 B.R. 421, 422 (Bankr.E.D.Mich.1992); In re Thibodeau, 136 B.R. 7, 10 (Bankr.D.Mass.1992); In re Hunter, 116 B.R. 3, 5 (Bankr.D.D.C.1990); In re Mendiola, 99 B.R. 864, 865 (Bankr.N.D.Ill.1989). If the omitted debt is of a type covered by 11 U.S.C. § 523(a)(3)(A), it has already been discharged pursuant to 11 U.S.C. § 727. If the debt is of a type covered by 11 U.S.C. § 523(a)(3)(B), it has not been discharged, and is non-dischargeable. In sum, reopening here in order to grant Beezley’s request would not have “accord[ed] relief to” Beez-ley; thus, there was no abuse of discretion. AFFIRMED. . We express no opinion as to whether the omitted debt was or was not discharged. O’SCANNLAIN, Circuit Judge, concurring: The simple question with which we are presented — whether the bankruptcy court abused its discretion by denying the debtor’s motion to reopen — requires, in my view, more than a simple answer. I write separately to address certain matters that the per curiam opinion does" } ]

[ { "docid": "20496918", "title": "", "text": "for purposes of the well-pleaded complaint rule. Id. (citation omitted). The doctrine is applied primarily where a plaintiff asserts claims that are preempted by § 301 of the Labor Management Relations Act (“the LMRA”), 29 U.S.C. § 185(a). See id. Section 301 grants federal courts jurisdiction over “[sjuits for violation of contracts between an employer and a labor organization representing employees.” 29 U.S.C. § 185(a). Case law interpreting that statute has evolved to provide that any claims “substantially dependent on analysis of a collective-bargaining agreement” are subject to complete preemption. See Caterpillar, 482 U.S. at 394, 107 S.Ct. 2425 (quoting Int’l Bhd. of Elec. Workers v. Heckler, 481 U.S. 851, 859 n. 3,107 S.Ct. 2161, 95 L.Ed.2d 791 (1987)) (internal quotation marks omitted). Thus, where a plaintiff alleges conduct that arguably constitutes a breach of a duty that arises pursuant to a collective bargaining agreement, or if the plaintiffs claims “arguably hinge[ ] upon the interpretation” of such an agreement, § 301 preempts. See Flibotte v. Pa. Truck Lines, Inc., 131 F.3d 21, 26 (1st Cir.1997) (citations omitted). A defense that raises a § 301 issue is insufficient to overcome the well-pleaded complaint rule. Caterpillar, 482 U.S. at 399-400, 107 S.Ct. 2425. Only where resolution of the plaintiffs claims (and not a defense to those claims) requires interpretation of a collective bargaining agreement is removal appropriate. B. Application Plaintiffs maintain that federal jurisdiction is inappropriate in this case because their claims are based entirely on state law. The Globe responds that, although cast in state law terms, resolution of plaintiffs’ claims will require interpretation of the CBA and therefore the claims are preempted under § 301 of the LMRA. Plaintiffs’ complaint asserts claims for breach of an implied contract, breach of the implied covenant of good faith and fair dealing, unjust enrichment, promissory estoppel, conversion and violation of M.G.L. c. 151, § 1A. Setting aside for the moment the statutory claim, Plaintiffs’ remaining claims all depend upon the existence of an implied obligation or duty on the part of the Globe to provide coffee breaks (or, in the alternative, to" } ]

[ { "docid": "4193596", "title": "", "text": "allegations and the labels used to describe her claims and ... evaluate the substance of plaintiffs claims.” Paul v. Kaiser Found. Health Plan, 701 F.3d 514, 519 (6th Cir.2012) (emphasis in original). Although complete preemption sweeps away many state-law theories and re-classifies them as federal, it has its limits. The Supreme Court has made clear that preemption does not extend to every state law that touches upon rights governed by Section 301—that is, rights that may have some connection to a CBA. See Lingle, 486 U.S. at 412-13, 108 S.Ct. 1877. Rather, only those state-law claims that require “interpretation” of a CBA are inevitably federal. Douglas v. Am. Info. Techs. Corp., 877 F.2d 565, 569-70 (7th Cir.1989); see also Atchley v. Cable Vision Assocs., 101 F.3d 495, 499 (7th Cir.1996). Put another way, a state-law claim is “completely preempted” only when it is “inextricably intertwined with consideration of the terms of the labor contract.” Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 213, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985). Factual overlap between a state-law claim and a claim one could assert under a CBA is not necessarily sufficient. Douglas, 877 F.2d at 570. And the gener al rule that a federal defense does not suffice to support federal subject-matter jurisdiction, e.g., Rivet v. Regions Bank of La., 522 U.S. 470, 475, 118 S.Ct. 921, 139 L.Ed.2d 912 (1998), retains its force, even when complete preemption is at issue, Caterpillar, 482 U.S. at 398-99, 107 S.Ct. 2425. As the Court put it in Caterpillar: It is true that when a defense to a state claim is based on the terms of a collective-bargaining agreement, the state court will have to interpret that agreement to decide whether the state claim survives. But the presence of a federal question, even a § 301 question, in a defensive argument does not overcome the paramount policies embodied in the well-pleaded complaint rule—that the plaintiff is the master of the complaint, that a federal question must appear on the face of the complaint, and that the plaintiff may, by eschewing claims based on federal law, choose" }, { "docid": "22276611", "title": "", "text": "us through the analytical thicket. If the plaintiffs claim cannot be resolved without interpreting the applicable CBA— as, for example, in Allis-Chalmers, where the suit involved an employer’s alleged failure to comport with its contractually established duties — it is preempted. See also Hechler, 481 U.S. at 861-62, 107 S.Ct. 2161. Alternatively, if the claim may be litigated without reference to the rights and duties established in a CBA — as, for example, in Lingle, where the plaintiff was able to litigate her retaliation suit under state law without reference to the CBA — it is not preempted. See also Livadas, 512 U.S. at 124-25, 114 S.Ct. 2068. The plaintiffs claim is the touchstone for this analysis; the need to interpret the CBA must inhere in the nature of the plaintiffs claim. If the claim is plainly based on state law, § 301 preemption is not mandated simply because the defendant refers to the CBA in mounting a defense. See Caterpillar, 482 U.S. at 398-99,107 S.Ct. 2425. Moreover, alleging a hypothetical connection between the claim and the terms of the CBA is not enough to preempt the claim: adjudication of the claim must re quire interpretation of a provision of the CBA. A creative linkage between the subject matter of the claim and the wording of a CBA provision is insufficient; rather, the proffered interpretation argument must reach a reasonable level of credibility. Cf. Livadas, 512 U.S. at 124-25, 114 S.Ct. 2068. The argument does not become credible simply because the court may have to consult the CBA to evaluate it; “looking] to” the CBA merely to discern that none of its terms is reasonably in dispute does not require preemption. Id. at 125,114 S.Ct. 2068. Where a party defends a state cause of action on the ground that the plaintiffs union has bargained away the state law right at issue, the CBA must include “clear and unmistakable” language waiving the covered employees’ state right “for a court even to consider whether it could be given effect.” Livadas, 512 U.S. at 125, 114 S.Ct. 2068 (citing Lingle, 486 U.S. at" }, { "docid": "6659139", "title": "", "text": "Supreme Court to have “complete preemption” effect. As discussed earlier, § 301 of the LMRA was the first statute to have been so analyzed by the Court. See Avco, 390 U.S. at 561, 88 S.Ct. 1235; Taylor, 481 U.S. at 63-64, 107 S.Ct. 1542. Section 301 of the LMRA “governs claims founded directly on rights created by collective-bargaining agreements [CBAs], and also claims substantially dependent on analysis of a collective-bargaining agreement,” see Caterpillar, 482 U.S. at 394, 107 S.Ct. 2425 (quotations omitted), although it does not contain an explicit preemption provision. See Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 208, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985). We have explained that § 301 “preempts questions relating to what the parties to a labor agreement agreed, and what legal consequences were intended to flow from breaches of that agreement, ... whether such questions arise in the context of a suit for breach of contract or in a suit alleging liability in tort.” Cisneros v. ABC Rail Corp., 217 F.3d 1299, 1302 (10th Cir.2000) (alteration in original; quotations omitted). The Supreme Court found no complete preemption under § 301 where the plaintiffs complaint was “not substantially dependent upon interpretation of the [CBA].... [and did] not rely upon the [CBA] indirectly.” Caterpillar, 482 U.S. at 395, 107 S.Ct. 2425; see also Allis-Chalmers, 471 U.S. at 213, 105 S.Ct. 1904 (stating that § 301 preemption analysis turns on whether the tort action confers rights on employers or employees “independent of any right established by contract, or, instead, whether evaluation of the tort claim is inextricably intertwined with consideration of the terms of the labor contract”). The Supreme Court has outlined a key distinction between a claim that involves interpretation of CBA terms and one that involves mere reference to those terms, with only the former requiring complete preemption under § 301 of the LMRA. When the parties do not dispute the meaning of the contract terms, “the bare fact that a[CBA] will be consulted in the course of state-law litigation plainly does not require the claim to be extinguished.” Livadas v. Bradshaw, 512 U.S." }, { "docid": "2810975", "title": "", "text": "486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988). There, the Court held unanimously that § 301 did not preempt a plaintiffs state-law claim that her employer improperly discharged her in retaliation for filing a worker’s compensation claim. It stated that the retaliatory-discharge claim turned on “purely factual questions pertaining] to the conduct of the employee and the conduct and motivation of the employer. Neither of the elements require[d] a court to interpret any term of a collective bargaining agreement.” Id. at 407, 108 S.Ct. 1877. Because the claim could be resolved without “construing the collective bargaining agreement,” it was independent of the CBA and was not preempted by § 301. Ibid. The same is true here. Defendants argue, however, that Count IV is still completely preempted because it implicates the separate “plant closing agreement” between the plaintiffs and Environ. While the amended complaint nowhere discusses the content of the plant closing agreement, defendants assert that this agreement contains provisions authorizing the alleged failure to rehire or recommend the plaintiffs. We conclude that even if this is so, it does not establish complete pre-emption. In effect, the defendants contend that § 301 should preempt Count IV because the defendants are certain to raise a defense that requires interpretation of a collective bargaining agreement. The Supreme Court has rejected this view. It is true that the doctrine of complete preemption goes beyond the usual contours of the well-pleaded complaint rule, in that it requires courts to attend to the underlying substance of a plaintiffs cause of action, and not merely whether it is denominated as arising from state or federal law. But, as the Supreme Court has instructed us, the complete preemption doctrine does not abrogate the federal courts’ traditional focus on the complaint, in deciding questions of removal jurisdiction. The Caterpillar Court explained: It is true that when a defense to a state claim is based on the terms of a collective-bargaining agreement, the state court will have to interpret that agreement to decide whether the state claim survives. But the presence of a federal question, even a §" }, { "docid": "4193597", "title": "", "text": "and a claim one could assert under a CBA is not necessarily sufficient. Douglas, 877 F.2d at 570. And the gener al rule that a federal defense does not suffice to support federal subject-matter jurisdiction, e.g., Rivet v. Regions Bank of La., 522 U.S. 470, 475, 118 S.Ct. 921, 139 L.Ed.2d 912 (1998), retains its force, even when complete preemption is at issue, Caterpillar, 482 U.S. at 398-99, 107 S.Ct. 2425. As the Court put it in Caterpillar: It is true that when a defense to a state claim is based on the terms of a collective-bargaining agreement, the state court will have to interpret that agreement to decide whether the state claim survives. But the presence of a federal question, even a § 301 question, in a defensive argument does not overcome the paramount policies embodied in the well-pleaded complaint rule—that the plaintiff is the master of the complaint, that a federal question must appear on the face of the complaint, and that the plaintiff may, by eschewing claims based on federal law, choose to have the cause heard in state court. When a plaintiff invokes a right created by a collective-bargaining agreement, the plaintiff has chosen to plead what we have held must be regarded as a federal claim, and removal is at the defendant’s option. But a defendant cannot, merely by injecting a federal question into an action that asserts what is plainly a state-law claim, transform the action into one arising under federal law, thereby selecting the forum in which the claim shall be litigated. Id. (emphasis in original). B The state-law claim at issue in this case is for retaliatory discharge in violation of the Illinois Workers’ Compensation Act. 820 ILCS § 305. Although the Act itself does not recognize a cause of action for employees who are fired in retaliation for exercising their rights under the statute, Illinois courts have recognized an implied private action, to “ensure that the sound public policy underlying the [Act] c[an] not be frustrated by the actions of an employer.” Hinthorn v. Roland’s of Bloomington, Inc., 119 Ill.2d 526," }, { "docid": "3409511", "title": "", "text": "state cause of action ‘for violation of contracts between an employer and a labor organization.’ ” Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 23, 103 S.Ct. 2841, 2853, 77 L.Ed.2d 420 (1983). “State law is thus ‘pre-empted’ by § 301 in that only the federal law fashioned by the courts under § 301 governs the interpretation and application of collective-bargaining agreements.” United Steelworkers of America v. Rawson, — U.S. -, 110 S.Ct. 1904, 1909, 109 L.Ed.2d 362 (1990). The preemptive reach of section 301, however, is by no means boundless. Section 301 preempts only state law claims that are “substantially dependent on analysis of a collective-bargaining agreement,” see, e.g., International Bhd. of Elec. Workers v. Hechler, 481 U.S. 851, 859 n. 3, 107 S.Ct. 2161, 2166-67 n. 3, 95 L.Ed.2d 791 (1987), not claims that only “tangentially” involve CBA provisions. See, e.g., Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 211, 105 S.Ct. 1904, 1911, 85 L.Ed.2d 206 (1985). Furthermore, a defendant’s reliance on a CBA term purely as a defense to a state law claim does not result in section 301 preemption. See Caterpillar, 482 U.S. at 399, 107 S.Ct. at 2433; accord Smolarek v. Chrysler Corp., 879 F.2d 1326, 1334 (6th Cir.) (en banc), cert. denied, — U.S. -, 110 S.Ct. 539, 107 L.Ed.2d 537 (1989). Underlying these basic rules is the fundamental precept that “§ 301 preemption merely ensures that federal law will be the basis of interpreting collective-bargaining agreements, and says nothing about the substantive rights a State may provide to workers when adjudication of those rights does not depend upon interpretation of such agreements.” Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 409, 108 S.Ct. 1877, 1878, 100 L.Ed.2d 410 (1988) (footnote omitted). Accordingly, whenever a plaintiffs state law claim “can be resolved without interpreting the [CBA] itself, the claim is 'independent’ of the [CBA] for § 301 preemption purposes.” Id. at 410, 108 S.Ct. at 1878 (footnote omitted). Applying these principles, we must analyze six of the plaintiffs’ state law claims to determine which, if any, are preempted" }, { "docid": "15437040", "title": "", "text": "and therefore arises under federal law.” Balcorta v. Twentieth Century-Fox Film Corp., 208 F.3d 1102, 1107 (9th Cir.2000). The complete preemption exception is applied primarily under § 301 of the LMRA. Id. That Section vests jurisdiction in federal courts over “[s]uits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce.” 29 U.S.C. § 185(a). The Supreme Court has expanded § 301 preemption to cases whose resolution “is substantially dependent upon analysis of the terms of [a collective bargaining agreement].” Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985). However, § 301 does not preempt a claim alleging state law substantive rights that apply without regard to a CBA and can be resolved without interpreting a CBA. Lingle v. Norge Div. of Magic Chef, Inc. 486 U.S. 399, 413, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988). In Livadas v. Bradshaw, 512 U.S. 107, 114 S.Ct. 2068, 129 L.Ed.2d 93 (1994), the Court provided further clarification, stating that “ § 301 cannot be read broadly to preempt non-negotiable rights conferred on individual employees as a matter of state law.... [W]hen the meaning of contract terms is not the subject of a dispute, the bare fact that a collective-bargaining agreement will be consulted in the course of state-law litigation plainly does not require the claim to be extinguished.” Id. at 122-24, 114 S.Ct. 2068 (internal citations and footnotes omitted). Finally, in Cramer v. Consolidated Freightways, Inc., 255 F.3d 683 (9th Cir.2001) (en banc), we summarized the preemption analysis: The plaintiffs claim is the touchstone of [the preemption] analysis; the need to interpret the CBA must inhere in the nature of the plaintiffs claim. If the claim is plainly based on state law, § 301 preemption is not mandated simply because the defendant refers to the CBA in mounting a defense. Id. at 691. Here, Gregory’s claim is based entirely on state law. There is no dispute over the terms of the CBA or its interpretation. While overtime is calculated in accordance with the terms of the CBA, this" }, { "docid": "11541780", "title": "", "text": "at 395, 107 S.Ct. 2425. However, “if the resolution of a state-law claim depends upon the meaning of a collective-bargaining agreement, the application of state law ... is pre-empted” Lingle v. Norge Div. of Magic Chef, 486 U.S. 399, 405-406, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988). The “bare fact that a collective-bargaining agreement will be consulted in the course of state-law litigation plainly does not require the claim to be extinguished.” Invadas v. Bradshaw, 512 U.S. 107, 124, 114 S.Ct. 2068, 129 L.Ed.2d 93 (1994) (citing Lingle, 486 U.S. at 413 n. 12, 108 S.Ct. 1877). A court may also look to the CBA to determine whether it contains a clear and unmistakable waiver of state law rights without triggering § 301 preemption. Cramer v. Consol. Freightways, Inc., 255 F.3d 683, 692 (9th Cir.2001)(cre banc). The complete preemption doctrine does not abrogate the general rule that a defense of preemption does not create federal question jurisdiction. Caterpillar, Inc., 482 U.S. at 398-99, 107 S.Ct. 2425; see also Ben. Natl Bank v. Anderson, 539 U.S. 1, 9, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003) (federal defense raised by defendant in preemption case does not justify removal). The Ninth Circuit in a recent en banc decision affirmed this principle of Caterpillar stating that: “[t]he plaintiffs claim is the touchstone for this analysis; the need to interpret the CBA must inhere in the nature of the plaintiffs claim. If the claim is plainly based on state law, § 301 pre-emption is not mandated simply because the defendant refers to the CBA in mounting a defense.” See Cramer, 255 F.3d at 691 (citing Caterpillar, Inc., 482 U.S. at 398-99, 107 S.Ct. 2425). Defendant here alleges two independent grounds for preemption. 1. Whether Plaintiffs’ Meal Break Claims are Preempted In their complaint, Plaintiffs allege that they were not given a proper 30 minute meal period for work days that exceeded five hours, as required by the IWC Wage Order No. 5-2001, § 11(A) (“No employer shall employ any person for a work period of more than five (5) hours without a meal period of" }, { "docid": "2810977", "title": "", "text": "301 question, in a defensive argument does not overcome the paramount policies embodied in the well-pleaded complaint rule — that the plaintiff is the master of the complaint, that a federal question must appear on the face of the complaint, and that the plaintiff may, by eschewing claims based on federal law, choose to have the cause heard in state court. When a plaintiff invokes a right created by a collective-bargaining agreement, the plaintiff has chosen to plead what we have held must be regarded as a federal claim, and removal is at the defendant’s.option. But a defendant cannot, merely by injecting a federal question into an action that asserts what is plainly a state-law claim, transform the action into one arising under federal law, thereby selecting the forum in which the claim shall be litigated. 482 U.S. at 398-99, 107 S.Ct. 2425; see also Livadas, 512 U.S. at 124, 114 S.Ct. 2068 (noting that “the bare fact that a collective bargaining agreement will be consulted in the course of state-law litigation ... does not require the claim to be extinguished”; offering as an example of mere “consultation” a case in which a CBA sets the wage rates that must be consulted in order to compute a plaintiffs damages for loss of employment) (citation omitted). The distinction drawn by the Court in Caterpillar applies precisely to the defendants’ argument here. We therefore hold that Count IV is not completely pre-empt-ed. Because there is no complete preemption, under § 301 of the LMRA, of any of the counts in the amended complaint, we affirm the district court’s holding that removal to federal court was improper. As a consequence of that holding, we have no jurisdiction to consider whether any of those claims may be preempted by § 7 and § 8 of the National Labor Relations Act; the matter is for the state courts to consider. See Lattin v. Kurdziel, 149 F.3d 1183, 1998 WL 344070 (6th Cir. May 26, 1998) (per curiam). To the extent that the district court decided the question of NLRA preemption, this was error. C We" }, { "docid": "3287154", "title": "", "text": "either that his reassignment violated the terms of the CBA which governed matters of his employment at Farmers or that the CBA was invalid. The court concluded that the NLRA and the LMRA preempted Baker’s state tort claim and denied his motion to remand. Upon finding that Baker had failed to exhaust the remedies set forth in Article 29 of the CBA which required resolution of disputes arising from the CBA through grievance or arbitration proceedings, the district court dismissed the action without prejudice to allow Baker to comply with this requirement. Discussion I. Denial of Motion to Remand A Claims against Farmers Preemption is a question of law reviewed de novo. Galvez v. Kuhn, 933 F.2d 773, 776 (9th Cir.1991). Where removal jurisdiction is predicated on the existence of a federal question, the federal question generally must appear on the face of the plaintiffs complaint. Caterpillar, Inc. v. Williams, 482 U.S. 386, 391, 107 S.Ct. 2425, 2429, 96 L.Ed.2d 318 (1987). The removing defendant’s interjection of a federal defense is normally insufficient to remove the case. Id. at 393, 107 S.Ct. at 2430. One exception to this rule, however, occurs where an area of state law has been completely preempted by federal law. Id. Controversies involving collective bargaining agreements, where section 301 of the LMRA, 29 U.S.C. § 185(a), provides the grounds for preemption, constitute such an area of preemption. Id. at 394, 107 S.Ct. at 2430-31; Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988). Defendants removed this action to federal court on the grounds that resolution of Baker’s intentional infliction of emotional distress claim required interpretation of the CBA. This claim implicates preemption under section 301 of the LMRA, which vests jurisdiction in the federal courts to hear claims for violation of labor contracts. “Section 301 not only gives federal courts jurisdiction to hear employment cases covered by collective bargaining agreements, but also directs them to fashion a body of federal common law to resolve such disputes, and preempts any state law claims which require the interpretation of" }, { "docid": "3140043", "title": "", "text": "requirements of the ESTL. But the Court has made clear that a defense based on preemption under Section 301 may not be used to bring the underlying state-law claim into federal court. See Caterpillar Inc. v. Williams, 482 U.S. 386, 398, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). For that reason, we question whether a federal court would even have jurisdiction to decide a case arising in this speculative posture. . Of course, the employers do also seek, in substantial part, advance relief from actions that would be brought by the Attorney General rather than by an aggrieved employee. But the Attorney General is not alleged in the employers’ complaint to be a party to any CBA and thus would not appear herself to be bound by any CBA terms, including those mandating arbitration of disputes over its meaning. Cf. Waffle House v. EEOC, 534 U.S. 279, 293, 122 S.Ct. 754, 151 L.Ed.2d 755 (2002) (holding that a private arbitration agreement between an employee and an employer-could not bind a nonparty governmental agency, the EEOC, and thus that the agreement—which was enforceable against the employee under the Federal Arbitration Act-—did not limit the types of remedies the agency could seek in an enforcement action it initiated under Title VII); see also Pruell, 645 F.3d at 83 (\"[R]emoval and dismissal based on complete preemption under [Section 301] must start with a plaintiff covered by a CBA-” (emphases in original)). And the employers provide us with no insight into how Section 301 preemption would apply when a state-law claim arguably dependent on CBA interpretation is brought by a CBA nonparty to enforce rights of CBA parties. But, given the other problems that we have identified with finding this case to be fit for resolution at this time and that are present no matter which party brings an ESTL action, we need not decide how or whether Section 301 preemption might apply to an ESTL action brought by the Attorney General herself. We do note, though, that it would surely be better to make any such decision in the context of a real" }, { "docid": "8501750", "title": "", "text": "that contract is a different question; one that the federal courts cannot now decide. We recognize that the “complete preemption doctrine ... provides an exception to the well-pleaded complaint rule.” Stikes v. Chevron USA Inc., 914 F.2d 1265, 1267 (9th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 2015, 114 L.Ed.2d 101 (1991). For example, in the context of suits by employees against their employers, section 301 of the Labor Management Relations Act' (LMRA) completely preempts state law claims either when those claims are “ ‘founded directly on rights created by collective-bargaining agreements,’” or when a claim based on a state law right “ ‘requires the interpretation of a collective-bargaining agreement.’” Hayden v. Reickerd, 957 F.2d 1506, 1509 (9th Cir. 1992) (citations omitted); see also Stikes, 914 F.2d at 1268. However, as the Supreme Court has explained, this corollary has been applied primarily to preemption by section 301 of the LMRA, but has also been applied to ERISA claims, as well as actions for possession of Indian tribal lands. Caterpillar, 482 U.S. at 393 n. 8, 107 S.Ct. at 2430 n. 8. The law firms insist that we must apply this doctrine to Westinghouse’s complaint. We do not agree. We find no direct authority for the proposition that it applies to Federal Rules of Civil Procedure claims, and we need not now determine whether it does. Even in an area where the need for preemption is as powerful as it is in labor relations, the doctrine might not justify removal. Thus, in Caterpillar, the plaintiff employees were originally covered by a collective bargaining agreement (CBA), but later assumed positions outside the bargaining unit, and finally were returned to unionized positions and laid off. Id. at 388-89, 107 S.Ct. at 2427-28. The employees sued Caterpillar in state court and asserted only state claims. They alleged that during the time they had held non-union positions, they entered into individual employment contracts with Caterpillar and that it was those individual agreements that Caterpillar breached when it ter- initiated them. Id. at 389-90, 107 S.Ct.. at 2427-28. Caterpillar removed the action on the ground" }, { "docid": "11007270", "title": "", "text": "circumvent the grievance procedures under the CBA. Defendant also argues that, by seeking injunctive relief, plaintiff has necessarily invoked the CBA. Defendant notes that Mo.Rev.Stat. § 287.780 does not expressly provide for injunctive relief; it provides only for damages. Defendant suggests that plaintiffs claim for injunctive relief pursuant to § 287.780 is thus merely a pretext for trying to undo what was done pursuant to the CBA. Therefore, defendant argues, the claim can only be characterized as “inextricably intertwined” with the CBA. Guided by the Supreme Court’s analysis in Lingle, we hold that plaintiffs action is not completely preempted by the LMRA and therefore the district court did not have removal jurisdiction. In. response to defendant’s argument that the true controversy in the present case concerns the discipline plaintiff received, we note that plaintiff has consistently denied making the alleged racial remark. Plaintiff maintains that the incident was fabricated as a pretext for retaliating against him because he had exercised his rights under the workers’ compensation laws, and would likely continue to do so. Thus, the controversy in the present ease primarily concerns the conduct of the parties and their motivation. “ ‘[P]urely factual questions’ about an employee’s conduct or an employer’s conduct and motives do not ‘requir[e] a court to interpret any term of a collective bargaining agreement.’” Hawaiian Airlines, Inc. v. Norris, — U.S.-, -, 114 S.Ct. 2239, 2248, 129 L.Ed.2d 203 (1994) (citing Lingle, 486 U.S. at 407, 108 S.Ct. at 1882). The fact that defendant argues that the incident did, in fact, occur, and that there was “just cause” under the terms of the CBA for the discipline plaintiff received, does not create a basis for § 301 preemption, Lingle, 486 U.S. at 408-10, 108 S.Ct. at 1882-84, and therefore certainly does not provide a basis for removal to federal court under the complete preemption doctrine. Caterpillar, 482 U.S. at 399, 107 S.Ct. at 2433 (federal defenses do not provide a basis for removal). “[A] defendant cannot, merely by injecting a federal question into an action that asserts what is plainly a state-law claim, transform the" }, { "docid": "257005", "title": "", "text": "precedent is conflicted. See Bogan, 500 F.3d at 833. For example, in Johnson v. Anheuser Busch, Inc., 876 F.2d 620 (8th Cir.1989), this court stated that an employer's “defenses, as well as [the employee's] claims, must be considered in determining whether resolution of the state law claim requires construing the [CBA].” Id. at 623 (quotation omitted). However, the Bogan Court noted, \"[W]e have on other occasions rejected this broader approach to LMRA preemption, that is, an approach where the employer's defenses are relevant.” 500 F.3d at 833. The Bogan Court applied the narrower approach in which an employer’s defenses to liability are irrelevant to the question of section 301 preemption as \"more faithful to [Supreme Court precedent]” and reversed the district court’s determination that the plaintiff's \"intentional infliction of emotional distress claim was preempted.” Id. (quotation omitted); see Dunn v. Astaris, LLC, 292 Fed.Appx. 525, 527 (unpublished per curiam) (8th Cir.2007). Dunn explained, Some of our cases have applied [Supreme Court precedent with regard to section 301 preemption] in a rather broad way. Nevertheless, we find the line of cases that has taken a narrower approach to LMRA preemption — asking only whether the claim itself, regardless of probable defenses, is necessarily grounded in rights established by the CBA — is the better approach. Id. (citation omitted) (emphasis added). We agree with Bogan and Meyer that the narrower approach to section 301 is more faithful to Supreme Court precedent and consider only the Players' CPA claim itself, and not the NFL’s defenses to liability, in determining whether the claim is preempted. See Bogan, 500 F.3d at 833; Meyer, 163 F.3d at 1051; see also Caterpillar Inc. v. Williams, 482 U.S. 386, 398-99, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987) (holding that a defendant cannot subject a state law claim to federal preemption by raising a defense that requires analysis of a CBA); Cramer, 255 F.3d at 691 (holding that “[i]f the claim is plainly based on state law, § 301 preemption is not mandated simply because the defendant refers to the CBA in mounting a defense”) (citing Caterpillar, 482 U.S." }, { "docid": "11541791", "title": "", "text": "ll’s and three other CBAs referenced in the complaint. . Defendant does not assert that this third claim is preempted by federal labor law. . Defendant argues that the well-pleaded complaint rule does not apply where the defense is based on complete preemption under Section 301. Def.’s Opp'n at 8. However, this is contrary to the very case law cited by Defendant. Caterpillar, Inc., 482 U.S. at 398, 107 S.Ct. 2425 (\"the presence of a federal question, even a § 301 question, in a defensive argument does not overcome the paramount policies embodied in the well-pleaded complaint rule”); Balcorta, 208 F.3d at 1107 n. 7 (\"the 'complete preemption' doctrine does not abrogate the standard rule that a defense of preemption does not create federal question jurisdiction”). In addition, the doctrine of complete preemption is not so overwhelming that a plaintiff can never have an independent state law claim. Caterpillar, Inc., 482 U.S. at 395, 107 S.Ct. 2425 (citing Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 212, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985)) (\"it would be inconsistent with congressional intent under [§ 301] to pre-empt state rules that proscribe conduct, or establish rights and obligations, independent of a labor contract”). . The parties have filed several supplementary briefs regarding an emergency regulation issued by the California Department of Labor Standards Enforcement (\"Section 13700\"). The regulation describes the elements required for an employer to \"be deemed to have provided a meal period to an employee in accordance with Labor Code Section 512.” Section 13700(b). Defendant argues that the regulation supports its argument that \"a dispute exists under the CBA as to whether Defendant has provided Plaintiffs with meal periods within the meaning of Cal. Labor Code § 512 by informing Plaintiffs of their rights.” Def.'s Further Supplemental Reply at 5. Defendant does not cite any specific provision of the CBA that must be interpreted to determine compliance with this regulation. . Because Plaintiffs’ complaint encompasses four different CBAs, one of which appears not to require meal breaks to be paid, (see Local 1877 CBA attached as Ex. C to Declaration of" }, { "docid": "23618068", "title": "", "text": "“Independent State-Law Rights” The Supreme Court’s definition of “independent rights” makes clear that we cannot accept defendants’ claim that parallel protection in collective bargaining agreements mandates preemption. Independent rights are those state-law rights that can be enforced without any need to rely on the particular terms, explicit or implied, contained in the labor agreement. In Caterpillar, Inc. v. Williams, — U.S. -, 107 S.Ct. 2425, 2431, 96 L.Ed.2d 318 (1987), the Supreme Court found not preempted a suit for breach of an individual employment contract established independently of plaintiffs’ collective bargaining agreement. The Court found the state-law contract rights independent even though the collective bargaining agreement provided similar substantial rights on the basis of which plaintiffs might have sued. Mere similarity between state-law protections and contractual provisions did not require preemption. See also Paige, 826 F.2d at 863 (stating that mere incorporation of state-law torts into a collective bargaining agreement does not preempt the state-law tort under section 301). Rather, preemption in the Supreme Court requires that the dispute could be resolved under the CBA, and that the state law did not establish a criterion for deciding the case that permits application of state law without reference to the terms of the CBA. In Allis-Chalmers, the Court noted that Wisconsin’s tort of bad-faith dealing on disability claims overlapped with an implied duty of good-faith in the collective bargaining agreement. 471 U.S. at 216, 105 S.Ct. at 1913. However, the Court did not find the tort preempted based on this overlap. Rather, the Court explained that Wisconsin law did not articulate a mandatory, independent standard of bad faith. Because Wisconsin did not intend to prevent private parties from establishing contractual definitions for reasonable performance of this duty, it permitted contractual modification of the state-tort standard. Therefore, a court could not grant plaintiff relief unless the defendant’s behavior fell below both the state standard and any contractual modification to that standard set out in the CBA. Such a finding, of course, would require interpretation of the terms of the CBA. This analysis provides a clear indication that mere similarity between a state" }, { "docid": "6659140", "title": "", "text": "quotations omitted). The Supreme Court found no complete preemption under § 301 where the plaintiffs complaint was “not substantially dependent upon interpretation of the [CBA].... [and did] not rely upon the [CBA] indirectly.” Caterpillar, 482 U.S. at 395, 107 S.Ct. 2425; see also Allis-Chalmers, 471 U.S. at 213, 105 S.Ct. 1904 (stating that § 301 preemption analysis turns on whether the tort action confers rights on employers or employees “independent of any right established by contract, or, instead, whether evaluation of the tort claim is inextricably intertwined with consideration of the terms of the labor contract”). The Supreme Court has outlined a key distinction between a claim that involves interpretation of CBA terms and one that involves mere reference to those terms, with only the former requiring complete preemption under § 301 of the LMRA. When the parties do not dispute the meaning of the contract terms, “the bare fact that a[CBA] will be consulted in the course of state-law litigation plainly does not require the claim to be extinguished.” Livadas v. Bradshaw, 512 U.S. 107, 124, 114 S.Ct. 2068, 129 L.Ed.2d 93 (1994). “[T]he mere need to ‘look to’ the [CBA] for damages computation is no reason to hold the state-law claim defeated by § 301.” Id. at 125, 114 S.Ct. 2068; see also Foy v. Pratt & Whitney Group, 127 F.3d 229, 233 (2d Cir.1997) (emphasizing difference between interpretation of CBA and mere consultation of CBA). Defendant in the instant case argues that Plaintiffs’ fraud claims are simply an attempt to vindicate their rights under the February 19 Memorandum of Agreement (“MOA”) (modifying existing CBA), which set forth their early retirement benefits package. However, Plaintiffs do not assert any violation of contractual rights under any labor agreement, but rather sue to vindicate their right not to be defrauded,. They are thus asserting rights independent of the contract and are not preempted by § 301. Plaintiffs’ claims are very similar to those asserted by the plaintiff in Wynn v. AC Rochester, 273 F.3d 153 (2d Cir.2001) (per curiam)-. In Wynn, the plaintiff was not completely preempted by § 301" }, { "docid": "21238008", "title": "", "text": "interpretation of some specific provision of a CBA; it is not enough that the events in question took place in the workplace or that a CBA creates rights and duties similar or identical to those on which the state-law claim is based.”); see also Luecke v. Schnucks Mkts., Inc., 85 F.3d 356, 359 (8th Cir.1996) (finding no preemption where “the pertinent factual inquiry in the state [claim] did not turn on any term' of the [collective bargaining] agreement, but rather on the employee’s conduct and the employer’s conduct and motivation”). Relying upon Johnson v. Anheuser Busch, Inc., 876 F.2d 620 (8th Cir.1989), GM nevertheless urges us to affirm the district court, arguing preemption was found in Johnson based on the same type of “management rights” clause involved in this case. We decline GM’s invitation. First, Johnson did not turn upon the same type of “management rights” clause involved in this case. The Johnson court determined the evaluation of the state-law claims required interpretation of a CBA’s grievance procedure, not a management rights clause. See Johnson, 876 F.2d at 622 n. 1. In addition, the claims involved in Johnson related to the plaintiffs alleged violation of specific plant rules governed by the CBA’s grievance procedure. See id. at 622. Most importantly, the Johnson court reasoned the plaintiffs alleged plant rule violations and the CBA’s grievance procedure were relevant because the employer’s “defenses, as well as [the employee’s] claims, must be considered in determining whether resolution of the state-law claim requires construing the collective bargaining agreement.” Id. at 623 (quoting Hanks v. Gen. Motors Corp., 859 F.2d 67, 70 (8th Cir.1988)). As we noted in Meyer, however, we have on other occasions rejected this broader approach to LMRA preemption, that is, an approach where the employer’s defenses are relevant. See Meyer, 163 F.3d at 1051 (citing Humphrey v. Sequentia, Inc., 58 F.3d 1238, 1244 (8th Cir.1995) (holding a discharge-for-just-cause defense did not create a basis for LMRA preemption)). As we further noted in Meyer, “[w]hen faced with conflicting precedents óf this kind, we are free to choose which line of cases to" }, { "docid": "7294915", "title": "", "text": "related to events at the workplace and could have been taken through the grievance process are not preempted as long as they involve purely factual questions and are not based on provisions of the CBA. Luecke, 85 F.3d at 359, holding that a state defamation action was not preempted, is such a case. “[N]o express or implied ... provision” of the CBA, we said, “guides the factual inquiry into whether the speakers actually said [that] Luecke re fused to take the [drug] test, whether their statements were false, whether malice attached, and whether damages resulted.” Id. at 360. A number of our cases have also held that state-law retaliatory discharge claims are not preempted by the LMRA, because they turn on purely factual questions about the employer’s conduct and motives rather than on the scope of the employer’s contractual authority to discharge employees. See, e.g., Humphrey v. Sequentia, Inc., 58 F.3d 1238, 1244 (8th Cir.1995). The fact that the defense to the claim relied upon the CBA, the employer asserting that there was “just cause” for the discharge under the CBA’s terms, was held not to create a basis for LMRA preemption. Id. When faced with conflicting precedents of this kind, we are free to choose which line of eases to follow. Kostelec v. State Farm Fire and Cas. Co., 64 F.3d 1220, 1228 n. 8 (8th Cir.1995). We think that the narrower approach to LMRA preemption, which asks only whether the claim itself is necessarily grounded in rights established by a CBA, is more faithful to the Supreme Court’s holding in Caterpillar, Inc. v. Williams, 482 U.S. 386, 399, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987), the basis for our holding in Humphrey, 58 F.3d at 1244. For there to be complete preemption, we believe that the claim must require the interpretation of some specific provision of a CBA; it is not enough that the events in question took place in the workplace or that a CBA creates rights and duties similar or identical to those on which the state-law claim is based. II. Although the events underlying Mr." }, { "docid": "5061711", "title": "", "text": "“The rule makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law,” id., and existence of federal jurisdiction is determined by the complaint at the time of removal. Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1065 (9th Cir.1979). Foster Farms argued that Section 301 of the LMRA provides a “complete preemption” of Ms. Avalos’ state law claims to establish federal jurisdiction over this action. Section 301 of the LMRA confers original jurisdiction in federal district courts. 29 U.S.C. § 185(a); Livadas v. Bradshaw, 512 U.S. 107, 121-24, 114 S.Ct. 2068, 129 L.Ed.2d 93 (1994). Section 301’s “complete preemption” covers “most state-law actions that require interpretation of labor agreements.” Balcorta v. Twentieth Century-Fox Film Corp., 208 F.3d 1102 (9th Cir.2000). The “preemptive force of section 301 is so powerful as to displace entirely any state cause of action for violation of contracts between an employer and an labor organization.” Franchise Tax Bd., 463 U.S. at 23, 103 S.Ct. 2841 (1993) (internal quotations omitted). Section 301 governs not only claims founded directly on the rights created by the CBA, but also on those claims that are “substantially dependent” on the analysis of the CBA. Caterpillar, 482 U.S. at 394, 107 S.Ct. 2425. Once preempted, “any claim purportedly based on [a] ... state law is considered, from its inception, a federal claim, and therefore arises under federal law.” Id. at 393, 107 S.Ct. 2425. On the other hand, mere consultation with the CBA during the course of litigation does not justify preemption. Cramer v. Consol. Freightways, Inc., 255 F.3d 683, 690-91 (9th Cir.2001). Thus, Section 301 does not preempt state law claims that can be resolved without interpreting a CBA. Id. at 690. “[I]t is the legal character of a claim as independent of rights under the” CBA “that decides whether a state cause of action may go forward.” Id. The Court employs a two-step inquiry to determine whether Section 301 preempts a state law claim. First, the Court considers “whether the asserted cause of action involves a right conferred" } ]

[ { "docid": "23183281", "title": "", "text": "be construed in only two ways: as an appeal from an administrative determination or as an appellate action “in the nature of a de novo proceeding.” In either case, the school authorities maintain, the relevant state limitations period, which should likewise apply in federal court, is 30 days. See 42 Pa.Cons.Stat.Ann., § 5571(b) (Purdon Supp.1981); cf. 47 Pa.Stat.Ann., § 4-464 (Purdon Supp.1980-81); 75 Pa.Stat. Ann., § 1550(a) (Purdon Supp.1980-81); 42 Pa.Cons.Stat.Ann., § 5105 (Purdon Supp. 1981). Because plaintiffs initiated suit in the district court on March 14, 1979, nearly 90 days after Secretary Kline issued the order that they challenge, the appellants claim that the action is barred as untimely filed. No general statute of limitations governs litigation in federal courts. Moreover, Congress, in creating a federal right, often does not provide a time limit for enforcement of that right. The limitations period for commencing actions under federal legislation has consequently been left largely to judicial implication. From early on it was assumed that in the absence of an explicit congressional declaration, the Rules of Decision Act mandated the application of the statute of limitations of the forum state. See McCluny v. Silliman, 28 U.S. (3 Pet.) 270, 7 L.Ed. 676 (1830); Campbell v. Haverhill, 155 U.S. 610, 15 S.Ct. 217, 39 L.Ed. 280 (1895). To effectuate the presumed congressional intent “that the remedy [for federal rights] should be enforced in the manner common to like actions within the same jurisdiction,” 155 U.S. at 616, 15 S.Ct. at 219, federal courts were required to characterize the essential nature of the federal claim in terms of the format which the various state statutes of limitations establish. See Davis v. United States Steel Supply, Etc., 581 F.2d 335, 337 (3d Cir. 1978); Polite v. Diehl, 507 F.2d 119, 122 (3d Cir. 1974) (en banc). But resort to state statutes was not to be mechanical, in disregard of the impact of local laws on federal objectives. In the words of Justice Frankfurter, “The implied absorption of State statutes of limitation within the interstices of the federal enactments is a phase of fashioning remedial" } ]

[ { "docid": "22950570", "title": "", "text": "1983 cases and chose instead to look to the relief sought and the particular injury alleged. A claim alleging bodily injury was governed by the two year Pennsylvania statute but one which was more akin to a contract action came under the six year limitation. Hence, under Polite v. Diehl differing statutes of limitations would be applied to a variety of claims in one suit. Although the court discussed only the § 1983 claims, it noted that plaintiff did formulate causes of action under § 1981. 507 F.2d at 121, n. 2. In any event, the Polite rationale of looking to the facts in each case and then searching for the most analogous state statute was followed in § 1981 cases, as well as those brought under § 1983. See Davis v. United States Steel, 581 F.2d at 338, 341 n. 8; Meyers v. Pennypack Woods Home Ownership Ass’n., 559 F.2d at 903 n. 27. We later determined that the six year statute of limitations applied in § 1983 claims of (1) sex discrimination in employment, Knoll v. Springfield Township School Dist., 699 F.2d 137 (3d Cir.1983), vacated and remanded, — U.S. —, 105 S.Ct. 2065, 85 L.Ed.2d 275 (1985), on remand 763 F.2d 584 (3d Cir.1985); (2) termination of employment without due process, Perri v. Aytch, 724 F.2d 362 (3d Cir.1983); (3) discharge from employment in violation of the First Amendment, Fitzgerald v. Larson, 741 F.2d 32 (3d Cir.1984); and (4) termination of employment contract for exercise of First Amendment rights, Skehan v. Trustees of Bloomsburg State College, 590 F.2d 470 (3d Cir.1978). Wilson v. Garcia completely undermined the rationale we employed in Polite as we were quick to recognize. Smith v. City of Pittsburgh, 764 F.2d 188 (3d Cir.1985), reviewed our earlier decisions in light of Wilson and applied Pennsylvania’s two year statute of limitations for personal injuries to a § 1983 claim of employment termination without due process. In view of the previous unsettled law in this and other circuits, in Smith we also determined that Wilson v. Garcia should be applied retroactively. Had the case at" }, { "docid": "22950569", "title": "", "text": "in Meyers v. Pennypack Woods Home Ownership Ass’n., 559 F.2d 894 (3d Cir.1977), where we applied the six year general statute of limitations in a housing discrimination case brought under sections 1981 and 1982. See also Davis v. United States Steel Supply, 581 F.2d 335 (3d Cir.1978) (six year statute of limitations applicable to § 1981 employment discrimination claim). Although the district judge was correct in forecasting that we would adopt a six year limitation period in an employment case, his prescience, like ours, was limited. Neither he, nor this court, foresaw the Supreme Court’s ruling that all § 1983 cases should be governed by a uniform statute of limitations — that provided by the states for personal injury. Wilson v. Garcia, — U.S. —, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). That ruling requires us to reexamine our earlier decisions on the appropriate statute of limitations in Civil Rights cases. In Polite v. Diehl, 507 F.2d 119 (3d Cir.1974) (in banc), we discarded the notion of applying a single limitations period to all § 1983 cases and chose instead to look to the relief sought and the particular injury alleged. A claim alleging bodily injury was governed by the two year Pennsylvania statute but one which was more akin to a contract action came under the six year limitation. Hence, under Polite v. Diehl differing statutes of limitations would be applied to a variety of claims in one suit. Although the court discussed only the § 1983 claims, it noted that plaintiff did formulate causes of action under § 1981. 507 F.2d at 121, n. 2. In any event, the Polite rationale of looking to the facts in each case and then searching for the most analogous state statute was followed in § 1981 cases, as well as those brought under § 1983. See Davis v. United States Steel, 581 F.2d at 338, 341 n. 8; Meyers v. Pennypack Woods Home Ownership Ass’n., 559 F.2d at 903 n. 27. We later determined that the six year statute of limitations applied in § 1983 claims of (1) sex discrimination in" }, { "docid": "7130613", "title": "", "text": "concealment on the part of defendants or lack of knowledge on the part of plaintiff. The court decided that the limitations period should not be extended. The court found that the plaintiff’s vigorous pursuit of his rights in state proceedings belied a claim that the defendants’ concealment or the plaintiff’s lack of knowledge caused the delay in bringing the federal claim. That factual finding may be overturned by us only if clearly erroneous. See Swietlowich v. County of Bucks, 610 F.2d 1157 (3d Cir.1979); Goodman v. Mead Johnson & Co., 534 F.2d 566 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977). Plaintiff has not met that burden; indeed, the record is such that it is difficult to imagine how the trial court could have come to any other conclusion. We see no need to pursue that phase of the case any further. Aitchison also argues, however, that the court erred in applying the two-year limitations period of the New Jersey Tort Claims Act. Determining the appropriate limitations period in a civil rights case is not always a simple matter. Congress has not enacted an applicable statute and so we borrow “the state law of limitations governing an analogous cause of action.” Board of Regents of the University of the State of New York v. Tomanio, 446 U.S. 478, 483-84, 100 S.Ct. 1790, 1794-1795, 64 L.Ed.2d 440 (1980). In Polite v. Diehl, 507 F.2d 119, 122 (3d Cir.1974) (en banc), we said, that as a matter of federal law, the appropriate period “to be applied is that which would be applicable in the courts of the state in which the federal court is sitting had an action seeking similar relief been brought under state law.” The essential nature of the federal claim, including the relief sought and the type of injury alleged should be examined “within the scheme created by the various state statutes of limitations.” Davis v. United States Steel Supply, 581 F.2d 335, 337 (3d Cir.1978); see also Meyers v. Pennypack Woods Home Ownership Ass’n, 559 F.2d 894, 900 (3d Cir.1977). In selecting" }, { "docid": "22950619", "title": "", "text": "Pennsylvania by that state’s six-year statute of limitations. See, e.g., Davis v. United States Steel Supply, 581 F.2d 335, 341 (3d Cir.1978), cert. denied, 460 U.S. 1014, 103 S.Ct. 1256, 75 L.Ed.2d 484 (1983); Meyers v. Pennypack Woods Home Ownership Ass’n, 559 F.2d 894, 902-03 (3d Cir.1977). In Davis, we held that a § 1981 claim of racial discrimination in employment, the gravamen of which was interference with economic rights and interests rather than personal injury, should be governed by Pennsylvania’s six-year limitations period. 42 Pa.Cons.Stat.Ann. § 5527 (Purdon 1982). Unless it has been overruled by Wilson, Davis would appear to control the present case, where the gist of the cause of action is economic rather than bodily injury caused by interference with the employment rights of black workers. Wilson holds that “the federal interests in uniformity, certainty, and the minimization of unnecessary litigation” requires that all § 1983 claims be governed by the same statute of limitations in a given state: that state’s personal injury statute. 105 S.Ct. at 1947. Because Wilson looks to § 1988 for its authority to apply state limitations periods in civil rights actions, and § 1988 by its terms covers all of the Reconstruction sections, the majority today concludes that Wilson mandates that all civil rights actions be governed by a state’s personal injury limitation period. This conclusion is at best an arguable extension of Wilson’s analysis; it is by no means the holding of Wilson or an inexorable outgrowth of the case. In the absence of a square holding which overrules Third Circuit precedent, however, we remain bound by Davis to apply the six-year limitation period. It is not enough if Wilson merely undermines or raises questions about our prior analysis. Until the Supreme Court actually decides the limitation period for a § 1981 claim, or unless Wilson would admit of no other reasonable reading, only an in banc decision of this court can overrule Davis. See Third Circuit Internal Operating Procedures VIII C. A close reading of Wilson reveals that the majority’s view is neither an inevitable nor even the most plausible" }, { "docid": "22581773", "title": "", "text": "1631, 71 L.Ed.2d 866 (1982). The court refused to find section 1983 claims analogous to common law torts, stating that “[w]hile some § 1983 claims have counterparts in actions at common law, the constitutional tort remedied by § 1983 is ‘significantly different from’ state torts____” Id. (quoting Monroe v. Pape, 365 U.S. 167, 196, 81 S.Ct. 473, 488, 5 L.Ed.2d 492 (1961) (Harlan, J., concurring)). The court also rejected application of state statutes governing suits to recover for the tortious conduct of public employees, concluding that “[i]t would be anomalous for a federal court to apply a state policy restricting remedies against public officials to a federal statute that is designed to augment remedies against those officials, especially a federal statute that affords remedies for the protection of constitutional rights.” Id. 654 F.2d at 862. The court pointed out that applying statutes governing actions on liability created by statute to all section 1983 claims provides uniformity in approach and is consistent with the broad remedial purposes of the civil rights acts. Id. at 866. C. Third Circuit The Third Circuit applies “the limitation ... which would be applicable in the courts of the state in which the federal court is sitting had an action seeking similar relief been brought under state law.” Polite v. Diehl, 507 F.2d 119, 122 (3d Cir.1974) (en banc) (applying Pennsylvania one-year statute to § 1983 claims analogous to false arrest, and two-year wrongful injury statute to, claims analogous to assault and battery and coercion of guilty plea); see also Meyers v. Pennypack Woods Home Ownership Association, 559 F.2d 894, 900 (3d Cir. 1977). The court examines “[t]he essential nature of the federal claim, including the relief sought and the type of injury alleged ... ‘within the scheme created by the various state statutes of limitations.’ ” Aitchison v. Raffiani, 708 F.2d 96, 101 (3d Cir.1983) (quoting Davis v. United States Steel Supply, 581 F.2d 335, 337 (3d Cir. 1978)) (applying New Jersey Tort Claim Act two-year limitations). Thus the Third Circuit defines the federal cause of action in terms of factually similar state actions as" }, { "docid": "4268814", "title": "", "text": "liabilities for the infringement of constitutional rights, and thus applied the appropriate state limitations applicable to actions based upon liabilities created by statute. E. g., Ney v. California, supra; Donovan v. Reinbold, supra. Therefore, this court will apply the express limitation found in N.J.S.A. 59:8-8 to the action against the defendant Township of Bass River. In deciding that N.J.S.A. 59:8-8 is the most “appropriate” statute of limitations to apply in this situation, the court realizes that defendants may receive differing treatment even though they may have acted jointly to injure the plaintiff. For example, it is conceivable that as a result of this decision a public entity might be protected by a two-year limitations period, while individuals, pursuant to N.J.S.A. 2A:14-1, may be sued for six years. However, the Third Circuit has recently stated that “for statute of limitations purposes, each complaint and different aspects of the same complaint may be treated differently.” Davis v. United States Steel Supply, Etc., 581 F.2d 335, 341 n. 8 (3d Cir. 1978); see Meyers v. Pennypack Woods Home Ownership Ass’n., 559 F.2d 894, 901 (3d Cir. 1977) (“each aspect of a complaint under sections 1981 or 1982 may be given separate statute of limitations treatment depending on the nature of the specific act or acts complained of”). Consequently, this court holds that N.J. S.A. 59:8-8 is the most appropriate statute of limitations governing this action against the defendant Township of Bass River. Since the cause of action accrued on July 17, 1973, and the two-year period thus ended in July of 1975, this action against the Township is barred by the statute of limitations. Defendant Bass River’s motion to dismiss based on the statute of limitations is therefore granted. Having decided that, it is not necessary for this court to address defendant’s other arguments. In summary then, plaintiff’s motion for leave to amend his complaint is dismissed. No such leave is necessary; he may amend as of right. The individual defendants’ (Criss, Mickens, McLennon, Seay and Snyder) motion to dismiss is denied without prejudice. However, service of process on them is quashed. Defendant" }, { "docid": "22581774", "title": "", "text": "Third Circuit The Third Circuit applies “the limitation ... which would be applicable in the courts of the state in which the federal court is sitting had an action seeking similar relief been brought under state law.” Polite v. Diehl, 507 F.2d 119, 122 (3d Cir.1974) (en banc) (applying Pennsylvania one-year statute to § 1983 claims analogous to false arrest, and two-year wrongful injury statute to, claims analogous to assault and battery and coercion of guilty plea); see also Meyers v. Pennypack Woods Home Ownership Association, 559 F.2d 894, 900 (3d Cir. 1977). The court examines “[t]he essential nature of the federal claim, including the relief sought and the type of injury alleged ... ‘within the scheme created by the various state statutes of limitations.’ ” Aitchison v. Raffiani, 708 F.2d 96, 101 (3d Cir.1983) (quoting Davis v. United States Steel Supply, 581 F.2d 335, 337 (3d Cir. 1978)) (applying New Jersey Tort Claim Act two-year limitations). Thus the Third Circuit defines the federal cause of action in terms of factually similar state actions as set out in various state limitations schemes. D. Fourth Circuit In characterizing the nature of a section 1983 cause of action, the Fourth Circuit has stated that “[i]n essence, § 1983 creates a cause of action where there has been injury, under color of state law, to the person or to the constitutional or federal statutory rights which emanate from or are guaranteed to the person. In the broad sense, every cause of action under § 1983 which is well-founded results from ‘personal injuries.’ ” Almond v. Kent, 459 F.2d 200, 204 (4th Cir.1972). Accordingly, the court in Almond applied the Virginia statute governing personal injuries to the plaintiff’s claim against the sheriff and state police “not because there was a right of recovery at common law but because there was a violation of a constitutional right not to be beaten.” Id. at 203-04. Citing Monroe v. Pape, 365 U.S. at 196, 81 S.Ct. at 488, the court held the alleged constitutional violation to be “more important than those transitory torts for which a one-year" }, { "docid": "22950618", "title": "", "text": "held that all claims under § 1983 should be subject to a state’s corresponding personal injury statute of limitations. Although Wilson does not address § 1981 claims, the court concludes that Wilson’s reasoning compels identical limitations treatment for all reconstruction Civil Rights claims. This conclusion is inconsistent with history, precedent, and logic, and in any event is not required by Wilson. While the majority’s holding may not bar the civil rights claims asserted in this case, since violations of § 1981 may be found to have occurred within the shorter limitation period, the majority’s discussion and holding necessarily will have ramifications far beyond the appeal which we decide today. I therefore write separately to record my disagreement with the majority’s analysis. I. Prior to Wilson v. Garcia, this court applied a ease-by-ease analysis in determining which statute of limitations was most appropriate for a particular civil rights cause of action. Polite v. Diehl, 507 F.2d 119 (3d Cir.1974) (in banc). Under this analysis, we have generally held that claims under § 1981 are governed in Pennsylvania by that state’s six-year statute of limitations. See, e.g., Davis v. United States Steel Supply, 581 F.2d 335, 341 (3d Cir.1978), cert. denied, 460 U.S. 1014, 103 S.Ct. 1256, 75 L.Ed.2d 484 (1983); Meyers v. Pennypack Woods Home Ownership Ass’n, 559 F.2d 894, 902-03 (3d Cir.1977). In Davis, we held that a § 1981 claim of racial discrimination in employment, the gravamen of which was interference with economic rights and interests rather than personal injury, should be governed by Pennsylvania’s six-year limitations period. 42 Pa.Cons.Stat.Ann. § 5527 (Purdon 1982). Unless it has been overruled by Wilson, Davis would appear to control the present case, where the gist of the cause of action is economic rather than bodily injury caused by interference with the employment rights of black workers. Wilson holds that “the federal interests in uniformity, certainty, and the minimization of unnecessary litigation” requires that all § 1983 claims be governed by the same statute of limitations in a given state: that state’s personal injury statute. 105 S.Ct. at 1947. Because Wilson looks to" }, { "docid": "1039204", "title": "", "text": "process obligations normally imposed on state actors who wish to flog people or the like. Finally, Cerbone argues that substantive due process should not provide the source of Conway’s due process rights. We may agree without denying that those rights have been violated. 3. Cerbone’s third claim is that, despite Pauk v. Board of Trustees, 654 F.2d 856 (2d Cir.1981), cert. denied, 455 U.S. 1000, 102 S.Ct. 1631, 71 L.Ed.2d 866 (1982), this court should withhold its determination of the statute of limitations issue, 750 F.2d at 212-13, pending the Supreme Court’s disposition of Knoll v. Springfield Township School District, 699 F.2d 137 (3d Cir. 1983), cert. granted, — U.S. -, 104 S.Ct. 3571, 82 S.Ct. 870 (1984), and Garcia v. Wilson, 731 F.2d 640 (10th Cir.) (en banc), cert. granted, — U.S. -, 105 S.Ct. 79, 83 L.Ed.2d 28 (1984), where in both cases a normally applicable statute of limitations period was rejected in favor of a longer period for purposes of § 1983. Argument before the Supreme Court in these two cases was heard on January 14, 1985. See 53 U.S.L.W. 3540 (U.S. Jan. 29, 1985). One can argue that this claim is mooted by Fields v. Board of Higher Education, 63 N.Y.2d 817, 482 N.Y.S.2d 267, 472 N.E.2d 43 (1984), in which the New York Court of Appeals affirmed a decision which apparently holds that state law governing the statute of limitations for § 1983 actions prescribes a three-year time period. In any event, the applicability to this case of the Court’s disposition of the Third and Tenth Circuit cases is speculative at best; Cerbone and the others may raise the issue, if need be, either at trial or after trial under Rule 60(b). 4. Cerbone’s last claim is that Conway failed to allege that Cerbone, in his individual capacity, conspired with a state actor; therefore, Cerbone as an individual did not act “under color of law.” This claim is flatly contradicted by paragraphs 10-14 of Conway’s complaint, set out in the margin. Detective McKinsey was the state actor involved in drawing the criminal complaint in question," }, { "docid": "8721368", "title": "", "text": "on the other hand, assuming her allegations even stated a claim — a proposition on which we have cast considerable doubt (see text supra on the liability of the Government of the Virgin Islands) — would have accrued on October 12, 1978, the date that the criminal proceedings were resolved in Deary’s favor. . See Garcia v. Wilson, 731 F.2d 640, 642-51 (10th Cir.1984) (summarizing position taken by each Court of Appeals on this issue). . Section 31(3)(B) provides for a six-year period for ”[a]n action upon a liability created by statute, other than penalty or forfeiture.” . See, e.g., Aitchison v. Raffiani, 708 F.2d 96, 101 (3d Cir.1983); Knoll v. Springfield Twp. School Dist., 699 F.2d 137, 140-41 (3d Cir.1983), cert. granted, - U.S. -, 104 S.Ct. 3571, 82 L.Ed.2d 870 (1984); Tokarcik v. Forest Hills School Dist., 665 F.2d 443, 448 (3d Cir. 1981); Davis v. United States Steel Supply, 581 F.2d 335, 337 (3d Cir.1978); Jennings v. Shuman, 567 F.2d 1213, 1216 (3d Cir.1977); Meyers v. Pennypack Woods Home Ownership Assn., 559 F.2d 894, 900 (3d Cir.1977); Wilson v. Sharon Steel Corp., 549 F.2d 276, 280 (3d Cir.1977). . If the record as it may be developed were to disclose that the defendants had no notice of dreary’s lawsuit prior to October 7, 1982, then it could be concluded that the amended complaint did not relate back and that Deary’s claim was therefore time-barred, even under a three-year statute of limitations. Fed.R.Civ.P. 15(c). Our scrutiny of the record in this case, including depositions of each of the individual defendants, reveals that the officers did not allege that they had no notice of Deary’s lawsuit prior to October 7, 1981, presumably because they were not focusing on a statute of limitations ground for summary judgment purposes. Because the issue of whether a particular defendant had or did not have notice of the original complaint is a factual question to be resolved in the district court in the first instance— either by way of summary judgment if there is no genuine dispute of fact, or by the jury if" }, { "docid": "23378342", "title": "", "text": "uphold the summary judgment ruling as to appellant’s § 1983 claim if we find that the six-month statute of limitations applies, as appellees contend, as a matter of law. III. Because Congress has not prescribed a specific statute of limitations for actions brought under § 1983, it is necessary to borrow “the state law of limitations governing an analogous cause of action.” Board of Regents v. Tomanio, 446 U.S. 478, 483-84, 100 S.Ct. 1790, 1794-1795, 64 L.Ed.2d 440 (1980). Selection of the appropriate state limitations provision “requires characterization of the essential nature of the federal claim within the scheme created by the various state statutes of limitation.” Davis v. United States Steel Supply, 581 F.2d 335, 337 (3d Cir.1978). See also Skehan v. Board of Trustees, 590 F.2d 470, 476 (3d Cir.1978), cert. denied, 444 U.S. 832, 100 S.Ct. 61, 62 L.Ed.2d 41 (1979); Meyers v. Pennypack Woods Home Ownership Ass’n, 559 F.2d 894, 900 (3d Cir.1977); Polite v. Diehl, 507 F.2d 119, 122 (3d Cir.1974) (in banc). We have analogized a claim of employment discrimination brought under the federal Civil Rights Acts, to “those torts which involve the wrongful interference with another’s economic rights or interests.” Skehan, 590 F.2d at 477 (quoting Davis, 581 F.2d at 339). Although these federal Civil Rights Acts do not create federal tort law, they do create, inter alia, a right to be accorded equal status, free of gender-based discrimination in the pursuit of personal economic interests. Review of the new Pennsylvania limitations schema, however, fails to reveal any provision expressly applicable to claims for the torts of wrongful discharge or interference with contractual or economic rights. See 42 Pa.Cons.Stat.Ann. §§ 5521-5536 (Purdon 1981); Riccobono v. Whitpain Township, 497 F.Supp. 1364, 1375 (E.D.Pa.1980). Further, courts considering these torts have ascertained the applicable limitations period by reference to the two residuary provisions of the limitations scheme— the six-month and the six-year statutes of limitations — which control only when the nature of the dispute falls outside one of the more specific limitations provisions. Compare Clyde v. Thornburgh, 533 F.Supp.279 (E.D.Pa.1982) (six-month limitations period applicable to" }, { "docid": "7130614", "title": "", "text": "a civil rights case is not always a simple matter. Congress has not enacted an applicable statute and so we borrow “the state law of limitations governing an analogous cause of action.” Board of Regents of the University of the State of New York v. Tomanio, 446 U.S. 478, 483-84, 100 S.Ct. 1790, 1794-1795, 64 L.Ed.2d 440 (1980). In Polite v. Diehl, 507 F.2d 119, 122 (3d Cir.1974) (en banc), we said, that as a matter of federal law, the appropriate period “to be applied is that which would be applicable in the courts of the state in which the federal court is sitting had an action seeking similar relief been brought under state law.” The essential nature of the federal claim, including the relief sought and the type of injury alleged should be examined “within the scheme created by the various state statutes of limitations.” Davis v. United States Steel Supply, 581 F.2d 335, 337 (3d Cir.1978); see also Meyers v. Pennypack Woods Home Ownership Ass’n, 559 F.2d 894, 900 (3d Cir.1977). In selecting the appropriate limitations period, moreover, we may not adopt one which is inconsistent with the federal policy underlying the Civil Rights Act. Knoll v. Springfield Township School District, 699 F.2d 137, 142 (3d Cir. 1983). We first examine state law to determine how a claim similar to the one plaintiff brought here would be treated in a state court. Plaintiff argues that the applicable statute is NJ.Stat.Ann. § 2A:14-1 which allows six years for suits alleging “tortious injury to ... personal property, ... to the rights of another ... or for recovery upon a contractual claim or liability, expressed or implied.... ” The borough, on the other hand, suggested in the district court the application of the two-year period of N.J. Stat.Ann. § 2A:14-2 for “an injury to the person caused by the wrongful act, neglect or default of any person.” The court, however, determined that the specific limitations period of the New Jersey Tort Claims Act, N.J.Stat.Ann. § 59:8— 8, was controlling. Section 59:8-8 provides that “a claimant shall be forever barred from recovering" }, { "docid": "22950568", "title": "", "text": "class members was ordered, and a tentative trial date was set for the individual claims. Both the company and the unions have appealed the various findings against them, challenging both legal and factual determinations made by the district court. Plaintiffs have not appealed the rulings on which they or the class were unsuccessful. I. THE STATUTE OF LIMITATIONS FOR SECTION 1981 CLAIMS Because there is no specified federal statute of limitations applicable to § 1981 cases, the district court was required to use the state limitations period most analogous to the civil rights cause of action. Johnson v. Railway Express Agency, 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975). In a Memorandum Opinion issued on June 16, 1975, the district court concluded that the appropriate period was the six years set forth in Pa.Stat.Ann. tit. 12, § 31, rather than the two year period “for injury wrongfully done to the person” as set out in Pa.Stat.Ann. tit. 12, § 34. In this determination, the district judge anticipated our decision some two years later in Meyers v. Pennypack Woods Home Ownership Ass’n., 559 F.2d 894 (3d Cir.1977), where we applied the six year general statute of limitations in a housing discrimination case brought under sections 1981 and 1982. See also Davis v. United States Steel Supply, 581 F.2d 335 (3d Cir.1978) (six year statute of limitations applicable to § 1981 employment discrimination claim). Although the district judge was correct in forecasting that we would adopt a six year limitation period in an employment case, his prescience, like ours, was limited. Neither he, nor this court, foresaw the Supreme Court’s ruling that all § 1983 cases should be governed by a uniform statute of limitations — that provided by the states for personal injury. Wilson v. Garcia, — U.S. —, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). That ruling requires us to reexamine our earlier decisions on the appropriate statute of limitations in Civil Rights cases. In Polite v. Diehl, 507 F.2d 119 (3d Cir.1974) (in banc), we discarded the notion of applying a single limitations period to all §" }, { "docid": "23698943", "title": "", "text": "of Goodman v. Lukens Steel Appellees contend that Al-Khazraji’s Section 1981 claim is barred by the statute of limitations. We disagree. Because Section 1981 refers to no specific federal limitations period, federal courts are obligated to borrow the state limitations period which is applied to the state cause of action most analogous to the civil rights cause of action, so long as it is not deleterious to the federal rights involved. Johnson v. Railway Express Agency, 421 U.S. 454, 464-65, 95 S.Ct. 1716, 1722, 44 L.Ed.2d 295 (1975); See Board of Regents v. Tomanio, 446 U.S. 478, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980); Swietlowich v. County of Bucks, 610 F.2d 1157, 1162 (3d Cir.1979). This Circuit, from at least 1977 until 1985, had applied Pennsylvania’s six-year statute of limitations in discrimination cases brought under Section 1981. See Meyers v. Pennypack Woods Home Ownership Association, 559 F.2d 894 (3d Cir. 1977); Wilson v. Sharon Steel Corporation, 549 F.2d 276 (3d Cir.1977). Judge Ziegler, in his opinion below, properly applied the six-year limitations period to plaintiff’s claim. Neither he nor this court foresaw the Supreme Court’s recent ruling in Wilson v. Garcia, — U.S. -, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). See Goodman v. Lukens Steel, 777 F.2d 113, 118 (3d Cir.1985). However, Wilson v. Garcia has made it necessary for this court to re-examine its prior decisions. Consequently, in Goodman, we held that the Supreme Court’s ruling mandated that Pennsylvania’s statute of limitations for personal injuries be applied to actions brought under Section 1981. This is a two-year statute of limitations. 42 Pa.C.S.A. § 5524. As noted above, the general presumption is that federal courts should apply the law in effect at the time that cases are adjudi cated. Gulf Offshore Company, 453 U.S. at 486 n. 16, 101 S.Ct. at 2879 n. 16; Scott, 725 F.2d at 228. Chevron Oil Co. v. Hudson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), sets forth the criteria for deciding whether to apply retroactively the holding of a case. See Fitzgerald v. Larson, 769 F.2d 160 (3d Cir.1985); Smith" }, { "docid": "8149908", "title": "", "text": "forum state’s statute of limitations governing those acts that are the most clearly analogous to the acts alleged by the plaintiff in her complaint will control in this case. Runyon v. McCrary, 421 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976); Jennings v. Shuman, 567 F.2d 1213 (3d Cir. 1977). The defendants argue that, under Pennsylvania law, the most clearly analogous statute of limitations is the two year limitation governing personal injury actions. See, 42 Pa.C.S.A. § 5524(2). Applying this statute, the defendants contend that all claims arising prior to November 12, 1978 must be dismissed. We disagree. In our view there are two major problems with the defendants’ argument on this issue. First, in this case we doubt that the defendants have selected the appropriate state statute of limitation. In her complaint the plaintiff alleges that she was the victim of discrimination occurring in the context of an employment relationship. In the past, in civil rights actions premised on claims of employment discrimination, courts have rejected analogies to Pennsylvania’s two-year statute of limitations. See Davis v. United States Steel Supply Co., 581 F.2d 335 (3d Cir. 1978); Wilson v. Sharon Steel Corp., 549 F.2d 276 (3d Cir. 1977); Morgan v. Sharon, Pa. Board of Education, 472 F.Supp. 1157 (W.D.Pa. 1979); Wetzel v. Liberty Mutual Ins. Co., 451 F.Supp. 967 (W.D.Pa.1978). Instead these employment discrimination suits have generally been compared to contract actions in determining the proper statute of limitations. Admittedly it can be argued that our case is significantly different from prior employment discrimination eases. In all of the prior cases, the plaintiff’s prayer for relief sought damages that were contractual in nature. See, e. g. Davis v. United States Steel Supply, supra, at 338; Wilson v. Sharon Steel Corp., supra; Wetzel v. Liberty Mutual Ins. Co., supra. In this case, however, the plaintiff seeks damages for emotional distress and aggravation of a preexisting physical condition. These are elements of damage that are typically associated with tort claims. We do not believe, however, that these unique damage claims change the fundamental nature of the relationship between the parties." }, { "docid": "23698947", "title": "", "text": "of his right to lawfully pursue his business, employment, or personal affairs. Meyers appears to complain of just such a denial.” 559 F.2d at 902. Having reached this conclusion, the court had no trouble in identifying the related six-year statute of limitations for contract actions and applying it to Meyers’ claims. Id. at 903; See Wilson v. Sharon Steel Company, 549 F.2d 276 (3d Cir.1977); Collier v. Philadelphia Gas Works, 441 F.Supp. 1208, 1212 (E.D.Pa.1977); Pierce v. Catalytic, 430 F.Supp. 1180, 1182 (E.D.Pa.1977). After Meyers and Wilson, a potential plaintiff whose complaint was based on “the denial of his right to lawfully pursue his ... employment” could be fairly confident that a federal court in this Circuit would apply Pennsylvania's six-year statute of limitations to his or her section 1981 claim. Although there were some earlier cases that borrowed a shorter limitations period for Section 1981 actions, see Wilson v. Sharon Steel Corporation, 399 F.Supp. 403 (W.D.Pa.1975), rev’d 549 F.2d 276 (3d Cir.1977); Davis v. United States Steel Supply Company, 405 F.Supp. 394 (W.D. Pa.1976), rev’d 581 F.2d 335 (3d Cir.1978); Presseisen v. Swarthmore College, 71 F.R.D. 34 (E.D.Pa 1976), by 1977 the district courts were uniformly applying the six-year limitations period for actions alleging interference with contractual rights. See Collier, 441 F.Supp. at 1212; Groves v. Insurance Company of North America, 433 F.Supp. 877, 884 (E.D.Pa.1977); Pierce v. Catalytic, Inc., 430 F.Supp. at 1182; see also Jones v. United Gas Improvement Corporation, 383 F.Supp. 420, 430-31 (E.D.Pa 1974). Just a few months after Al-Khazraji was informed of the Tenure Committee’s decision, the Third Circuit, in Davis v. United States Steel Supply, 581 F.2d 335 (3d Cir. 1978), made it absolutely clear that the six-year limitations period for contract actions applied to Section 1981 actions brought to redress employment discrimination. See Liotta v. National Forge Company, 629 F.2d 903, 906 (3d Cir.1980), cert. denied 451 U.S. 970, 101 S.Ct. 2046, 68 L.Ed.2d 348 (1981); Skehan v. Board of Trustees of Bloomsburg State College, 590 F.2d 470 (3d Cir.1978), cert. denied 444 U.S. 832,100 S.Ct. 61, 62 L.Ed.2d 41 (1979). Thus," }, { "docid": "23698946", "title": "", "text": "Al-Khazraji’s claim. i. The Change from Prior Law The first Chevron factor requires that the prior law have been sufficiently clear that the plaintiff could have reasonably relied upon it in delaying suit. Fitzgerald v. Larson, 769 F.2d at 163. In 1973, when the complaint was filed in the Goodman case, there was no established precedent in the Third Circuit to indicate the appropriate limitations period for Section 1981 claims. However, when the cause of action in AlKhazraji’s case arose, in early 1978, this was no longer true. In Meyers v. Pennypack Woods Home Ownership Ass’n, 559 F.2d 894 (3d Cir. 1977) the Third Circuit definitively applied Pennsylvania’s six-year statute of limitations to a Section 1981 action. Meyers concerned a racially-motivated refusal to sell a house to plaintiff, a black man. The Court analogized Meyers’ claim to a tort action involving “the wrongful interference with another’s financial, commercial, or business rights. A victim of one of these torts suffers not so much from an emotional or mental trauma as he does from the actual denial of his right to lawfully pursue his business, employment, or personal affairs. Meyers appears to complain of just such a denial.” 559 F.2d at 902. Having reached this conclusion, the court had no trouble in identifying the related six-year statute of limitations for contract actions and applying it to Meyers’ claims. Id. at 903; See Wilson v. Sharon Steel Company, 549 F.2d 276 (3d Cir.1977); Collier v. Philadelphia Gas Works, 441 F.Supp. 1208, 1212 (E.D.Pa.1977); Pierce v. Catalytic, 430 F.Supp. 1180, 1182 (E.D.Pa.1977). After Meyers and Wilson, a potential plaintiff whose complaint was based on “the denial of his right to lawfully pursue his ... employment” could be fairly confident that a federal court in this Circuit would apply Pennsylvania's six-year statute of limitations to his or her section 1981 claim. Although there were some earlier cases that borrowed a shorter limitations period for Section 1981 actions, see Wilson v. Sharon Steel Corporation, 399 F.Supp. 403 (W.D.Pa.1975), rev’d 549 F.2d 276 (3d Cir.1977); Davis v. United States Steel Supply Company, 405 F.Supp. 394 (W.D. Pa.1976)," }, { "docid": "22788211", "title": "", "text": "criminal prosecution was filed in November 1983.) Kolimaga brief at 4. Each plaintiff filed his complaint more than two years after the date on which the district court found his claim to have accrued. . Kolimaga filed his complaint on February 12, 1987. According to his complaint, the underlying proceedings terminated in his favor on February 14, 1985, when all charges against him were nolle prossed and/or dismissed. Kolima-ga Complaint ff 13, 24. Rose filed his original complaint on October 27, 1986. He alleges in his amended complaint that the criminal proceedings terminated in his favor in early December 1984, when his counsel was notified that the case against him would not be prosecuted, or in February or March 1985, when the charges against him apparently were formally dismissed. Rose Amended Complaint ¶ 23. . See, e.g., Bethel v. Jendoco Const. Corp., 570 F.2d 1168, 1174 (3d Cir.1978) (if time bar not apparent on face of complaint, it may not afford the basis for a dismissal). . In contrast to a section 1983 claim for malicious prosecution, a section 1983 claim for malicious abuse of process lies where \"prosecution is initiated legitimately and thereafter is used for a purpose other than that intended by the law.” Jennings v. Shuman, 567 F.2d 1213, 1217 (3d Cir.1977). .In Deary, the plaintiff brought a number of common law and section 1983 claims against various defendants, including five police officers. Her section 1983 claims against the officers included charges of false arrest, malicious prosecution, and abuse of process. The Deary court noted that although a statute of limitations defense had not been raised in the district court, one officer had raised the issue in his brief on appeal and the other four had addressed it at oral argument. The Deary court stated that it accordingly would \"underscore ... the relevant principles bearing on the statute of limitations issue.\" 746 F.2d at 196. The court then discussed the applicable limitations period, as well as the accrual issue. Id. at 196-99. It concluded that because the question of whether the plaintiff’s section 1983 claims were time" }, { "docid": "8721367", "title": "", "text": "(3d Cir. 1982) (per curiam); see Keating v. Carey, 706 F.2d 377, 382 (2d Cir.1983). Deary’s claim for false arrest accrued on the date of her arrest, August 4, 1978, see Sandutch, supra, 684 F.2d at 254; Singleton v. City of New York, 632 F.2d 185, 191 (2d Cir. 1980); Brewster v. Woodward & Lothrop, 530 F.2d 1016, 1017 (D.C.Cir.1976); Hitchmon v. United States, 585 F.Supp. 256, 259 (S.D.Fla. 1984); Shulman v. Miskell, 626 F.2d 173, 176 (D.C.Cir.1980); Rinehart v. Locke, 454 F.2d 313, 315 (7th Cir.1971). Her claim of false imprisonment must have accrued on this same date, as she was released on bail that day. Deary also alleges abuse of process and infliction of emotional distress as possible bases of tort liability. A cause of action for abuse of process or infliction of emotional distress would necessarily accrue on the same date as a cause of action for false arrest, since on that date Deary would have reason to know of the injury which those two torts encompass. Her claim of malicious prosecution, on the other hand, assuming her allegations even stated a claim — a proposition on which we have cast considerable doubt (see text supra on the liability of the Government of the Virgin Islands) — would have accrued on October 12, 1978, the date that the criminal proceedings were resolved in Deary’s favor. . See Garcia v. Wilson, 731 F.2d 640, 642-51 (10th Cir.1984) (summarizing position taken by each Court of Appeals on this issue). . Section 31(3)(B) provides for a six-year period for ”[a]n action upon a liability created by statute, other than penalty or forfeiture.” . See, e.g., Aitchison v. Raffiani, 708 F.2d 96, 101 (3d Cir.1983); Knoll v. Springfield Twp. School Dist., 699 F.2d 137, 140-41 (3d Cir.1983), cert. granted, - U.S. -, 104 S.Ct. 3571, 82 L.Ed.2d 870 (1984); Tokarcik v. Forest Hills School Dist., 665 F.2d 443, 448 (3d Cir. 1981); Davis v. United States Steel Supply, 581 F.2d 335, 337 (3d Cir.1978); Jennings v. Shuman, 567 F.2d 1213, 1216 (3d Cir.1977); Meyers v. Pennypack Woods Home Ownership Assn., 559" }, { "docid": "8721369", "title": "", "text": "F.2d 894, 900 (3d Cir.1977); Wilson v. Sharon Steel Corp., 549 F.2d 276, 280 (3d Cir.1977). . If the record as it may be developed were to disclose that the defendants had no notice of dreary’s lawsuit prior to October 7, 1982, then it could be concluded that the amended complaint did not relate back and that Deary’s claim was therefore time-barred, even under a three-year statute of limitations. Fed.R.Civ.P. 15(c). Our scrutiny of the record in this case, including depositions of each of the individual defendants, reveals that the officers did not allege that they had no notice of Deary’s lawsuit prior to October 7, 1981, presumably because they were not focusing on a statute of limitations ground for summary judgment purposes. Because the issue of whether a particular defendant had or did not have notice of the original complaint is a factual question to be resolved in the district court in the first instance— either by way of summary judgment if there is no genuine dispute of fact, or by the jury if there is — we are precluded at this time from further consideration of the statute of limitations defense as a basis for deciding this appeal of the five individual defendants in this case. . Varlack v. SWC Caribbean, Inc., 550 F.2d 171, 174 (3d Cir. 1977), held, inter alia, that the plaintiff seeking to amend the original complaint bears the burden of satisfying all of the conditions of Rule 15. See generally 3 Moore’s Federal Practice ¶ 15.15[4.-1] at 15-221 (2d ed. 1984). . The Government of the Virgin Islands took a protective cross-appeal (at No. 83-3409) from a prior district court decision in this case. In light of our disposition of this case, we will dismiss the cross-appeal as moot. A. LEON HIGGINBOTHAM, Jr., Circuit Judge, concurring and dissenting. The court holds that plaintiff’s section 1983 claims, analogous to false arrest and false imprisonment, against the Government of the Virgin Islands are barred for failure to comply with the notice requirements of the Virgin Islands Tort Claims Act (VITCA). Because I believe that it" } ]

[ { "docid": "21029855", "title": "", "text": "incident and in which Coe described Street’s obscene statements in virtually the same terms that he testified to at trial. Street contends that the report was improperly admitted because it was hearsay that did not come within any of the recognized exceptions to the hearsay rule. The report was properly admitted, however, pursuant to Federal Rule of Evidence 801(d)(1)(B) as a prior consistent statement. “Federal Rule of Evidence 801(d)(1)(B) provides that an extrajudicial statement is not hearsay if ‘[t]he declarant testifies at trial and is subject to cross-examination concerning the statement, and the statement is ... consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive.’ ” United States v. Blankinship, 784 F.2d 317, 319 (8th Cir.1986). Coe’s statement satisfied these requirements. He testified at trial and was subject to cross-examination. The statement was offered to rebut a charge of recent fabrication of testimony and was consistent with Coe’s testimony at trial. IV. A. The indictment charged that Street “forcibly” assaulted and threatened the federal officers. Street contends that the evidence did not establish this statutory element of the offense because he never had physical contact with the rangers. “Force is a necessary element of any § 111 conviction. However, that element may be satisfied by proof of actual physical contact, or by proof of ‘such a threat or display of physical aggression toward the officer as to inspire fear of pain, bodily harm, or death.’” United States v. Schrader, 10 F.3d 1345, 1348 (8th Cir.1993) (quoting United States v. Walker, 835 F.2d 983, 987 (2d Cir.1987)). The evidence must show that “the defendant’s behavior would reasonably have inspired fear in a reasonable person.” Walker, 835 F.2d at 987. The statute’s force requirement therefore may be satisfied even if the defendant has no physical contact with the officer, as long as his conduct places the officer in fear for his life or safety. In Shedlock, the defendant “did not touch [the officer] at any time,” but the force requirement was satisfied by the defendant’s violently pounding" } ]

[ { "docid": "38529", "title": "", "text": "another, or by a threat to inflict injury upon the person of another which, when coupled with an apparent present ability, causes a reasonable apprehension of immediate bodily harm.” United States v. Joe, 831 F.2d 218, 220 (10th Cir.1987). However, such a definition of “simple assault” is really nothing more than a non-exclusive recitation of what constitutes assault. It does little to differentiate it from “all other cases” assault in § 111 as that statute now exists. Addressing this problem, the Second and Fifth Circuits have held that § 111 creates the following separate offenses: “(1) simple assault, which, in accord with the common-law definition, does not involve touching; (2) ‘all other cases,’ meaning assault that does involve contact but does not result in bodily injury or involve a weapon; and (3) assaults resulting in bodily injury or involving a weapon.” Chestaro, 197 F.3d at 606; United States v. Ramirez, 233 F.3d 318, 321-22 (5th Cir.2000). However, as noted by the Eighth Circuit, at least one circuit has expressly limited “simple assault” under § 111(a) to those assaults without physical contact. Yates, 304 F.3d at 822 (citing McCulligan, 256 F.3d at 102-04). The Eighth Circuit, relying on Congress’ use of the phrase in § 113, declined to so limit its definition of “simple assault.” Id. We now join the Eighth Circuit in holding that, in the context of § 111, the definition of “simple assault” is assault which does not involve actual physical contact, a deadly or dangerous weapon, bodily injury, or the intent to commit murder or any felony other than those referred to in § 113(a)(2). We are persuaded by the reasoning of the Eighth Circuit that “simple assault” in § 111 should be defined by reference both to the common law meaning of assault and to the meaning of “simple assault” as Congress uses that phrase in § 113. See Yates, 304 F.3d at 823. In the same act in which Congress added the distinction of “simple assault” versus “all other cases” assault to § 111, it also amended § 113 to redesignate the various types of" }, { "docid": "6295828", "title": "", "text": "of demarcation between simple assault and battery. Wayne R. LaFave, Substantive Criminal Law § 16.1(a), (2d ed.2003); Ramirez, 233 F.3d at 321-22 (“[A]t common law ‘simple assault’ did not involve any physical contact.'”); accord Chestaro, 197 F.3d at 606 (agreeing with trial court’s construction that “simple assault, which in accord with its common-law definition, does not involve touching”). Even though strict adherence to the common-law definition of simple assault requires a finding that physical contact is an element of “all other assaults” under § 111, McCulligan, 256 F.3d at 104; Ramirez, 233 F.3d at 322; Chestaro, 197 F.3d at 606, some circuits have broadened its definition by looking to 18 U.S.C. § 113, a generalized assault statute for maritime and federal territorial jurisdiction containing a simple assault provision, Hathaway, 318 F.3d at 1008; Yates, 304 F.3d at 822, or the Model Penal Code, United States v. Duran, 96 F.3d 1495, 1509 (D.C.Cir.1996). The government cites to the circuits which departed from the common law to support its argument that physical contact is not necessary for “all other cases” assaults. But we note that even in these circuits “all other cases” assault requires either physical contact or a similar aggravating factor, e.g., intent to commit murder or serious felony, Hathaway, 318 F.3d at 1008-09; Yates, 304 F.3d at 822, and apprehension of immediate serious bodily harm or death, United States v. Fallen, 256 F.3d 1082, 1087-88 (11th Cir.2001). However, Vallery’s indictment did not allege physical contact or any aggravating facts, and thus, the finer points of the definition of “simple assault” are not before us. Under any formulation of simple assault, the facts alleged by Vallery’s indictment do not give rise to “all other cases” assault unless the simple assault provision applies only to the word “assaults” and not to “resists, opposes, impedes, intimidates, or interferes with.” With that understanding, we turn to the scope of the simple assault provision within § 111(a). The government contends that we should look to § 113, the only other statute passed by Congress referencing simple assault, to guide our inquiry as to its application" }, { "docid": "38528", "title": "", "text": "the phrase “simple assault” in only one other criminal statute, 18 U.S.C. § 113 (assaults within maritime and territorial jurisdiction). After observing that neither § 111 nor § 113 define “assault,” we have noted that “where a federal criminal statute uses a common-law term of established meaning without otherwise defining it, the general practice is to give that term its common-law meaning.” United States v. Gauvin, 173 F.3d 798, 802 (10th Cir.1999) (quoting United States v. Turley, 352 U.S. 407, 411, 77 S.Ct. 397, 1 L.Ed.2d 430 (1957)). Applying this practice, we arrived at a definition of assault for use in § 111 and § 113 as either an attempted battery or as placing another in reasonable apprehension of immediate bodily harm. Id.; see also United States v. Calderon, 655 F.2d 1037, 1038 (10th Cir.1981) (construing 18 U.S.C. § 351 and relying on the definition of “assault” derived for § 113). Specifically addressing § 113, we have held that “simple assault” “is committed by either a willful attempt to inflict injury upon the person of another, or by a threat to inflict injury upon the person of another which, when coupled with an apparent present ability, causes a reasonable apprehension of immediate bodily harm.” United States v. Joe, 831 F.2d 218, 220 (10th Cir.1987). However, such a definition of “simple assault” is really nothing more than a non-exclusive recitation of what constitutes assault. It does little to differentiate it from “all other cases” assault in § 111 as that statute now exists. Addressing this problem, the Second and Fifth Circuits have held that § 111 creates the following separate offenses: “(1) simple assault, which, in accord with the common-law definition, does not involve touching; (2) ‘all other cases,’ meaning assault that does involve contact but does not result in bodily injury or involve a weapon; and (3) assaults resulting in bodily injury or involving a weapon.” Chestaro, 197 F.3d at 606; United States v. Ramirez, 233 F.3d 318, 321-22 (5th Cir.2000). However, as noted by the Eighth Circuit, at least one circuit has expressly limited “simple assault” under § 111(a)" }, { "docid": "11156414", "title": "", "text": "officers.” United States v. Feola, 420 U.S. 671, 684, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975). The government states correctly that, at common law, there were no degrees of assault or battery. Rather, “assault” was defined as the “attempt or offer to beat another, without touching him,” 3 Blackstone, Commentaries at 120, or the “placing of another in reasonable apprehension of a battery.” United States v. Ramirez, 233 F.3d 318, 321-22 (5th Cir. 2000) (citing LaFave & Scott, Substantive Criminal Law § 7.16 (1986)). “Battery” was defined at common law as the unlawful beating of another, including “[t]he least touching of another’s person willfully, or in anger.” Blackstone, Commentaries at 120. Battery could rise to the crime of mayhem where the defendant caused permanent injury. Id. at 121. Over time, many jurisdictions have come to úse the term “assault” to describe both assaults and batteries. Rollin M. Perkins and Ronald N. Boyce, Criminal Law 159-60 (3d ed. 1982); Black’s Law Dictionary 114 (6th ed. 1990). In United States v. Chestaro, 197 F.3d 600 (2d Cir.1999), the Second Circuit recognized that the undefined term “simple assault” also appears in 18 U.S.C. § 113, “which has been held to ‘embrace the common law meaning of that term.’ ” Chesta-ro, 197 F.3d at 605 (quoting United States v. Stewart, 568 F.2d 501, 504 (6th Cir. 1978)); see also United States v. Estrada-Fernandez, 150 F.3d 491, 494 n. 1 (5th Cir.1998); United States v. Juvenile Male, 930 F.2d 727, 728 (9th Cir.1991). Applying case law interpreting § 113 to similar language in § 111, the Chestaro Court found that “simple assault” is a crime “committed by either a willful attempt to inflict injury upon the person of another, or by a threat to inflict injury upon the person of another which, when coupled with an apparent present ability, causes a reasonable apprehension of immediate bodily harm.” Id. at 605 (quoting United States v. Johnson, 637 F.2d 1224, 1242 n. 26 (9th Cir. 1980)). Expanding further upon this definition, the Second Circuit agreed with the government’s position in that case: [F]or practical purposes § 111" }, { "docid": "6295826", "title": "", "text": "physical contact rule simply was irrelevant to defining crimes under § 111. So to prevail, the government must show that the 1994 amendment applied only to the word “assault,” which implicates the plain meaning of “simple assault,” not the other verbs proscribing conduct. Vallery hangs his hat on the plain meaning of the 1994 amendment, “acts in violation of this section constitute only simple assault.” Violent Crime Control and Law Enforcement Act of 1994 § 320101(a)(1) (emphasis added). Holding the amendment to apply only to “assault” rather than to the remainder of this section, Vallery argues, would impermissibly render the amendment superfluous. See Chemetco, 274 F.3d at 1160. If Congress had intended the 1994 amendment to apply only to “assault,” it could have simply repeated the government’s alleged distinction in § 111(a)(1) in the punishment provision. But, while strongly suggestive that the 1994 amendment applies to all illegal acts of § 111(a), we do not think these words completely foreclose the government’s view. It is the meaning of “simple assault” of the punishment provision, which is not defined by the statute, that is our starting point. “[WJhere a federal criminal statute uses a common-law term of established meaning without otherwise defining it, the general practice is to give that term its common-law meaning.” United States v. Turley, 352 U.S. 407, 411, 77 S.Ct. 397, 1 L.Ed.2d 430 (1957) (citations omitted); United States v. Perez, 43 F.3d 1131, 1137 (7th Cir.1994) (citations omitted). There is no dispute that “simple assault” is a crime “committed by either a willful attempt to inflict injury upon the person of another, or by a threat to inflict injury upon the person of another which, when coupled with an apparent present ability, causes a reasonable apprehension of immediate bodily harm.” Chestaro, 197 F.3d at 605 (quoting United States v. Johnson, 637 F.2d 1224, 1242 n. 26 (9th Cir.1980)); accord United States v. Ramirez, 233 F.3d 318, 321-22 (5th Cir.2000), overruling on other grounds recognized by United States v. Longoria, 298 F.3d 367, 372 n. 6 (5th Cir.2002). Under the common law, physical contact is the line" }, { "docid": "23310553", "title": "", "text": "were we to look at the factual record in Popal’s case, see Singh v. Ashcroft, 383 F.3d 144, 162-63 (3d Cir.2004), we would not be able to conclude that he acted with intent. The police complaint merely reiterates the generic definition of the crime, without specifying whether Popal acted intentionally, knowingly, or recklessly. The complaint does specify that Popal shot a minor with a compressed air pistol, and the affidavit of probable cause describes the events in more detail, but neither states that Popal was charged with acting with intent. The record contains no plea document, plea colloquy, judgment of conviction, or other proof of what facts Popal admitted in pleading guilty to simple assault. . We acknowledge that the legislative history of § 16(a) provides some support for the government’s theory that that section encompasses simple assault. See S.Rep. No. 98-225, at 307 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3487 (\"The former category [§ 16(a)] would include a threatened or attempted simple assault or battery on another person. ... ”). Nonetheless, we do not think that this legislative history undermines our conclusion. Instead, we think it likely that, when the drafters of § 16 mentioned simple assault as an exemplary crime of violence, they had in mind traditional common-law simple assault, defined as a crime \"committed by either a willful attempt to inflict injury upon the person of another, or by a threat to inflict injury upon the person of another which, when coupled with an apparent present ability, causes a reasonable apprehension of immediate bodily harm.” United States v. McCulligan, 256 F.3d 97, 103 (3d Cir.2001) (quoting United States v. Chestaro, 197 F.3d 600, 605 (2d Cir.1999)). The common law thus required ‘'willfulness,” i.e., intent, in order to find a defendant guilty of simple assault. It is entirely plausible that this definition might have been Congress’s referent in discussing § 16(a). Indeed, we have held that the term \"simple assault” used in the federal assault statute, 18 U.S.C. § 111, was meant to “equate[] with traditional common-law assault.” McCulligan, 256 F.3d at 104. If the legislative history cited" }, { "docid": "11159366", "title": "", "text": "statute may be violated ... by minimal physical contact, or even without the presence of any physical contact”) (internal citations omitted); United States v. Fernandez, 837 F.2d 1031, 1035 (11th Cir.1988) (citing United States v. Mathis, 579 F.2d 415, 418 (7th Cir.1978), for the proposition that “evidence that [the] accused used some quantum of force or threat of force is sufficient to support conviction under section 111”). Fallen argues that because these cases were decided before section 111 was amended by the Violent Crime Control Act of 1994 to add the lesser included offense of simple assault, they are no longer good law to the extent that they allow mere threats of force to constitute a forcible assault. Now, Fallen avers, ah threats of force unaccompanied by physical contact must be treated as simple assaults under section 111. Fallen cites no case law for this proposition, and we find no post-1994 Eleventh Circuit decisions addressing the issue. Other circuits have rejected Fallen’s overly broad definition of simple assault, however, and have held instead that the more narrow common law definition of simple assault applies to section 111. See United States v. Chestaro, 197 F.3d 600, 605-06 (2d Cir.1999). We think that this is the better view. At common law, simple assault is defined as “a willful attempt to inflict injury upon the person of another, or ... a threat to inflict injury upon the person of another which, when coupled with an apparent present ability, causes a reasonable apprehension of immediate bodily harm.” Id. at 605 (internal quotation omitted); see also United States v. LeCompte, 108 F.3d 948 (8th Cir.1997). A forcible assault would therefore have to be something more, such as a willful attempt or threat to inflict serious bodily injury, coupled with an apparent present ability, which causes the intended victim a reasonable apprehension of immediate serious bodily harm or death. Cf. Chambers, 195 F.3d at 277 (“The element of force necessary for a [forcible assault] conviction under [section 111] may be shown by such a threat or display of physical aggression toward the officer as to inspire" }, { "docid": "6072624", "title": "", "text": "II. DISCUSSION We review the district court’s interpretation and application of the sentencing guidelines de novo. United States v. Smotherman, 285 F.3d 1115, 1116 (8th Cir. 2002). “We review questions of statutory interpretation de novo.” United States v. Milk, 281 F.3d 762, 766 (8th Cir.2002). The factual predicate underlying Yates’s sentencing application is not in dispute. A. Simple Assault or Something Else Yates contends the district court erred in applying the “all other cases” portion of 18 U.S.C. § 111(a), as opposed to the simple assault portion which carries a lower statutory maximum sentence. Section 111 provides three different maximum sentences for forcibly assaulting an officer while the officer is engaged in the performance of official duties. Where the conduct constitutes only simple assault, the defendant shall be imprisoned not more than one year. “[I]n all other cases,” the defendant shall be imprisoned not more than three years. 18 U.S.C. § 111(a). Section 111(b) supplies authority for an enhanced penalty for cases where a defendant uses a dangerous weapon or inflicts bodily injury. In such cases, a defendant may be sentenced to a maximum of ten years imprisonment. In the Eighth Circuit, we have not yet examined how the penalty provisions of § 111 interrelate. Our sister circuits generally agree that “for practical purposes § 111 'creates three distinct categories of conduct: (1) simple assault, which, in accord with the common-law definition, does not involve touching; (2) ‘all other cases,’ meaning assault that does involve contact but does not result in bodily injury or involve a weapon; and (3) assaults resulting in bodily injury or involving a weapon.” United States v. Chestaro, 197 F.3d 600, 606 (2d Cir.1999) cert. denied, 530 U.S. 1245, 120 S.Ct. 2694, 147 L.Ed.2d 965 (2000); see also United States v. McCulligan, 256 F.3d 97, 102 (3d Cir.2001); United States v. Campbell, 259 F.3d 293, 296 (4th Cir.2001); United States v. Ramirez, 233 F.3d 318, 321-22 (5th Cir.2000). Relying on these decisions, Yates argues that § 111 creates three mutually exclusive categories of assault: (1) simple assault, (2) assault involving a deadly or dangerous weapon or" }, { "docid": "6072627", "title": "", "text": "the common law definition of statutory terms.” United States v. Shabani, 513 U.S. 10, 13, 115 S.Ct. 382, 130 L.Ed.2d 225 (1994). “The common law offense of simple assault ... requires the showing of an offer or attempt by force or violence to do a corporal injury to another.” United States v. Bear Ribs, 562 F.2d 563, 564 (8th Cir.1977). Our sister circuits expressly limit simple assault, in the § 111(a) context, to assaults without physical contact. See, e.g., McCulligan, 256 F.3d at 102-04 (noting common-law assault defined as “attempt or offer to beat another, without touching him,” or by “placing of another in reasonable apprehension of a battery”) (citing authorities). Additional limitations are needed in this case to distinguish simple assault from the remaining category of assaults contained in § 111(a), that is, “all other cases.” At common law, assault was not defined in gradations because physical contact transformed assault into battery. Id. at 102-03. The language contained in 18 U.S.C. § 113 assists us in limiting simple assault and distinguishing it from other grades of assault. See McCulligan, 256 F.3d at 104 (“The similar language of [§ 113] ... lends support to the conclusion that ‘simple assault’ equates with traditional common-law assault.”). Section 113 sets forth seven separate types of assault based upon particular characteristics or results. Section 113 creates different penalties for each of the following acts: (1) assault with intent to commit murder; (2) assault with intent to commit any other felony; (3) assault with a dangerous weapon; (4) assault by striking, beating, or wounding; (5) simple assault; (6) assault resulting in serious bodily injury; and (7) assault resulting in substantial bodily injury. 18 U.S.C § 113(a). In 1994, at the same time Congress amended § 111(a), Congress amended § 113(a) to include the redesignation of the above subsections. See Sept. 13, 1994, Pub.L. 103-322, Title XXXII, § 170201(c)(4)-(6), 108 Stat.2042 (amendment also added subsection (7)). We hold that, in the context of § 111, the definition of simple assault is conduct in violation of § 111(a), which does not involve actual physical contact, a dangerous" }, { "docid": "15260969", "title": "", "text": "States v. Evans, 333 U.S. 483, 486, 68 S.Ct. 634, 92 L.Ed. 823 (1948). The term “simple assault” is not defined anywhere in the federal criminal code; however, it does appear in another provision of the code that has been the subject of considerable judicial interpretation. The statute proscribing assaults within the special maritime and territorial jurisdiction of the United States, 18 U.S.C. § 113, includes a reduced penalty for simple assault in subsection (5), which has been held to “embrace the common law meaning of that term.” United States v. Stewart, 568 F.2d 501, 504 (6th Cir.1978); see United States v. Estrada-Fernandez, 150 F.3d 491, 494 n. 1 (5th Cir.1998); United States v. Juvenile Male, 930 F.2d 727, 728 (9th Cir.1991); see also United States v. Shabani, 513 U.S. 10, 13, 115 S.Ct. 382, 130 L.Ed.2d 225 (1994) (following “the settled principle of statutory construction that, absent contrary indications, Congress intends to adopt the common law definition of statutory terms”). The common-law meaning of “simple assault” is not disputed by either Chestaro or the government; it is a crime “committed by either a willful attempt to inflict injury upon the person of another, or by a threat to inflict injury upon the person of another which, when coupled with an apparent present ability, causes a reasonable apprehension of immediate bodily harm.” United States v. Johnson, 637 F.2d 1224, 1242 n. 26 (9th Cir.1980) (internal quotation marks and citation omitted). Because Congress was silent as to the meaning of “simple assault” when it adopted the 1994 amendments to § 111, it may safely be assumed, as Ches-taro concedes, that Congress intended to adopt the term as used in § 113, which in turn has been construed, appropriately in our view, to incorporate the common-law definition. Chestaro argues in his brief that incorporating the common-law definition of simple assault does not save the statute, however, because the common-law definition of simple assault is ambiguous and still does not provide a principled way to distinguish between “simple assault” and “all other cases” of non-injurious forcible conduct. He contends that § 113 does" }, { "docid": "4265117", "title": "", "text": "years, or both. Davis was tried and convicted under the misdemeanor clause in Section 111(a). We therefore must decide whether the evidence permitted the jury to find, beyond a reasonable doubt, that Davis “forcibly assaulted], resisted], oppose[d], impede[d], intimidate[d], or interfere[d] with [a U.S. officer or employee] while engaged in or on account of the performance of official duties” and, in doing so, committed “simple assault.” A. “Simple Assault” Under Section 111(a) In United States v. Chestaro, 197 F.3d 600 (2d Cir.1999), we considered a vagueness challenge to the predecessor version of Section 111, which was identical to the current version in relevant part. The appellant in that case argued that “simple assault,” which delineates misdemeanor conduct, was not clearly defined and that the statute therefore did not sufficiently distinguish between misdemeanors and felonies. We disagreed. We noted “‘the settled principle of statutory construction that, absent contrary indications, Congress intends to adopt the common law definition of statutory terms.’ ” Id. at 605(quoting United States v. Shabani, 513 U.S. 10, 13, 115 S.Ct. 382, 130 L.Ed.2d 225 (1994)). We also pointed out that the term “simple assault” appears elsewhere in the U.S.Code — in 18 U.S.C. § 113 — and that it had “been held to ‘embrace the common law meaning’ ” in that context. Chestaro, 197 F.3d at 605 (quoting United States v. Stewart, 568 F.2d 501, 504 (6th Cir.1978)). We therefore held that “simple assault,” as used in Section 111(a), incorporated the established common law definition of the phrase: a crime, not involving touching, “committed by either a willful attempt to inflict injury upon the person of another, or by a threat to inflict injury upon the person of another which, when coupled with an apparent present ability, causes a reasonable apprehension of immediate bodily harm.” Chestaro, 197 F.3d at 605, 606(internal quotation marks omitted); see also United States v. Vallery, 437 F.3d 626, 631 (7th Cir.2006) (“Under the common law, physical contact is the line of demarcation between simple assault and battery.”). Following Chestaro, we clarified that “simple assault” retains its common law definition in the context" }, { "docid": "11156415", "title": "", "text": "the Second Circuit recognized that the undefined term “simple assault” also appears in 18 U.S.C. § 113, “which has been held to ‘embrace the common law meaning of that term.’ ” Chesta-ro, 197 F.3d at 605 (quoting United States v. Stewart, 568 F.2d 501, 504 (6th Cir. 1978)); see also United States v. Estrada-Fernandez, 150 F.3d 491, 494 n. 1 (5th Cir.1998); United States v. Juvenile Male, 930 F.2d 727, 728 (9th Cir.1991). Applying case law interpreting § 113 to similar language in § 111, the Chestaro Court found that “simple assault” is a crime “committed by either a willful attempt to inflict injury upon the person of another, or by a threat to inflict injury upon the person of another which, when coupled with an apparent present ability, causes a reasonable apprehension of immediate bodily harm.” Id. at 605 (quoting United States v. Johnson, 637 F.2d 1224, 1242 n. 26 (9th Cir. 1980)). Expanding further upon this definition, the Second Circuit agreed with the government’s position in that case: [F]or practical purposes § 111 creates three distinct categories of conduct: (1) simple assault, which, in accord with the common-law definition, does not involve touching-, (2) “all other cases,” meaning assault that does involve contact but does not result in bodily injury or involve a weapon; and (3) assaults resulting in bodily injury or involving a weapon. We think that this is a reasonable construction of the statute, and one that gives effect to every part of it. Chestaro, 197 F.3d at 606 (emphasis added). The Fifth Circuit recently accepted this definition in United States v. Ramirez, 233 F.3d 318 (5th Cir.2000) (“ ‘[A]ll other cases’ refers to those assaults contemplated by the statute which do involve physical contact, but do not involve a deadly weapon or bodily injury.”). Under the Chestaro scheme, a defendant whose conduct did not involve actual contact, a weapon, or bodily injury could be convicted only of “simple assault” within the structure of § 111. The government contends that the findings in Chestaro and Ramirez, arguably dicta, were incorrect. As did the District Court, the" }, { "docid": "15260970", "title": "", "text": "government; it is a crime “committed by either a willful attempt to inflict injury upon the person of another, or by a threat to inflict injury upon the person of another which, when coupled with an apparent present ability, causes a reasonable apprehension of immediate bodily harm.” United States v. Johnson, 637 F.2d 1224, 1242 n. 26 (9th Cir.1980) (internal quotation marks and citation omitted). Because Congress was silent as to the meaning of “simple assault” when it adopted the 1994 amendments to § 111, it may safely be assumed, as Ches-taro concedes, that Congress intended to adopt the term as used in § 113, which in turn has been construed, appropriately in our view, to incorporate the common-law definition. Chestaro argues in his brief that incorporating the common-law definition of simple assault does not save the statute, however, because the common-law definition of simple assault is ambiguous and still does not provide a principled way to distinguish between “simple assault” and “all other cases” of non-injurious forcible conduct. He contends that § 113 does not suffer from the same constitutional infirmity because, unlike § 111, “it does not have a vague and ambiguous ‘all-other-eases’ clause,” but instead explicitly distinguishes between “[sjimple assault” and cases involving “[a]ssault by striking, beating, or wounding.” 18 U.S.C. § 113(a)(4), (5). The district court accepted the government’s argument, repeated on appeal, that for practical purposes § 111 creates three distinct categories of conduct: (1) simple assault, which, in accord with the common-law definition, does not involve touching; (2) “all other cases,” meaning assault that does involve contact but does not result in bodily injury or involve a weapon; and (3) assaults resulting in bodily injury or involving a weapon. We think that this is a reasonable construction of the statute, and one that gives effect to every part of it. See Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253, 112 S.Ct. 1146, 117 L.Edüd 391 (1992) (noting that “courts should disfavor interpretations that render language superfluous”). Unlike the statute in Evans, § 111 does not invite the court to speculate as to what" }, { "docid": "4265118", "title": "", "text": "L.Ed.2d 225 (1994)). We also pointed out that the term “simple assault” appears elsewhere in the U.S.Code — in 18 U.S.C. § 113 — and that it had “been held to ‘embrace the common law meaning’ ” in that context. Chestaro, 197 F.3d at 605 (quoting United States v. Stewart, 568 F.2d 501, 504 (6th Cir.1978)). We therefore held that “simple assault,” as used in Section 111(a), incorporated the established common law definition of the phrase: a crime, not involving touching, “committed by either a willful attempt to inflict injury upon the person of another, or by a threat to inflict injury upon the person of another which, when coupled with an apparent present ability, causes a reasonable apprehension of immediate bodily harm.” Chestaro, 197 F.3d at 605, 606(internal quotation marks omitted); see also United States v. Vallery, 437 F.3d 626, 631 (7th Cir.2006) (“Under the common law, physical contact is the line of demarcation between simple assault and battery.”). Following Chestaro, we clarified that “simple assault” retains its common law definition in the context of the current version of Section 111(a). See United States v. Hertular, 562 F.3d 433, 440 (2d Cir.2009). Thus, for a defendant to be guilty of the misdemeanor of resisting arrest under Section 111(a), he necessarily must have committed common law simple assault. See id. We recognize that there is disagreement among the federal courts of appeals in interpreting Section lll(a)’s use of “simple assault.” The main problem, as explained by the Ninth Circuit, is that Section 111(a) “appears to prohibit six different types of actions” — assaulting, resisting, opposing, impeding, intimidating and interfering— “only one of which is ‘assault,’ but then it draws the line between misdemeanors and felonies solely by referencing the crime of assault.” United States v. Chapman, 528 F.3d 1215, 1218-19 (9th Cir.2008). “Therefore, it is unclear whether the statute prohibits acts of resistance, opposition, impediment, intimidation, or interference that do not also involve an underlying assault.” Id. at 1219. Several of our sister circuits have taken the same approach as, or similar approaches to, this Court— namely, requiring some form" }, { "docid": "23394462", "title": "", "text": "required proof that the alleged threat would objectively inspire fear of pain, bodily harm, or death that is likely to be inflicted immediately. See United States v. Walker, 835 F.2d at 987. Those core principles still inhered in the statute after its 1994 amendment, which, in relevant part, used the term “simple assault” to classify a misdemeanor violation. 18 U.S.C. § 111 (2003). As we noted in United States v. Chestaro, 197 F.3d 600 (2d Cir.1999), that term incorporated its common-law definition, which included a “threat to inflict injury upon the person of another which, when coupled with an apparent present ability, causes a reasonable apprehension of immediate bodily harm.” Id. at 605 (internal quotation marks omitted); see also United States v. Delis, 558 F.3d 177 (2d Cir.2009) (discussing common-law meaning of assault). Thus, in United States v. Temple, 447 F.3d 130, 136, 139 (2d Cir.2006), we applied Walker in reviewing a sufficiency challenge to a § 111 misdemeanor conviction. In sum, our precedents — from Bamberger through Temple — endorse the principle that, for a threat to qualify as a § 111(a) misdemean- or offense, the government must prove that the defendant instilled (1) a reasonable apprehension of bodily harm (2) likely to be inflicted immediately. In its appellate brief, the government devotes considerable effort to demonstrating that Hertular’s statements to Agents Kelly and Williams satisfy the first prong of this test, a point that defendant does not — and could not — dispute. The trial evidence would certainly permit a reasonable jury to find that Hertular’s threats were real and that he had the ability to put them into effect. Thus, the threats could instill an objectively reasonable fear of pain, bodily harm, or death in any United States official stationed in Belize who heard them. Indeed, to the extent subjective responses can be relevant to objective assessments, the significant protective actions taken by United States authorities in Belize in response to Hertular’s charged threats support this conclusion. See United States v. Walker, 835 F.2d at 987 (observing that “the victim’s subjective state of mind is not irrelevant" }, { "docid": "23310554", "title": "", "text": "think that this legislative history undermines our conclusion. Instead, we think it likely that, when the drafters of § 16 mentioned simple assault as an exemplary crime of violence, they had in mind traditional common-law simple assault, defined as a crime \"committed by either a willful attempt to inflict injury upon the person of another, or by a threat to inflict injury upon the person of another which, when coupled with an apparent present ability, causes a reasonable apprehension of immediate bodily harm.” United States v. McCulligan, 256 F.3d 97, 103 (3d Cir.2001) (quoting United States v. Chestaro, 197 F.3d 600, 605 (2d Cir.1999)). The common law thus required ‘'willfulness,” i.e., intent, in order to find a defendant guilty of simple assault. It is entirely plausible that this definition might have been Congress’s referent in discussing § 16(a). Indeed, we have held that the term \"simple assault” used in the federal assault statute, 18 U.S.C. § 111, was meant to “equate[] with traditional common-law assault.” McCulligan, 256 F.3d at 104. If the legislative history cited above means only that Congress intended to include common-law simple assault as a crime of .violence, then we cannot infer that it intended to include Pennsylvania Simple assault, which does not require willful conduct. The fact that some states have a broader definition of simple assault does not mean that Congress wanted to sweep all crimes so denominated into the category of aggravated felonies. Indeed, it cannot be true that any crime called \"simple assault” by any state constitutes a crime of violence under § 16(a). The statute at issue in this case affords a clear example. As described above, Pennsylvania defines simple assault to include recklessly causing bodily injury. 18 Pa. Cons.Stat. § 2701(a)(1). But it also classifies as simple assault \"negligently causing] bodily injury to another with a deadly weapon.” • Id. § 2701(a)(2). The Supreme Court has held that negligence offenses are not crimes of violence under § 16. Leocal, 125 S.Ct. at 382. The mere labeling of negligent conduct as \"simple assault” does not ipso facto transform it into an aggravated," }, { "docid": "11159367", "title": "", "text": "more narrow common law definition of simple assault applies to section 111. See United States v. Chestaro, 197 F.3d 600, 605-06 (2d Cir.1999). We think that this is the better view. At common law, simple assault is defined as “a willful attempt to inflict injury upon the person of another, or ... a threat to inflict injury upon the person of another which, when coupled with an apparent present ability, causes a reasonable apprehension of immediate bodily harm.” Id. at 605 (internal quotation omitted); see also United States v. LeCompte, 108 F.3d 948 (8th Cir.1997). A forcible assault would therefore have to be something more, such as a willful attempt or threat to inflict serious bodily injury, coupled with an apparent present ability, which causes the intended victim a reasonable apprehension of immediate serious bodily harm or death. Cf. Chambers, 195 F.3d at 277 (“The element of force necessary for a [forcible assault] conviction under [section 111] may be shown by such a threat or display of physical aggression toward the officer as to inspire fear of pain, bodily harm, or death.”) (internal quotation and citation omitted). Fallen certainly threatened serious bodily injury and, by his words and actions, gave the agents reasonable cause to fear such injury or death. Thus, the fact that Fallen never made physical contact with the agents does not lessen the degree of the assault. That Fallen did not “display” a weapon so that the agents could see it is of no moment, as Fallen’s “present apparent ability” to harm the agents was established by his repeated assertion that he had a gun and was willing to use it. While we can find no case in this circuit addressing whether the victim of a forcible assault must actually see the weapon with which he is threatened, we are guided by the reasoning set forth in United States v. Crouthers, 669 F.2d 635 (10th Cir.1982). Crouthers and his confederate, Garvin Trimm, conspired to use Robert Salski, a Wells Fargo employee, to rob an automatic bank teller facility. Crouthers, an acquaintance of Salski’s, masterminded the robbery plan." }, { "docid": "23394461", "title": "", "text": "U.S. 671, 679, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975); United States v. Walker, 835 F.2d 983, 987 (2d Cir.1987) (noting § 111 purpose “to deter harm to certain federal officials and to deter interference with their law enforcement activities”); United States v. Sommerstedt, 752 F.2d 1494, 1497 (9th Cir.1985) (“The goal of Congress in enacting [§ 111] was to give maximum protection to federal officers.” (internal quotation marks omitted)). Nevertheless, in United States v. Bamberger, this court recognized, in accordance with general principles of statutory construction, that “[t]he word ‘forcibly’ in section 111” necessarily “limitfed] the proscribed acts to fewer than would fit the definition of the unmodified verbs alone.” 452 F.2d 696, 699 (2d Cir.1971). In Bamberger, we declined to construe the statute’s force element so narrowly as to require the actual use of physical force to support a § 111 conviction. We held that threats of force could also support a § 111 conviction in certain circumstances. See id. For a threat to satisfy the force element of § 111, however, we required proof that the alleged threat would objectively inspire fear of pain, bodily harm, or death that is likely to be inflicted immediately. See United States v. Walker, 835 F.2d at 987. Those core principles still inhered in the statute after its 1994 amendment, which, in relevant part, used the term “simple assault” to classify a misdemeanor violation. 18 U.S.C. § 111 (2003). As we noted in United States v. Chestaro, 197 F.3d 600 (2d Cir.1999), that term incorporated its common-law definition, which included a “threat to inflict injury upon the person of another which, when coupled with an apparent present ability, causes a reasonable apprehension of immediate bodily harm.” Id. at 605 (internal quotation marks omitted); see also United States v. Delis, 558 F.3d 177 (2d Cir.2009) (discussing common-law meaning of assault). Thus, in United States v. Temple, 447 F.3d 130, 136, 139 (2d Cir.2006), we applied Walker in reviewing a sufficiency challenge to a § 111 misdemeanor conviction. In sum, our precedents — from Bamberger through Temple — endorse the principle that, for" }, { "docid": "6295827", "title": "", "text": "is not defined by the statute, that is our starting point. “[WJhere a federal criminal statute uses a common-law term of established meaning without otherwise defining it, the general practice is to give that term its common-law meaning.” United States v. Turley, 352 U.S. 407, 411, 77 S.Ct. 397, 1 L.Ed.2d 430 (1957) (citations omitted); United States v. Perez, 43 F.3d 1131, 1137 (7th Cir.1994) (citations omitted). There is no dispute that “simple assault” is a crime “committed by either a willful attempt to inflict injury upon the person of another, or by a threat to inflict injury upon the person of another which, when coupled with an apparent present ability, causes a reasonable apprehension of immediate bodily harm.” Chestaro, 197 F.3d at 605 (quoting United States v. Johnson, 637 F.2d 1224, 1242 n. 26 (9th Cir.1980)); accord United States v. Ramirez, 233 F.3d 318, 321-22 (5th Cir.2000), overruling on other grounds recognized by United States v. Longoria, 298 F.3d 367, 372 n. 6 (5th Cir.2002). Under the common law, physical contact is the line of demarcation between simple assault and battery. Wayne R. LaFave, Substantive Criminal Law § 16.1(a), (2d ed.2003); Ramirez, 233 F.3d at 321-22 (“[A]t common law ‘simple assault’ did not involve any physical contact.'”); accord Chestaro, 197 F.3d at 606 (agreeing with trial court’s construction that “simple assault, which in accord with its common-law definition, does not involve touching”). Even though strict adherence to the common-law definition of simple assault requires a finding that physical contact is an element of “all other assaults” under § 111, McCulligan, 256 F.3d at 104; Ramirez, 233 F.3d at 322; Chestaro, 197 F.3d at 606, some circuits have broadened its definition by looking to 18 U.S.C. § 113, a generalized assault statute for maritime and federal territorial jurisdiction containing a simple assault provision, Hathaway, 318 F.3d at 1008; Yates, 304 F.3d at 822, or the Model Penal Code, United States v. Duran, 96 F.3d 1495, 1509 (D.C.Cir.1996). The government cites to the circuits which departed from the common law to support its argument that physical contact is not necessary for" }, { "docid": "38527", "title": "", "text": "traditionally reserved for the jury and that goes to the elements of the crime. See id. at 239-40, 119 S.Ct. 1215. Our holding essentially aligns us with our sister circuits that have considered this question post-Jones. See Arrington, 309 F.3d at 44-45; Yates, 304 F.3d at 823; Campbell, 259 F.3d at 298; McCulligan, 256 F.3d at 102; Chestaro, 197 F.3d at 608; Nunez, 180 F.3d at 233. B. The Definition of “Simple Assault” Under § 111(a) The statute itself offers little guidance on the precise contours of the three separate offenses created by § 111. In fact, because § 111 does not define “simple assault,” ambiguity exists about what differentiates “simple assault” from “all other cases” assault. As this distinction is critical here, we now proceed to differentiate the two types of assault under § 111(a). Congress added the distinction of “simple assault” and “all other cases” assault to § 111 in 1994. See Violent Crime Control and Law Enforcement Act of 1994, P.L. 103-322, tit. XXXII, § 320101(a)(1). Prior to this addition, Congress used the phrase “simple assault” in only one other criminal statute, 18 U.S.C. § 113 (assaults within maritime and territorial jurisdiction). After observing that neither § 111 nor § 113 define “assault,” we have noted that “where a federal criminal statute uses a common-law term of established meaning without otherwise defining it, the general practice is to give that term its common-law meaning.” United States v. Gauvin, 173 F.3d 798, 802 (10th Cir.1999) (quoting United States v. Turley, 352 U.S. 407, 411, 77 S.Ct. 397, 1 L.Ed.2d 430 (1957)). Applying this practice, we arrived at a definition of assault for use in § 111 and § 113 as either an attempted battery or as placing another in reasonable apprehension of immediate bodily harm. Id.; see also United States v. Calderon, 655 F.2d 1037, 1038 (10th Cir.1981) (construing 18 U.S.C. § 351 and relying on the definition of “assault” derived for § 113). Specifically addressing § 113, we have held that “simple assault” “is committed by either a willful attempt to inflict injury upon the person of" } ]

[ { "docid": "23190527", "title": "", "text": "asserting that it “typically does not have the same motive to cross-examine hostile witnesses in the grand jury that it has to cross-examine them at trial.” Brief for United States 11. This is so, the Gov ernment maintains, because (1) cross-examining the witness might indirectly undermine the secrecy of the grand jury proceedings, (2) the Government might decide to discredit the witness through means other than cross-examination, and (3) the issues before the grand jury are typically quite different from those at trial. See id., at 11-14; Reply Brief for United States 9-12. In my view, the first two reasons— even assuming that they are true — do not justify holding that the Government lacks a “similar motive” in the two proceedings. And although the third reason could justify the conclusion that the Government’s motives are not “similar,” it is not present on the facts of this case. Even if one does not completely agree with Wigmore’s assertion that cross-examination is “beyond any doubt the greatest legal engine ever invented for the discovery of truth,” one must admit that in the Anglo-American legal system cross-examination is the principal means of undermining the credibility of a witness whose testimony is false or inaccurate. For that reason, a party has a motive to cross-examine any witness who, in her estimation, is giving false or inaccurate testimony about a fact that is material to the legal question at issue in the proceeding. Of course, the party might decide — for tactical reasons or otherwise — not to engage in a rigorous cross-examination, or even in any cross-examination at all. In such a case, however, I do not believe that it is accurate to say that the party lacked a similar motive to cross-examine the witness; instead, it is more accurate to say that the party had a similar motive to cross-examine the witness (i e., to undermine the false or misleading testimony) but chose not to act on that motive. Although the Rules of Evidence-allow a party to make that choice about whether to engage in cross-examination, they also provide that she must" } ]

[ { "docid": "5725046", "title": "", "text": "that the jury could use the answers to evaluate his credibility. The sanction was a measured means to serve an important purpose, especially in light of Williams’ opportunity the next morning to answer the questions and have the sanction withdrawn. Whether a witness is telling the truth or lying is as important as what the witness says, and there is no better way than cross-examination under oath to help a jury decide whether it is being lied to: The belief that no safeguard for testing the value of human statements is comparable to that furnished by cross-examination, and the conviction that no statement (unless by special exception) should be used as testimony until it has been probed and sublimated by that test, has found increasing strength in lengthening experience. Not even the abuses, the mishandlings, and the puerilities which are so often found associated with cross-examination have availed to nullify its value. It may be that in more than one sense it takes the place in our system which torture occupied in the medieval system of the civilians. Nevertheless, it is beyond any doubt the greatest legal engine ever invented for the discovery of truth. However difficult it may be for the layman, the scientist, or the foreign jurist to appreciate this its wonderful power, there has probably never been a moment’s doubt upon this point in the mind of a lawyer of experience. V Wigmore on Evidence § 1367 (Chadbourne rev. ed.1974). A person’s story is not much use to a jury if the jurors are denied the information they need to evaluate how likely it is that the story is true. Williams told a story that could have been true, that the woman who claimed to be his victim had approached him to buy marijuana, and had traded cash, sex and her ATM card for drugs. Was it true? That Williams was the longtime repeat felon he was greatly increases the probability that his story was a flat lie from start to finish. Without this information, some jurors would probably be skeptical of Williams anyway — there is" }, { "docid": "3825246", "title": "", "text": "the United States Constitution states: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” Of all the rights covered by the Confrontation Clause, the right to cross-examine witnesses is perhaps the most important. In its earliest decision interpreting the Confrontation Clause, the Supreme Court wrote that cross-examination gives the accused an opportunity to “test[] the recollection and sift[] the conscience of the witness_” Mattox v. United States, 156 U.S. 237, 242, 15 S.Ct. 337, 339, 39 L.Ed. 409 (1895). Twenty years ago, the Court called cross-examination the “ ‘greatest legal engine ever invented for the discovery of truth.’ ” California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489 (1970) (quoting 5 J. Wigmore, Evidence § 1367 (3d ed. 1940)). Most recently, the Court reiterated this point: “The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.” Maryland v. Craig, — U.S. -, 110 S.Ct. 3157, 3163, 111 L.Ed.2d 666 (1990). The right to cross-examine witnesses is especially critical when the only evidence against an accused is eyewitness identification. We have noted on several occasions the potential unreliability of convictions obtained on the basis of such evidence. In Jackson v. Fogg, 589 F.2d 108, 112 (2d Cir.1978), a case involving a suggestive police lineup, we stated: Centuries of experience in the administration of criminal justice have shown that convictions based solely on testimony that identifies a defendant previously unknown to the witness is highly suspect. Of all the various kinds of evidence it is the least reliable, especially where unsupported by corroborating evidence. We also addressed this concern in Kampshoff v. Smith, 698 F.2d 581, 585 (2d Cir.1983), where we wrote: There can be no reasonable doubt that inaccurate eyewitness testimony may be one of the most prejudicial features of a criminal trial.... [Wjhile juries may be led by their experience to believe their eyes, and, by inference, what" }, { "docid": "8362961", "title": "", "text": "found at Fed.R.Evid. 1101(d)(3) encompasses this kind of hearing. The argument appears plainly wrong. It seems clear that the preliminary examinations referred to in Fed.R.Evid. 1101(d)(3) are those provided for in Fed.R.Crim.P. 5(c). See Notes of Advisory Committee on Proposed Rules to 1101(d). That provision simply has no application to the instant matter. . In Long the circuit court describes the hearing held in the district court as one at which a federal agent testified relative to the purchase of the plane in issue with the profits of a drug ring. In addition the agent emphasized that the defendant had no legitimate income during the period of four years preceding the case. The court then held “In the instant proceeding, the agent’s testimony is enough to sustain the restraining order and the performance bond.” United States v. Long, 654 F.2d at 915. . I recognize that a reasonable policy argument can be made that there is no need to apply hearsay rules in this context. See United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), a case prior to the adoption of the Federal Rules of Evidence, which permitted reliance on hearsay in a suppression hearing. That holding was of course embodied as an exception to the application of the rules upon their adoption. Fed.R.Evid. 1101(d)(1). I personally do not subscribe tor^ that view. Permitting reliance on hearsay, de- 1 prives the adverse party of meaningful cross- j examination “the greatest legal engine ever in- j vented for the discovery of truth.” V Wigmore j on Evidence § 1367, Chadbourn Revision j (1974). As Wigmore has also said “The theory j of the hearsay rule is that the many possible | deficiencies, suppressions, sources of error and j untrustworthiness, which lie underneath the j bare untested assertion of a witness, may be j best brought to light and exposed by the test of cross-examination ... the hearsay rule . .. signifies a rule rejecting assertions, ... which have not been in some way subjected to the test of cross-examination.” (Emphasis in original) Wigmore, supra §" }, { "docid": "22406223", "title": "", "text": "truth of those witnesses’ testimony by cross-examination. Greene v. McElroy, 360 U.S. 474, 496, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959); see In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955); In re Oliver, 333 U. S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1941); Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931); Kirby v. United States, 174 U.S. 47, 19 S.Ct. 574, 43 L.Ed. 890 (1898). The importance of cross-examination in our jurisprudence has been well stated by Professor Wigmore: “It is beyond any doubt the greatest legal engine ever invented for the discovery of truth. However difficult it may be for the layman, the scientist, or the foreign jurist to appreciate this, its wonderful power, there has probably never been a moment’s doubt upon this in the mind of a lawyer of experience.” (5 Wigmore, Evidence § 1367 (3d ed. 1940)) Since the right to cross-examine is guaranteed by the Constitution, a federal conviction will be reversed if the cross-examination of government witnesses has been unreasonably limited. E. g., Alford v. United States, supra; United States v. Masino, 2 Cir. 1960, 275 F.2d 129; United States v. Lester, 2 Cir. 1957, 248 F.2d 239. However, reversal need not result from every limitation of permissible cross-examination and a witness’ testimony may, in some cases, be used against a defendant, even though the witness invokes his privilege against self-incrimination during cross-examination. In determining whether the testimony of a witness who invokes the privilege against self-incrimination during cross-examination may be used against the defendant, a distinction must be drawn between cases in which the assertion of the privilege merely precludes inquiry into collateral matters which bear only on the credibility of the witness and those cases in which the assertion of the privilege prevents inquiry into matters about which the witness testified on direct examination. Where the privilege has been invoked as to purely collateral matters, there is little danger of prejudice to the defendant and, therefore, the witness’s testimony may be used against him. United States v. Kravitz, 3 Cir." }, { "docid": "22071664", "title": "", "text": "See United States v. DiLapi, 651 F. 2d, at 149-151 (Mishler, J., concurring) (emphasis in original): “[W]e must also account for the function of cross-examination in the trial process in construing the Sixth Amendment guarantee of counsel. “ ‘The age-old tool for ferreting out truth in the trial process is the right to cross-examination. “For two centuries past, the policy of the Anglo-American system of evidence has been to regard the necessity of testing by cross-examination as a vital feature of the law.’” 5 Wigmore, Evidence § 1367 (Chadbourn rev. 1974). The importance of cross-examination to the English judicial system, and its continuing importance since the inception of our judicial system in testing the facts offered by the defendant on direct, . . . suggests that the right to assistance of counsel did not include the right to have counsel’s advice on cross-examination. “The Court has consistently acknowledged the vital role of cross-examination in the search for truth. It has recognized that the defendant’s decision to take the stand, and to testify on his own behalf, places into question his credibility as a witness and that the prosecution has the right to test his credibility on cross-examination. . . . Once the defendant places himself at the very heart of the trial process, it only comports with basic fairness that the story presented on direct is measured for its accuracy and completeness by uninfluenced testimony on cross-examination.” Cf. 5 J. Wigmore, Evidence § 1367 (J. Chadbourn rev. 1974) (calling cross-examination “the greatest legal engine ever invented for the discovery of truth”); 4 J. Weinstein, Evidence ¶800[01] (1988) (cross-examination, a “‘vital feature’ of the Anglo-American system,” “‘sheds light on the witness’ perception, memory and narration,’ ” and “can expose inconsistencies, incompletenesses, and inaccuracies in his testimony”). Alternatively, the judge may permit consultation between counsel and defendant during such a recess, but forbid discussion of ongoing testimony. See People v. Stroner, 104 Ill. App. 3d, at 5-6, 432 N. E. 2d, at 351 (no violation of right to counsel when judge barred defendant from discussing testimony, but permitted other contact with attorney," }, { "docid": "22071663", "title": "", "text": "716, 720 (CA4 1960) (“[0]r-dinarily, when a judge exercises his discretion to exclude witnesses from the courtroom, it would seem proper for him to take the further step of making the exclusion effective to accomplish the desired result of preventing the witnesses from comparing the testimony they are about to give. If witnesses are excluded but not cautioned against communicating during the trial, the benefit of the exclusion may be largely destroyed”), aff’d in part and set aside in part on other grounds, 365 U. S. 551 (1961). See, e. g., 6 J. Wigmore, Evidence §§1837-1838 (J. Chadbourn rev. 1976 and Supp. 1988); Fed. Rule of Evid. 615, “Exclusion of Witnesses.” See U. S. Const., Amdt. 6 (“In all criminal prosecutions, the accused shall enjoy the right. . . to be confronted with the witnesses against him”); see also, e. g., Coy v. Iowa, 487 U. S. 1012, 1016 (1988) (“We have never doubted . . . that the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact”). See United States v. DiLapi, 651 F. 2d, at 149-151 (Mishler, J., concurring) (emphasis in original): “[W]e must also account for the function of cross-examination in the trial process in construing the Sixth Amendment guarantee of counsel. “ ‘The age-old tool for ferreting out truth in the trial process is the right to cross-examination. “For two centuries past, the policy of the Anglo-American system of evidence has been to regard the necessity of testing by cross-examination as a vital feature of the law.’” 5 Wigmore, Evidence § 1367 (Chadbourn rev. 1974). The importance of cross-examination to the English judicial system, and its continuing importance since the inception of our judicial system in testing the facts offered by the defendant on direct, . . . suggests that the right to assistance of counsel did not include the right to have counsel’s advice on cross-examination. “The Court has consistently acknowledged the vital role of cross-examination in the search for truth. It has recognized that the defendant’s decision to take the stand, and to testify on his own" }, { "docid": "7408627", "title": "", "text": "Cafeteria Workers, supra, is not contrary. It held that in certain circumstances the government need not provide notice and hearing before barring for security reasons an employee, who had no contract, from a concession which her employer operated on a sensitive military installation. Although this holding circumscribed the form of process due an employee in these circumstances, the majority implicitly assumed that procedural due process rights did at least in theory attach. Id., 367 U.S. at 899-900, 81 S.Ct. 1743 (Brennan, J., dissenting) . See infra pp. 323-325. . Indeed, we were advised in oral argument that the government is the major employer in Cumberland County, plaintiffs’ community of residence. Hence, disqualification from ASCS may effectively foreclose a significant percentage of the job opportunities available in their community. . For two centuries past, the policy of the Anglo-American system of Evidence has been to regard the necessity of cross-examination as a vital feature of the law. The belief that no safeguard for testing the value of human statements is comparable to that furnished by cross-examination, and the conviction that no statement (unless by special exception) should be used as testimony until it has been probed and sublimated by that test, has found increasing strength in lengthening experience. 5 Wigmore on Evidence (3d ed. 1940) § 1367. Wigmore heralds cross-examination as the “greatest legal engine ever invented for the discovery of truth.” Ibid. . The Court did not reach the constitutional issue in Greene, but held only that neither the Executive nor Congress had authorized the Department of Defense to revoke the security clearance of an aeronautical engineer employed by a private firm at a private plant without affording him the procedural safeguards of confrontation and cross-examination. The Court employed the quoted language to explain why it would not lightly find such authorization. . In their concurring opinion, Justices Brennan and Marshall rephrased the test: “unless it is specifically found that the witness would therefore be exposed to a significant risk of harm.” 408 U.S. at 491, 92 S.Ct. at 2605. . See Willner v. Committee on Character & Fitness, 373" }, { "docid": "6784264", "title": "", "text": "or through counsel. Presumably, the purpose of that limitation was to spare J.C. the experience of being subject to cross-examination. While protection of victims of sexual assault from unnecessary harassment is a laudable goal, the elimination of such a basip protection for the rights of the accused raises profound concerns. In the famous words of John Henry Wigmore, cross-examination is “beyond any doubt the greatest legal engine ever invented for the discovery of truth.” 3 Wigmore, Evidence § 1367, p. 27 (2d ed. 1923). The ability to cross-examine is most critical when the issue is the credibility of the accuser. See Donohue v. Baker, 976 F.Supp. 136, 147 (N.D.N.Y.1997) (“[I]f a case is essentially one of credibility, the ‘cross-examination of witnesses might [be] essential to a fair hearing.’ ”) (quoting Winnick v. Manning, 460 F.2d 645, 550 (2d Cir.1972)). Here, there were essentially no third-party witnesses to any of the events in question, and there does not appear to have been any contemporary corroborating evidence. The entire investigation thus turned on the credibility of the accuser and the accused. Under the circumstances, the lack of an opportunity for cross-examination may have had a ,very substantial effect on the fairness of the proceeding.' (4)No Right to Cross-Examine Witnesses As noted, Brandéis prohibited John from confronting and cross-examining J.C. Brandéis, however, likewise did not permit the cross-examination of other witnesses, who presumably would not be traumatized by the experience. While there were no actual third-party witnesses to any of - the alleged acts of sexual misconduct, the Special Examiner nonetheless interviewed, and relied to some degree, on the testimony of witnesses other than J.C. John was not provided an opportunity to cross-examine any of those witnesses, or indeed to be advised of the substance of their testimony. (5)No Right to Examine Evidence or Witness Statements It is unclear whether J.C. ever provided any corroborating evidence (such as, for example, contemporaneous texts or emails) to the Special Examiner. If he did, Brandéis did not give John access to it, and there was nothing in the 2013-14 Handbook that permitted him such access. The" }, { "docid": "17513514", "title": "", "text": "Judge Gewin wrote for the Court that “when rational substitutes for the benefits of confrontation actually exist, there is no reason to exclude hearsay evidence. Although we express no view as to the constitutional validity of any exception to the confrontation requirement which has not been ruled upon, it is important to point out that generally recognized exceptions to the hearsay rule have developed from a painful process of rationalizing the denial of confrontation.” 5 Cir., 400 F.2d 826 at 830. But the process of rationalization of the denial of cross-examination has as its genesis the substitution of that satisfactory basis for evaluating the truth of the prior statement to which Mr. Justice Stewart referred, which is itself “confrontation.” Thus it is that confrontation is broader than cross-examination. Cross-examination, notes Wigmore in an oft-quoted statement, “is beyond any doubt the greatest legal engine ever invented for the discovery of truth.” V Wigmore, Evidence § 1367, p. 29 (3d ed. 1940). But to hold that it is the only method to discover the truth would create an absolute barrier to the admission of any hearsay evidence. It is obvious that if the framers of the Constitution had desired to protect a right of “cross-examination” rather than “confrontation” the Sixth Amendment would have been drafted to that effect. Under Dutton, the mission of the confrontation clause is to assure that the trier of fact is provided with a satisfactory basis for evaluating the truth of the evidence presented to it, whether the evidence is hearsay or non-hearsay and whether the satisfactory basis is provided by cross-examination or otherwise. The Sixth Amendment is violated where there is no satisfactory basis. Neither the Sixth nor the Fourteenth Amendment is violated when hearsay evidence is admitted in accordance with recognized exceptions to the hearsay rule because the fundamental values and notions which are the foundation for the exception and which permit its introduction as a matter of the law of evidence also satisfy the Sixth Amendment's demand for indicia of reliability. A satisfactory basis for evaluating the truth of the hearsay statement is afforded by" }, { "docid": "22677643", "title": "", "text": "Post, at 1029. Surely that must depend upon the proposition that they are cited for. We have cited the latter two merely to illustrate the meaning of “confrontation,” and both the antiquity and currency of the human feeling that a criminal trial is not just unless one can confront his accusers. The dissent cites Wigmore for the proposition that confrontation “was not a part of the common law’s view of the confrontation requirement.” Ibid. To begin with, Wigmore said no such thing. What he said, precisely, was: “There was never at common law any recognized right to an indispensable thing called confrontation as distinguished from cross-examination. There was a right to cross-examination as indispensable, and that right was involved in and secured by confrontation; it was the same right under different names.” 5 J. Wigmore, Evidence §1397, p. 158 (J. Chadboum rev. 1974) (emphasis in original). He was saying, in other words, not that the right of confrontation (as we are using the term, i. e., in its natural sense) did not exist, but that its purpose was to enable cross-examination. He then continued: “It follows that, if the accused has had the benefit of cross-examination, he has had the very privilege secured to him by the Constitution.” Ibid. Of course, that does not follow at all, any more than it follows that the right to a jury trial can be dispensed with so long as the accused is justly convicted and publicly known to be justly convicted — the purposes of the right to jury trial. Moreover, contrary to what the dissent asserts, Wig-more did mention (inconsistently with his thesis, it would seem), that a secondary purpose of confrontation is to produce “a certain subjective moral effect. . . upon the witness.” Id., §1395, p. 153. Wigmore grudgingly acknowledged that, in what he called “earlier and more emotional periods,” this effect “was supposed (more often than it now is) to be able to unstring the nerves of a false witness,” id., § 1395, p. 153, n. 2; but he asserted, without support, that this effect “does not arise from" }, { "docid": "1516969", "title": "", "text": "long a period of time, if you added it together, would you say that you observed this gentleman, Harrison, in 1967? Mr. O’Sullivan: Now, your Honor— A. 7 minutes, maybe, all together. The Court: All right. Q. Did that 7 minutes give you any particular impression of Mr. Harrison ? A. Well, I wanted to— Q. No. Did it give you any particular impression— Mr. O’Sullivan: Your Honor, I object. The Court: Sustained. A. I wanted to see— The Court: No. Don’t answer, please. The Witness: I’m sorry. The Court: I have sustained the objection. We have had Mr. Hoffman’s testimony respecting the two occasions that we [sic] saw him, one, when he was about 20 feet away, and one when he was about 12 or 15 feet away, when he was at the window. He observed him on one other occasion for about five minutes. Full and fair cross-examination is the cornerstone of the adversary system. As Dean Wigmore has stated, cross-examination is “beyond any doubt the greatest legal engine ever invented for the discovery of truth.” The New York Court of Appeals stated in the famous case of People v. Becker, 210 N.Y. 274, 305, 104 N.E. 396, 407 (1914), quoting from Wigmore: “For two centuries past, the policy of the Anglo-American system of evidence has been to regard the necessity of testing by cross-examination as a vital feature of the law. The belief that no safeguard for testing the value of human statements is comparable to that furnished by cross-examination, and the conviction that no statement (unless by special exception) should be used as testimony until it has been probed and sublimated by that test, has found increasing strength in lengthening experience.” We have recently reemphasized that wide latitude should be allowed in defense cross-examination regarding the credibility of government witnesses. United States v. Wolfson, 437 F.2d 862 (2d Cir. 1970); United States v. Padgent, 432 F.2d 701 (2d Cir. 1970). See also United States v. Masino, 275 F.2d 129, 132-133 (2d Cir. 1960). In Gordon v. United States, 344 U.S. 414, 422-423, 73 S.Ct. 369, 375," }, { "docid": "22840661", "title": "", "text": "the questioned fact occurred so long ago that the testimony of an eye-witness would probably be less trustworthy than a contemporary newspaper account, a federal court, under Rule 43(a), may relax the exclusionary rules to the extent of admitting the newspaper article in evidence. We do not characterize this newspaper as a “business record”, nor as an “ancient document”, nor as any other readily identifiable and happily tagged species of hearsay exception. It is admissible because it is necessary and trustworthy, relevant and material, and its admission is within the trial judge’s exercise of discretion in holding the hearing within reasonable bounds. Judgment is affirmed. . This argument, a familiar one, rests on a misunderstanding of the origin and the nature of the hearsay rule. The rule is not an ancient principle of English law recognized at Runnymode. And, gone is its odor of sanctity. Wigmore is often quoted for the statement that “cross-examination is beyond any doubt the greatest legal engine ever invented for the discovery of the truth”. 5 Wigmore § 1367 (3rd ed.). In over 1200 pages devoted to the hearsay rule, however, he makes it very clear that: “[T]he rule aims to insist on testing all statements by cross-examination, if they can he. * * No one could defend a rule which pronounced that all statements thus untested are worthless; for all historical truth is based on uncross-examined assertions; and every day’s experience of life gives denial to such an exaggeration. What the Hearsay Rule implies — and with profound verity — is that all testimonial assertions ought to he tested by cross-examination, as the best attainable measure; and it should not be burdened with the pedantic implication that they must be rejected as worthless if the test is unavailable.” 1 Wigmore § 8c. In this connection see Ealknor, The Hearsay Rule and Its Exceptions, 2 UCLA L.Rev. 43 (1954). In The Introductory Note to Chapter VI, Hearsay Evidence, American Law Institute, Model Code of Evidence (1942), Edmund M. Morgan, Reporter, it is pointed out that “the hearsay rule is the child of the adversary system”." }, { "docid": "22071665", "title": "", "text": "behalf, places into question his credibility as a witness and that the prosecution has the right to test his credibility on cross-examination. . . . Once the defendant places himself at the very heart of the trial process, it only comports with basic fairness that the story presented on direct is measured for its accuracy and completeness by uninfluenced testimony on cross-examination.” Cf. 5 J. Wigmore, Evidence § 1367 (J. Chadbourn rev. 1974) (calling cross-examination “the greatest legal engine ever invented for the discovery of truth”); 4 J. Weinstein, Evidence ¶800[01] (1988) (cross-examination, a “‘vital feature’ of the Anglo-American system,” “‘sheds light on the witness’ perception, memory and narration,’ ” and “can expose inconsistencies, incompletenesses, and inaccuracies in his testimony”). Alternatively, the judge may permit consultation between counsel and defendant during such a recess, but forbid discussion of ongoing testimony. See People v. Stroner, 104 Ill. App. 3d, at 5-6, 432 N. E. 2d, at 351 (no violation of right to counsel when judge barred defendant from discussing testimony, but permitted other contact with attorney, during 30-minute recess while defendant on stand), aff’d in part and rev’d in part on other grounds, 96 Ill. 2d 204, 449 N. E. 2d 1326 (1983). Justice Kennedy, concurring in part. I join Parts I and III of the Court’s opinion and the holding that petitioner was not denied his constitutional right to assistance of counsel. In view of our ruling, it is quite unnecessary to discuss whether prejudice must be shown when the right to counsel is denied. I would not address that issue, and so I decline to join Part II of the Court’s opinion. Justice Marshall, with whom Justice Brennan and Justice Blackmun join, dissenting. In Geders v. United States, 425 U. S. 80 (1976), we held .unanimously that a trial judge’s order barring a defendant from conferring with his attorney during an overnight recess violated the defendant’s Sixth Amendment right to the assistance of counsel. The majority holds today that when a recess is “short,” unlike the “long recess” in Geders, a defendant has no such constitutional right to confer" }, { "docid": "23190532", "title": "", "text": "whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.” “If the government exposes the extent of its knowledge to an individual who, by his willingness to commit penury, has shown himself to be allied with the investigation’s targets, the effect may be to provide information to the targets that can he used to threaten witnesses, destroy evidence, fabricate a defense, or otherwise obstruct the investigation.” Brief for United States 12. 6 J. Wigmore, Evidence §1367, p. 32 (J. Chadbourn rev. 1974). Indeed, the lack of an opportunity to cross-examine the absent declar-ant has been the principal justification for the Anglo-American tradition of excluding hearsay statements. See, e. g., E. Cleary, MeCormick on Evidence §245, p. 728 (3d ed. 1984); 5 Wigmore, §1367, at 32. This concern is diminished, however, when the party against whom the hearsay statement is offered had an opportunity to cross-examine the absent declarant at the time the statement was made. Accordingly, the common law developed an exception to the hearsay rule that permitted the introduction of prior testimony if the opponent had an adequate opportunity to cross-examine the declarant. See, e. g., id., § 1386, at 90. Rule 804(b)(1) codified, with a few changes, that common-law rule. See Advisory Committee’s Notes on Fed. Rule Evid. 804(b)(1), 28 U. S. C. App., pp. 788-789. For example, the party might not want to run the risk of appearing to harass or upset a vulnerable witness — such as a young child or the victim of a terrible crime — with rigorous cross-examination if there are other, less confrontational means of undermining the suspect testimony. As the Advisory Committee explained, the question whether prior testimony should be admitted is, in essence, the question “whether fairness allows imposing, upon the party against whom now offered, the handling of a witness on the earlier occasion.” Id., at 788. When, as in this case, the testimony is offered against the party by whom it was previously offered, the" }, { "docid": "6784263", "title": "", "text": "specific factual conduct alleged to have given rise to the charge. At a minimum, it the failure to provide John with notice of the specific charges against him may have substantially impaired the fairness of the proceeding. (2) No Right to Counsel Brandéis did not permit John to have counsel in connection with the Special Examiner’s investigation, either to participate actively or to render passive advice. Compare Cloud, 720 F.2d at 723 (student permitted to be represented by counsel at university hearing); Walker, 82 F.Supp.3d at 532 (same). The proceeding was not, of course, conducted in a court of law, according to the rules of procedure and evidence. Nonetheless, Brandéis engaged an outside attorney, presumably with years of experience and training, to investigate and prosecute serious charges of sexual assault and other sexual misconduct. But it expected a student, approximately 21 years old, with no legal training or background, to defend himself, alone, against those same charges. (3) No Right to Confront Accuser Brandéis did not permit John to confront or cross-examine J.C., either directly or through counsel. Presumably, the purpose of that limitation was to spare J.C. the experience of being subject to cross-examination. While protection of victims of sexual assault from unnecessary harassment is a laudable goal, the elimination of such a basip protection for the rights of the accused raises profound concerns. In the famous words of John Henry Wigmore, cross-examination is “beyond any doubt the greatest legal engine ever invented for the discovery of truth.” 3 Wigmore, Evidence § 1367, p. 27 (2d ed. 1923). The ability to cross-examine is most critical when the issue is the credibility of the accuser. See Donohue v. Baker, 976 F.Supp. 136, 147 (N.D.N.Y.1997) (“[I]f a case is essentially one of credibility, the ‘cross-examination of witnesses might [be] essential to a fair hearing.’ ”) (quoting Winnick v. Manning, 460 F.2d 645, 550 (2d Cir.1972)). Here, there were essentially no third-party witnesses to any of the events in question, and there does not appear to have been any contemporary corroborating evidence. The entire investigation thus turned on the credibility of the" }, { "docid": "3277136", "title": "", "text": "which the proponent can procure,” and its admission did not serve “the interests of justice.” Not only was there danger of serious error in perception on the part of the young man and the bank customer but Cariola’s testimony purporting to provide the essential link to the appellant was far from being free of doubt and suspicion. As the Supreme Court said in Wade, supra, a criminal defendant’s “most basic right” is that of a “fair trial at which the witnesses against him might be meaningfully cross-examined.” 388 U.S. at 224, 87 S.Ct. at 1930. “For two centuries past, the policy of the Anglo-American system of evidence has been to regard the necessity of testing by cross-examination as a vital feature of the law. The belief that no safeguard for testing the value of human statements is comparable to that furnished by cross-examination, and the conviction that no statement (unless by general exception) should be used as testimony until it has been probed and sublimated by that test, has found increasing strength in lengthening experience. . . . [I]t is beyond doubt the greatest legal engine for the discovery of truth.” 5 Wigmore on Evidence § 1367. No authority supports the application of the 804(b)(5) residual hearsay exception in a case like the present one when serious questions of reliability have been raised in the absence of cross-examination. On the contrary, one circuit has refused to apply the exception because it poses serious constitutional problems. United States v. Yates, 173 U.S.App.D.C. 308, 524 F.2d 1282 (1975). The cases relied on by the majority are readily distinguishable. In United States v. Iaconetti, 540 F.2d 574 (2d Cir. 1976), we found support in the residual hearsay exception for admission of rebuttal testimony by two witnesses (Stern and Goodman) as to statements of a previous witness (Lioi) regarding the defendant Iaconetti’s request for money. But the significant difference is that there the declarants (Stern, Goodman, Lioi, and Iaconetti) were all available for cross-examination and the jury was allowed to resolve a conflict in credibility among witnesses who were present and whose demeanor could" }, { "docid": "16341618", "title": "", "text": "may identify more than one expert on a subject under Rule 26(a)(2) and reserve for later its choice as to which expert to use at trial. Commonwealth Ins. Co. v. Stone Container Corp., No. 99 C 8471, 2002 WL 385559, at *6 (N.D.Ill. Mar. 12, 2002). Compare Rule 403, Federal Rules of Evidence (\"needlessly cumulative” evidence may be excluded). . They were: (1) whether a theory or technique can be, and has been, tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique's operation. Although rejecting \"general acceptance” as the exclusive test for admissibility, the Court noted that it could be an additional factor that might bear on reliability. 509 U.S. at 593-94, 113 S.Ct. 2786. . Whatever one's views about Dean Wig-more’s characterization of cross-examination as \"beyond any doubt, the greatest legal engine ever invented for the discovery of truth,” 5 J. Wigmore, Evidence, § 1367 (Chadbourn Rev.1974), since at least the time of Blackstone, it has been felt that the goal of evidentiary reliability can best be assured by testing the evidence in the \"crucible of cross examination.” Crawford v. Washington, 541 U.S. 36, 61-62, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). . Dr. Aldo Fusaro, of the Cook County Medical Examiner’s Office, performed the autopsy on Mr. Richman. Dr. Bryant performed a second post mortem examination, but it is unclear in what capacity. . According to the plaintiff, Ms. Libman was a court cleric who witnessed the events at issue. All three experts generally chose to discount her testimony. (Motion to Strike, at 10 n. 3). . Plaintiff specifically targets Mr. Bowman’s report as \"conclusory” or \"sketchy” and supplying \"nothing but a bottom line.” (Motion to Strike, at 7). The reports adequately explain the reasons for their ultimate conclusions, and, brevity alone does not result in automatic invalidation of a report. See Abdullahi v. City of Madison, 423 F.3d 763, 771-72 (7th Cir.2005). An expert report need not be a \"primer on why the" }, { "docid": "7191732", "title": "", "text": "us, Bagley was unaware during trial that O’Connor and Mitchell were subject to impeachment for bias based on their remunerative relationship with the government. The government’s failure to disclose this Brady information inhibited Bagley’s ability effectively to cross-examine two important prosecution witnesses. In Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), the Supreme Court held that the denial of the “right of effective cross-examination” was “ ‘constitutional error of the first magnitude’ ” requiring automatic reversal. Id. at 318, 94 S.Ct. at 1111 (emphasis added) (quoting Brookhart v. Janis, 384 U.S. 1, 3, 86 S.Ct. 1245, 1246, 16 L.Ed.2d 314 (1965)); see also United States v. Uramoto, 638 F.2d 84, 87 (9th Cir.1980) (harmless error doctrine “inapplicable” where case involved “[deprivation of the right to a full and robust cross-examination of a paid Government informant”). In fact, effective cross-examination is so important in our legal system that Professor Wigmore described it as “beyond any doubt the greatest legal engine ever invented for the discovery of truth.” 5 J. Wigmore, Evidence in Trials at Common Law § 1367, at. 32 (Chadbourn rev. ed. 1974). Here, the district judge, who presided over the bench trial, concluded beyond a reasonable doubt that disclosure of the ATF agreements would not have affected Bagley’s conviction. We disagree. Standing alone, the government’s failure to produce requested Brady information is a serious due process violation. Hibler, 463 F.2d at 459. In fact, this failure is “seldom, if ever, excusable.” United States v. Agurs, 427 U.S. 97, 106, 96 S.Ct. 2392, 2399, 49 L.Ed.2d 342 (1976). But a failure to disclose requested Brady information that the defendant could use to conduct an effective cross-examination is even more egregious because it threatens the defendant’s right to confront adverse witnesses, and therefore, his right to a fair trial. See Davis, 415 U.S. at 316-19, 94 S.Ct. at 1110-11. For these reasons, we hold that the government’s failure to provide requested Brady information to Bagley so that he could effectively cross-examine two important government witnesses requires an automatic reversal. REVERSED and REMANDED. . Although the prosecution" }, { "docid": "4929020", "title": "", "text": "to the stated subject matter of the witness’ testimony. Cf. CAB v. Hermann, 353 U.S. 322, 77 S.Ct. 804, 1 L.Ed.2d 852 (1957) (per curiam). The court does not have these documents before it, and quite likely it is not possessed of all the facts in the hands of counsel that may prompt them to follow up certain leads in the pursuit of evidence. Moreover, the evi-dentiary weight of the documents is not germane to the relevancy inquiry. “It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Fed.R.Civ.P. 26(b)(1). The documents sought may serve various cross-examination purposes. One document authored by the witness may have use as a prior inconsistent statement; another document not authored by him may confront the witness with evidence contradictory to his testimony. A third may simply suggest avenues of inquiry. Having asserted the comprehensive scope of Cary’s testimony, IBM may not now be heard to complain of plaintiff’s appropriately comprehensive subpoena. II. Need for the Documents The plaintiff’s need for these documents is clear. Issue-oriented discovery between the parties ended on approximately July 1, 1974. A large part of the documents sought by the government, however, are documents generated from January 1, 1974 to date. Cary’s anticipated testimony on events subsequent to 1974 makes it reasonable for the government to be given access to those internal documents of IBM relating to his testimony from which cross-examination may be fashioned. Without these documents, Cary’s cross-examination would hardly resemble “the greatest legal engine ever invented for the discovery of truth.” 5 Wigmore, Evidence § 1367 at 32 (Chad-bourn rev. 1974). An engine without fuel has neither power not effect. III. Overbreadth A document request is unreasonable when “it is out of proportion to the end sought, as when the person served is required to fetch all his books at once to an exploratory investigation whose purposes and limits can be determined only as it proceeds.” McMann v. SEC, 87 F.2d 377, 379 (2d Cir.) (L." }, { "docid": "23190528", "title": "", "text": "one must admit that in the Anglo-American legal system cross-examination is the principal means of undermining the credibility of a witness whose testimony is false or inaccurate. For that reason, a party has a motive to cross-examine any witness who, in her estimation, is giving false or inaccurate testimony about a fact that is material to the legal question at issue in the proceeding. Of course, the party might decide — for tactical reasons or otherwise — not to engage in a rigorous cross-examination, or even in any cross-examination at all. In such a case, however, I do not believe that it is accurate to say that the party lacked a similar motive to cross-examine the witness; instead, it is more accurate to say that the party had a similar motive to cross-examine the witness (i e., to undermine the false or misleading testimony) but chose not to act on that motive. Although the Rules of Evidence-allow a party to make that choice about whether to engage in cross-examination, they also provide that she must accept the consequences of that decision — including the possibility that the testimony might be introduced against her in a subsequent proceeding. Thus neither the fact that the prosecutors might decline to cross-examine a grand jury witness whom they fear will talk to the target of the investigation nor the fact that they might choose to undermine the witness’ credibility other than through rigorous cross-examination alters the fact that they had an opportunity and similar motive to challenge the allegedly false testimony through questioning before the grand jury. Although those might be reasons for declining to take advantage of the opportunity to cross-examine a witness, neither undermines the principal motive for engaging in cross-examination, i. e., to shake the witness’ allegedly false or misleading testimony. Indeed, other courts have found the “opportunity and similar motive” requirement of Rule 804(b)(1) satisfied — and hence the prior testimony admissible in a subsequent trial — in many similar situations. That leaves the Government’s third reason, its contention that it lacks a similar motive to question grand jury wit" } ]

[ { "docid": "22346694", "title": "", "text": "Justice Rehnquist delivered the opinion of the Court. A beeper is a radio transmitter, usually battery operated, which emits periodic signals that can be picked up by a radio receiver. In this case, a beeper was placed in a five-gallon drum containing chloroform purchased by one of respondent’s codefendants. By monitoring the progress of a car carrying the chloroform Minnesota law enforcement agents were able to trace the can of chloroform from its place of purchase in Minneapolis, Minn., to respondent’s secluded cabin near Shell Lake, Wis. The issue presented by the case is whether such use of a beeper violated respondent’s rights secured by the Fourth Amendment to the United States Constitution. I — < Respondent and two codefendants were charged in the United States District Court for the District of Minnesota with conspiracy to manufacture controlled substances, including but not limited to methamphetamine, in violation of 21 U. S. C. §846. One of the codefendants, Darryl Petschen, was tried jointly with respondent; the other codefendant, Tristan Armstrong, pleaded guilty and testified for the Government at trial. Suspicion attached to this trio when the 3M Co., which manufactures chemicals in St. Paul, notified a narcotics investigator for the Minnesota Bureau of Criminal Apprehension that Armstrong, a former 3M employee, had been stealing chemicals which could be used in manufacturing illicit drugs. Visual surveillance of Armstrong revealed that after leaving the employ of 3M Co., he had been purchasing similar chemicals from the Hawkins Chemical Co. in Minneapolis. The Minnesota narcotics officers observed that after Armstrong had made a purchase, he would deliver the chemicals to codefendant Petschen. With the consent of the Hawkins Chemical Co., officers installed a beeper inside a five-gallon container of chloroform, one of the so-called “precursor” chemicals used to manufacture illicit drugs. Hawkins agreed that when Armstrong next purchased chloroform, the chloroform would be placed in this particular container. When Armstrong made the purchase, officers followed the car in which the chloroform had been placed, maintaining contact by using both visual surveillance and a monitor which received the signals sent from the beeper. Armstrong proceeded" } ]

[ { "docid": "2401400", "title": "", "text": "(2013); United States v. Pineda-Moreno, 688 F.3d 1087, 1090-91 (9th Cir.2012) cert denied, — U.S.--, 133 S.Ct. 994, 184 L.Ed.2d 772 (2013). Several district courts have also applied the good faith exception to allow evidence obtained from pre-Jones warrantless GPS searches to stand. See, e.g., United States v. Baez, 878 F.Supp.2d 288, 289 (D.Mass.2012) (“Where, as here, law enforcement officers at the time they act have a good faith basis to rely upon a substantial consensus among precedential courts, suppression of probative evidence is too high a price to pay because of the subsequent supervention of that consensus by the Supreme Court.”); United States v. Leon, 856 F.Supp.2d 1188, 1193 (D.Haw.2012) (as there was no binding precedent authorizing the practice at the time, Davis did not control, but “after examining precedent as of 2009, the court finds that the agents’ conduct in the use of the GPS tracking device was objectively reasonable”); United States v. Oladosu, 887 F.Supp.2d 437, 448 (D.R.I.2012) (evidence would not be excluded where at the time the GPS device was attached to defendant’s vehicle, the Supreme Court had approved the warrant-less use of beeper technology and two circuit courts had extended that rule to GPS devices). Other courts, however, adopted a much stricter rule, finding the precedent at issue must be (1) within the Circuit and (2) specific to the facts at hand. United States v. Katzin, 732 F.3d 187, 210 (3d Cir.2013). Katzin first held that “the police must obtain a warrant prior to attaching a GPS device on a vehicle, thereby undertaking a search that the Supreme Court has compared to ‘a constable’s concealing himself in the target’s coach in order to track its movements.’ ” Id. at 198 (quoting Jones, 132 S.Ct. at 950 n. 3). The Third Circuit then declined to apply the exclusionary rule, finding “Knotts and Karo are both distinguishable given (1) the lack of a physical intrusion in those cases, (2) the placement by police of the beepers inside containers, and (3) the marked technological differences between beepers and GPS trackers.” Id. at 206. Katzin also rejected reliance on" }, { "docid": "11157913", "title": "", "text": "in this case, the officers in Sparks attached a GPS tracking device to a ear used by a suspect in a number of robberies. Id. at 60. Using the GPS data, the officers tracked the car for eleven days, eventually to the scene of a crime. Id. The First Circuit held the Davis exception applied because “[w]hen the police comply with authoritative precedent, only to see the law evolve after the fact, there is nothing to deter; the police cannot modify their conduct to accord with cases not yet decided.” Id. at 63 (citing Davis, 131 S.Ct. at 2428-29). The court in Sparks found that the Supreme Court precedent in Knotts was widely and reasonably understood to stand for the proposition that the Fourth Amendment simply was not implicated by electronic surveillance of public automotive movements, because the latter was merely a more efficient “substitute ... for an activity, namely following a car on a public street, that is unequivocally not a search within the meaning of the amendment.” Id. at 67 (quoting United States v. Garcia, 474 F.3d 994, 996-97 (7th Cir.2007)). First Circuit precedent in United States v. Moore held the trespass issue to be “so insignificant as to be essentially irrelevant for Fourth Amendment purposes.” Id. at 65 (citing United States v. Moore, 562 F.2d 106, 111 (1st Cir.1977) (“[W]e do not find it critical that the beeper placed in the package of chemicals was inserted before title to the chemicals passed to defendants, while the beepers affixed directly to the vehicles were attached without the owners’ permission and hence involved a trespass.”)). Sparks held that because the officers reasonably relied on clear binding precedent in Knotts and Moore, evidence resulting from the warrantless use of the GPS tracking device was admissible under the good faith reliance exception. Sparks, 711 F.3d at 67 (“In sum: at the time of the GPS surveillance in this case, settled, binding precedent in the form of Knotts and Moore authorized the agents’ conduct.”). Similarly, the Ninth Circuit held that evidence resulting from the GPS tracking of a defendant’s vehicle that occurred" }, { "docid": "20848096", "title": "", "text": "this principle, “[w]hat a person knowingly exposes to the public ... is not a subject of Fourth Amendment protection.” Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507,19 L.Ed.2d 576 (1967). It was well-established by 2011 that “one’s expectation of privacy in an automobile and of freedom in its operation are significantly different from the traditional expectation of privacy and freedom in one’s residence.” United States v. Martinez-Fuerte, 428 U.S. 543, 561, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976). In accord with this principle, we recognized in United States v. George, 971 F.2d 1113, 1119 (4th Cir.1992), that “there can be no reasonable expectation of privacy in a vehicle’s exterior.” Moreover, we observed in United States v. Gastiaburo, 16 F.3d 582, 586 (4th Cir.1994), that “it may be reasonable and therefore constitutional to search a movable vehicle without a warrant, even though it would be unreasonable and unconstitutional to conduct a similar search of a home, store, or other fixed piece of property.” Further, we noted in United States v. Beilina, 665 F.2d 1335, 1340 (4th Cir.1981), that “this rule of diminished ex pectation of privacy is particularly appropriate when the automobile is located in the street or in a public area.” Although neither the Supreme Court nor this Court had expressly approved or disapproved of warrantless GPS usage in 2011, the Supreme Court had rejected a Fourth Amendment challenge to law enforcement officers’ use of a beeper, which is the technological forerunner to the GPS. In United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983), officers had placed a beeper in a container that was later filled with chloroform, which they suspected was being used to make illegal drugs. After the chloroform was purchased, one suspect (Petschen) placed the container in his vehicle, and the officers followed the container by using both visual surveillance of the vehicle and a monitor that received signals from the beeper. The officers eventually obtained a search warrant for Knotts’ cabin and premises, which is where the container was delivered, and they discovered a drug-making laboratory. Following" }, { "docid": "2401386", "title": "", "text": "the government; the legal conclusions on which this ruling was based are reviewed de novo.” United States v. Watson, 404 F.3d 163, 166 (2d Cir.2005) (internal quotation marks, alteration and italics omitted). The appellants here contest the denial of their motion to suppress the GPS data and evidence derived from that data, based on the Supreme Court’s decision in United States v. Jones, — U.S. -, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012). All seek to vacate their convictions and remand the case to the district court for a new suppression hearing. I. The state of the law on tracking technology pre-Jones. We start with an examination of the law prior to the decision in Jones, beginning with United States v. Knotts, 460 U.S. 276, 277, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983). In Knotts, the police were investigating a conspiracy to manufacture controlled substances, including methamphetamine. 460 U.S. at 277, 103 S.Ct. 1081. With the permission of the container’s owner, the police placed a beeper inside of a five gallon drum containing chloroform purchased by one of the defendants. When defendant picked up the container, the police followed the defendant’s car by tracking the radio signal emitted by the beeper, and eventually tracked the container to a cabin used by the defendant. Id. at 278-79, 103 S.Ct. 1081. The police then obtained a search warrant for the cabin, based in large part upon the data collected through use of the beeper. Id. at 279, 103 S.Ct. 1081. Defendant sought to suppress the evidence obtained based on the war-rantless monitoring of the beeper. The Supreme Court found no Fourth Amendment violation, stating that “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to' another.” Id. at 281, 103 S.Ct. 1081. The Supreme Court next addressed the issue in United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984), where a beeper was used to track an object inside of a private residence, rather than in a public area. As in Knotts, government agents installed" }, { "docid": "11157914", "title": "", "text": "v. Garcia, 474 F.3d 994, 996-97 (7th Cir.2007)). First Circuit precedent in United States v. Moore held the trespass issue to be “so insignificant as to be essentially irrelevant for Fourth Amendment purposes.” Id. at 65 (citing United States v. Moore, 562 F.2d 106, 111 (1st Cir.1977) (“[W]e do not find it critical that the beeper placed in the package of chemicals was inserted before title to the chemicals passed to defendants, while the beepers affixed directly to the vehicles were attached without the owners’ permission and hence involved a trespass.”)). Sparks held that because the officers reasonably relied on clear binding precedent in Knotts and Moore, evidence resulting from the warrantless use of the GPS tracking device was admissible under the good faith reliance exception. Sparks, 711 F.3d at 67 (“In sum: at the time of the GPS surveillance in this case, settled, binding precedent in the form of Knotts and Moore authorized the agents’ conduct.”). Similarly, the Ninth Circuit held that evidence resulting from the GPS tracking of a defendant’s vehicle that occurred prior to Jones was admissible under the Davis exception. United States v. Pineda-Moreno, 688 F.3d 1087, 1090-91 (9th Cir.2012) cert. denied, — U.S. -, 133 S.Ct. 994, 184 L.Ed.2d 772 (2013) (finding Ninth Circuit previously held in United States v. McIver, 186 F.3d 1119, 1126-27 (9th Cir.1999), that placing an electronic tracking device on a car was “neither a search nor a seizure under the Fourth Amendment”). “Whatever the effect of Jones, then, the critical evidence here is not subject to the exclusionary rule.” Id. at 1091 (citing Davis, 131 S.Ct. at 2423-24). However, the Third Circuit recently found no good faith reliance exception for a warrantless GPS search because there was no clear, binding precedent in the Third Circuit, United States v. Katzin, 732 F.3d 187, 206-8 (3d Cir.2013) reh’g en banc granted, opinion vacated, 12-2548, 2013 WL 7033666 (3d Cir. Dec. 12, 2013) (finding Knotts was not clear binding precedent because of “(1) the lack of a physical intrusion ..., (2) the placement by police of the beepers inside containers, and (3) the" }, { "docid": "22346696", "title": "", "text": "to Petschen’s house, where the container was transferred to Petschen’s automobile. Officers then followed that vehicle eastward towards the state line, across the St. Croix River, and into Wisconsin. During the latter part of this journey, Petschen began making evasive maneuvers, and the pursuing agents ended their visual surveillance. At about the same time officers lost the signal from the beeper, but with the assistance of a monitoring device located in a helicopter the approximate location of the signal was picked up again about one hour later. The signal now was stationary and the location identified was a cabin occupied by respondent near Shell Lake, Wis. The record before us does not reveal that the beeper was used after the location in the area of the cabin had been initially determined. Relying on the location of the chloroform derived through the use of the beeper and additional information obtained during three days of intermittent visual surveillance of respondent’s cabin, officers secured a search warrant. During execution of the warrant, officers discovered a fully operable, clandestine drug laboratory in the cabin. In the laboratory area officers found formulas for amphetamine and methamphetamine, over $10,000 worth of laboratory equipment, and chemicals in quantities sufficient to produce 14 pounds of pure amphetamine. Under a barrel outside the cabin, officers located the five-gallon container of chloroform. After his motion to suppress evidence based on the war-rantless monitoring of the beeper was denied, respondent was convicted for conspiring to manufacture controlled substances in violation of 21 U. S. C. .§ 846. He was sentenced to five years’ imprisonment. A divided panel of the United States Court of Appeals for the Eighth Circuit reversed the conviction, finding that.the monitoring of the beeper was prohibited by the Fourth Amendment because its use had violated respondent’s reasonable expectation of privacy, and that all information derived after the location of the cabin was a fruit of the illegal beeper monitoring. 662 F. 2d 515 (1981). We granted certiorari, 457 U. S. 1131 (1982), and we now reverse the judgment of the Court of Appeals. In Olmstead v. United States," }, { "docid": "11157915", "title": "", "text": "prior to Jones was admissible under the Davis exception. United States v. Pineda-Moreno, 688 F.3d 1087, 1090-91 (9th Cir.2012) cert. denied, — U.S. -, 133 S.Ct. 994, 184 L.Ed.2d 772 (2013) (finding Ninth Circuit previously held in United States v. McIver, 186 F.3d 1119, 1126-27 (9th Cir.1999), that placing an electronic tracking device on a car was “neither a search nor a seizure under the Fourth Amendment”). “Whatever the effect of Jones, then, the critical evidence here is not subject to the exclusionary rule.” Id. at 1091 (citing Davis, 131 S.Ct. at 2423-24). However, the Third Circuit recently found no good faith reliance exception for a warrantless GPS search because there was no clear, binding precedent in the Third Circuit, United States v. Katzin, 732 F.3d 187, 206-8 (3d Cir.2013) reh’g en banc granted, opinion vacated, 12-2548, 2013 WL 7033666 (3d Cir. Dec. 12, 2013) (finding Knotts was not clear binding precedent because of “(1) the lack of a physical intrusion ..., (2) the placement by police of the beepers inside containers, and (3) the marked technological differences between beepers and GPS trackers.”). As discussed above, in the Eleventh Circuit, we do have clear precedent, Michael, 645 F.2d at 258, holding it did not violate the Fourth Amendment to install an electronic tracking device on the outside of a vehicle without a warrant, which is the same kind of intrusion at issue in this case. Michael articulated clear, binding precedent that installation of a device permitting electronic surveillance of a vehicle does not violate the Fourth Amendment when the police have reasonable suspicion. Michael, 645 F.2d at 257 (holding “that reasonable suspicion is adequate to support warrantless beeper installation”). There is no doubt of reasonable suspicion in this case based on the thorough police investigation detailed by Sergeant Villav-erde and the other officers. Accordingly, it was reasonable for the police to rely on this long-standing, clear precedent when they attached the GPS to the Ford Expedition without a warrant. See Smith, 741 F.3d at 1228. B. Sergeant Villaverde’s Testimony Appellants contend that Sergeant Villaverde’s testimony should have been excluded as" }, { "docid": "417724", "title": "", "text": "closed door and affixed a beeper to the plane’s interior. Specifically noting that the Michael decision was not dispositive of the legality of the installation, maintenance, and monitoring of the beeper in Parks, the court held that the appellants lacked standing to challenge the beeper-related issues. Id. at 1083 & n. 6. Most recently, in United States v. Kupper, 693 F.2d 1129 (5th Cir.1982), this court held that the installation of a beeper inside an airplane pursuant to a limited court order was permissible because the authorization order was supported by probable cause. The court commented that “[t]his case does not present a still undecided issue in our Circuit: whether the installation of an electronic beeper to the interior of an aircraft is a ‘search’ within the meaning of the Fourth Amendment.” Id. at 1130 n. 1. As these references to the scope of Michael ’s holding illustrate, Michael does not govern all situations involving use of electronic tracking devices. In particular, post-Michael cases indicate a distinct hesitancy to extend that holding to beeper installations inside conveyances. Until now, however, no Fifth Circuit case has squarely presented the situation these cases have foreshadowed. b. The Supreme Court The Supreme Court recently addressed the issue of beeper monitoring in United States v. Knotts, ___ U.S. ___, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983). In Knotts, law enforcement officers believed that certain individuals were purchasing chloroform for use in the manufacture of illegal drugs. The officers obtained the seller’s consent to place a beeper inside a drum of chloroform that was sold to the suspects. Using the beeper signals and visual surveillance, the officers ultimately traced the chloroform to a secluded cabin. The officers then secured a search warrant and searched the cabin, where they discovered a drug laboratory. After the district court denied a motion to suppress evidence based on the warrantless monitoring of the beeper, Knotts was convicted for conspiring to manufacture controlled substances. The Eighth Circuit Court of Appeals reversed the conviction, holding that the warrantless monitoring of the beeper was prohibited by the fourth amendment because its use" }, { "docid": "280915", "title": "", "text": "public location is no greater than the privacy interest in a car parked on a public street. Because ‘Davis’s good-faith exception applies, we need not address the government’s alternative argument that suppression was not appropriate because there was no culpable conduct by law enforcement. Nor do we consider the government’s argument — raised for the first time on appeal — that'the use of the GPS device to track Taylor’s car was lawful because it was supported by reasonable suspicion. Affirmed. . Every other circuit to consider the question has applied Davis’s good-faith exception to pre-Jones GPS tracking by law enforcement. Some courts have relied on circuit-level binding appellate precedent to do so. See United States v. Fisher, 745 F.3d 200 (6th Cir.), cert. denied, - U.S. -, 135 S.Ct. 676, 190 L.Ed.2d 393 (2014); United States v. Smith, 741 F.3d 1211 (11th Cir.2013), cert. denied, - U.S. -, 135 S.Ct. 704, 190 L.Ed.2d 439, 2014 WL 2558149; United States v. Sparks, 711 F.3d 58 (1st Cir.), cert. denied, - U.S. -, 134 S.Ct. 204, 187 L.Ed.2d 138 (2013); United States v. Andres, 703 F.3d 828 (5th Cir.), cert. denied, - U.S. -, 133 S.Ct. 2814, 186 L.Ed.2d 873 (2013). Circuits without local precedent have relied on the Supreme Court’s pr e-Jones decisions. See United States v. Katzin, 769 F.3d 163 (3d Cir.2014) (en banc); United States v. Stephens, 764 F.3d 327 (4th Cir.2014); United States v. Aguiar, 737 F.3d 251 (2d Cir.2013), cert. denied, - U.S. -, 135 S.Ct. 400, 190. L.Ed.2d 290 (2014). . Indeed, circuits that did not have their own GPS precedent prior to Jones have uniformly concluded that Knotts is binding appellate precedent for the purpose of Davis’s good-faith exception, even when police officers’ GPS monitoring lasted for a longer period of time. See United States v. Baez, 744 F.3d 30, 35 (1st Cir.2014) (one year of GPS monitoring); United States v. Oladosu, 744 F.3d 36, 38 (1st Cir.) (47 days of GPS monitoring), cert. denied, - U.S. -, 135 S.Ct. 97, 190 L.Ed.2d 80 (2014); Aguiar, 737 F.3d at 262 (months of GPS monitoring)." }, { "docid": "10791341", "title": "", "text": "Knotts and Karo, that a warrant was not needed to place a GPS device on a vehicle and that the good-faith exception to the warrant rule applied). We need not go that far here because at the time of the search the Sixth Circuit had already approved the police conduct. In United States v. Forest, 355 F.3d 942 (6th Cir.2004), police officers dialed a suspected drug trafficker’s phone, without allowing it to ring, and tracked him on public roads by identifying which cell phone towers were being “pinged.” This court upheld the practice, finding that the police did not conduct a search under the Fourth Amendment when they obtained the cell-site data and thereby identified the defendant’s location. Id. at 951-52. As this court explained, “[the defendant] had no legitimate expectation of privacy in the cell-site data because the DEA agents could have obtained the same information by following Garner’s car.” Id. at 951. Our decision in Forest was consistent with this court’s prior determination in United States v. Cassity, 720 F.2d 451, 455 (6th Cir.1983) (indicating that beepers may be used to track individuals in public places but not in private areas like homes), vacated, 468 U.S. 1212, 104 S.Ct. 3581, 82 L.Ed.2d 879 (1984). While Forest and Cassity dealt with cell phones and beepers, not GPS, the cases clearly indicated that the warrantless use of electronic tracking devices was permissible. Put differently, our precedent on the constitutionality of warrantless track ing was unequivocal. See Buford, 632 F.3d at 276 n. 9. Obviously, the technological device in the present case is not exactly the same as that used in Forest, but the effect it has is nearly identical: police used the defendant’s cell phone in Forest like a GPS tracker to identify the defendant’s location. See Forest, 355 F.3d at 948 (“[Defendant] contends that the DEA’s use of cell-site data effectively turned his cellular phone into a tracking device, violating his rights under ... the Fourth Amendment.”). This is again precisely what the police did here. Officers heavily relied on physical surveillance to follow Fisher and used the GPS" }, { "docid": "417725", "title": "", "text": "inside conveyances. Until now, however, no Fifth Circuit case has squarely presented the situation these cases have foreshadowed. b. The Supreme Court The Supreme Court recently addressed the issue of beeper monitoring in United States v. Knotts, ___ U.S. ___, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983). In Knotts, law enforcement officers believed that certain individuals were purchasing chloroform for use in the manufacture of illegal drugs. The officers obtained the seller’s consent to place a beeper inside a drum of chloroform that was sold to the suspects. Using the beeper signals and visual surveillance, the officers ultimately traced the chloroform to a secluded cabin. The officers then secured a search warrant and searched the cabin, where they discovered a drug laboratory. After the district court denied a motion to suppress evidence based on the warrantless monitoring of the beeper, Knotts was convicted for conspiring to manufacture controlled substances. The Eighth Circuit Court of Appeals reversed the conviction, holding that the warrantless monitoring of the beeper was prohibited by the fourth amendment because its use violated Knotts’ reasonable expectation of privacy. United States v. Knotts, 662 F.2d 515 (8th Cir.1981). The United States Supreme Court reversed the court of appeals, holding that the monitoring of beeper signals was neither a “search” nor a “seizure” within the contemplation of the fourth amendment. 103 S.Ct. at 1087. The Court was careful to note that the installation of the beeper was not an issue in the case. “Respondent does not challenge the warrantless installation of the beeper in the chloroform container, suggesting in oral argument that he did not believe that he had standing to make such a challenge .... [W]e have not before and do not now pass on the issue.” Id. at 1084 n. **. Turning to the potential fourth amendment concerns raised by beeper monitoring, the Court equated such surveillance with “the following of an automobile on public streets and highways.” Id. at 1085. The Court then held that “[a] person travel-ling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place" }, { "docid": "280906", "title": "", "text": "from the car’s battery, were not installed while the car was parked on private property; and did not track the car’s movement for 60 days. Thus, the court observed, “law enforcement could not have objectively relied on Garcia and Cuevas-Perez when the cases do not explicitly, or for that matter implicitly, authorize the specific actions taken here.” But suppression was unwarranted, the court held, because the officers had obtained judicial authorization to use the GPS device and their reliance on that authorization was objectively reasonable. The judge also explained that applying the exclusionary rule was not appropriate because the rule is meant to deter culpable conduct by law enforcement and there was no culpable conduct in this case. Finally, the judge rejected Taylor’s argument that the warrant was defective because Schwomeyer’s affidavit had omitted material facts. While Taylor’s case was still pending in the district court, we issued United States v. Brown, 744 F.3d 474 (7th Cir.), cert. denied, — U.S. -, 135 S.Ct. 378, 190 L.Ed.2d 255 (2014), which applied Davis’s good-faith exception to the use of a GPS device to track a car in 2006, before Garcia or Cuevas-Perez were decided. The GPS device in Broum was installed with the consent of the car’s owner, but it was used to track a driver who had not consented. Id. at 476. Our decision in Broum confirmed that Garcia and Cuevas-Perez were binding appellate precedent in this circuit establishing “that installation of a GPS device, and the use of the location data it produces, are not within the scope of the [Fjourth [AJmendment.” Id. And even though the GPS tracking in Brown predated Garcia and Cuevas-Perez, we concluded that there was nonetheless binding appellate precedent in 2006 for the purpose of Davis’s good-faith exception: to wit, the Supreme Court’s decisions in United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983) (holding that law enforcement’s monitoring of a signal from beeper is not a search), and United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984) (holding that installation of beeper is" }, { "docid": "18402045", "title": "", "text": "Id. at 511-12, 81 S.Ct. 679. In United States v. Knotts, police officers learned Tristan Armstrong was purchasing chemicals used in the manufacture of illegal drugs from the Hawkins Chemical Company (Hawkins). 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983). With Hawkins’ permission, the officers installed a beeper inside a five-gallon container of chloroform, one of the chemicals being purchased. Hawkins agreed that when Armstrong next purchased chloroform, this container would be given to him. When Armstrong made the purchase, the officers followed his vehicle, maintaining contact with the ear using both visual surveillance and the beeper. Armstrong proceeded to co-defendant Darryl Petschen’s house, where the container was transferred to Petschen’s vehicle. The officers then followed that vehicle, until it began making evasive maneuvers, at which time the officers ended their visual surveillance. Almost simultaneously, the officers lost the beeper’s signal. An hour later, the officers recovered the signal. Its location was identified as Leroy Knotts’ cabin. Over the next three days, the officers performed visual surveillance of the cabin. They eventually secured a search warrant, its execution uncovering a clandestine drug laboratory. Knotts was arrested and convicted for conspiring to manufacture controlled substances. Knotts argued the officers’ monitoring of the beeper without a warrant violated the Fourth Amendment. The Supreme Court disagreed. It concluded the monitoring had not invaded Knotts’ legitimate expectations of privacy and thus was not a search under the Fourth Amendment. Id. at 285, 103 S.Ct. 1081. It explained: Admittedly, because of the failure of the [officers’] visual surveillance, the beeper enabled the [officers] to ascertain the ultimate resting place of the chloroform when they would not have been able to do so had they relied solely on their naked eyes. But scientific enhancement of this sort raises no constitutional issues which visual surveillance would not also raise. A police car following Pet-schen at a distance throughout his journey could have observed him leaving the public highway and arriving at [Knotts’ cabin], with the drum of chloroform still in the car. This fact, along with others, was used by the government in obtaining a" }, { "docid": "15621499", "title": "", "text": "months. Skinner now appeals, arguing that the use of the GPS location information emitted from his cell phone was a warrantless search that violated the Fourth Amendment, that there was insufficient evidence to find him guilty of conspiracy to commit money laundering, and that as a minor participant in the drug conspiracy he was entitled to a mitigating role reduction. II. A. No Fourth Amendment Violation There is no Fourth Amendment violation because Skinner did not have a reasonable expectation of privacy in the data given off by his voluntarily procured pay-as-you-go cell phone. If a tool used to transport contraband gives off a signal that can be tracked for location, certainly the police can track the signal. The law cannot be that a criminal is entitled to rely on the expected untrackability of his tools. Otherwise, dogs could not be used to track a fugitive if the fugitive did not know that the dog hounds had his scent. A getaway car could not be identified and followed based on the license plate number if the driver reasonably thought he had gotten away unseen. The recent nature of cell phone location technology does not change this. If it did, then technology would help criminals but not the police. It follows that Skinner had no expectation of privacy in the context of this case, just as the driver of a getaway car has no expectation of privacy in the particular combination of colors of the car’s paint. This conclusion is directly, supported by United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983). In Knotts, the police, with the consent of a chemical company, placed a beeper in a five-gallon drum of chloroform in order to track the movements of a defendant and discover the location of a clandestine drug laboratory. Using visual surveillance, as well as the signal emitted from the beeper when police lost visual contact, law enforcement officials traced the car to a secluded cabin, where the defendant and others had been manufacturing illicit drugs. The Supreme Court held that this monitoring did not" }, { "docid": "13690079", "title": "", "text": "on deterrence; where judicial precedent does not clearly authorize a particular practice, suppression has deterrent value because it creates an “incentive to err on the side of constitutional behavior.” Davis, 598 F.3d at 1266-67 (quoting United States v. Johnson, 457 U.S. 537, 561, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982)) (internal quotation marks omitted); see Davis, 131 S.Ct. at 2435 (Sotomayor, J., concurring in the judgment); Wayne A. Logan, Police Mistakes of Law, 61 Emory L.J. 69, 86-87 (2011); Mason, supra, at 71-72. B. Davis’s good faith exception applies here The foregoing principles require us to find that suppression would be improper here. This is certainly a closer question in this circuit than in those that had directly addressed the propriety of warrantless GPS tracking prior to Jones. E.g., Pineda-Moreno, 688 F.3d at 1090. Nevertheless, we think the Supreme Court’s decision in Knotts, 460 U.S. 276, 103 S.Ct. 1081, and ours in United States v. Moore, 562 F.2d 106 (1st Cir.1977), are sufficiently clear and apposite to trigger Davis here. In Moore, we considered the government’s warrantless installation and use of “beepers” (battery-powered radio transmitters) to track the movements of the defendants’ vehicles on public roads. 562 F.2d at 110-13. We concluded that “[w]hile a driver has no claim to be free from observation while driving in public, he properly can expect not to be carrying around an uninvited device that continuously signals his presence.” Id. at 112. Balancing these considerations and the needs of law enforcement, we held that “while the lessened expectancy of privacy associated with motor vehicles justifies the use of beepers without a warrant to track vehicles, this can be done only if the officers have probable cause at the time.” Id. at 112-13. Importantly for present purposes, we focused almost exclusively on the defendants’ privacy interests in their movements, dismissing “the trespass involved in affixing the beepers to the under-body of the vehicles” as “so minimal as to be of little consequence.” Id. at 111. As the Moore court predicted, id. at 110, the issue of beeper surveillance eventually reached the Supreme Court. In Knotts," }, { "docid": "20848097", "title": "", "text": "1335, 1340 (4th Cir.1981), that “this rule of diminished ex pectation of privacy is particularly appropriate when the automobile is located in the street or in a public area.” Although neither the Supreme Court nor this Court had expressly approved or disapproved of warrantless GPS usage in 2011, the Supreme Court had rejected a Fourth Amendment challenge to law enforcement officers’ use of a beeper, which is the technological forerunner to the GPS. In United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983), officers had placed a beeper in a container that was later filled with chloroform, which they suspected was being used to make illegal drugs. After the chloroform was purchased, one suspect (Petschen) placed the container in his vehicle, and the officers followed the container by using both visual surveillance of the vehicle and a monitor that received signals from the beeper. The officers eventually obtained a search warrant for Knotts’ cabin and premises, which is where the container was delivered, and they discovered a drug-making laboratory. Following his arrest, Knotts unsuccessfully moved to suppress evidence on Fourth Amendment grounds because of the beeper use, and he was convicted on a drug conspiracy charge. The Court upheld the denial of the suppression motion, holding that the use of the beeper was not a search under the Fourth Amendment. Id. at 285, 103 S.Ct. 1081. Noting the diminished expectation of privacy in automobiles, the Court explained that “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” Id. at 281, 103 S.Ct. 1081. Thus, “[w]hen Petschen travelled over the public streets he voluntarily conveyed to anyone who wanted to look the fact that he was travel-ling over particular roads in a particular direction, the fact of whatever stops he made, and the fact of his final destination....” Id. at 281-82, 103 S.Ct. 1081. Importantly, the Court specifically rejected Knotts’ argument concerning the beeper: Visual surveillance from public places along Petschen’s route or adjoining Knotts’ premises would have sufficed to reveal all" }, { "docid": "20848145", "title": "", "text": ". Specifically, when discussing the use of a GPS device versus a beeper, the district court stated that GPS monitoring \"isn't a new technology. This is old technology. It’s 20, 30, 40 years that police officers have been using beepers, transponders, whatever you want to call them, and following them around. And it's not a subject that the [cjourts haven’t previously addressed.” J.A. 470. As discussed more fully below, beepers and GPS devices are not one and the same. Moreover, Krull, 480 U.S. 340, 107 S.Ct. 1160, did not involve the use of a beeper at all, let alone a GPS device. . Even if such a case existed relative to beeper tracking devices, I am doubtful installation of a beeper would also “specifically authorize[]” installation of a GPS device. Davis, 131 S.Ct. at 2429. The two are of an entirely different character. A beeper tracking device requires law enforcement to at least be in proximity to the device to receive the transmitted signal, whereas a GPS device downloads location data at specific time intervals with no proximity needed. See, e.g., Jones, 132 S.Ct. at 963-64 (Sotomayor, J., concurring) (discussing the differences between surveillance using a GPS device and a beeper). In other words, with the use of a GPS device, law enforcement may simply download the data from afar at their leisure, as they did in this case. . See also, United States v. Martin, 712 F.3d 1080 (7th Cir.2013) (per curiam). Although the Seventh Circuit decided the case on other grounds, it stated that the district court's reliance on Davis was \"an unwarranted expansion of the Supreme Court's decision” because \"[a]s Justice Sotomayor pointed out in her opinion concurring in the judgment, Davis 'd[id] not present the markedly different question whether the exclusionary rule applies when the law governing the constitutionality of a particular search is unsettled.’ ” Martin, 712 F.3d at 1082 (quoting Davis, 131 S.Ct. at 2435 (Sotomayor, J., concurring)). The court emphasized that the good faith exception as pronounced in Davis applies \"only to 'a search [conducted] in objectively reasonable reliance on binding appellate precedent.'" }, { "docid": "18402046", "title": "", "text": "a search warrant, its execution uncovering a clandestine drug laboratory. Knotts was arrested and convicted for conspiring to manufacture controlled substances. Knotts argued the officers’ monitoring of the beeper without a warrant violated the Fourth Amendment. The Supreme Court disagreed. It concluded the monitoring had not invaded Knotts’ legitimate expectations of privacy and thus was not a search under the Fourth Amendment. Id. at 285, 103 S.Ct. 1081. It explained: Admittedly, because of the failure of the [officers’] visual surveillance, the beeper enabled the [officers] to ascertain the ultimate resting place of the chloroform when they would not have been able to do so had they relied solely on their naked eyes. But scientific enhancement of this sort raises no constitutional issues which visual surveillance would not also raise. A police car following Pet-schen at a distance throughout his journey could have observed him leaving the public highway and arriving at [Knotts’ cabin], with the drum of chloroform still in the car. This fact, along with others, was used by the government in obtaining a search warrant which led to the discovery of the clandestine drug laboratory. But there is no indication that the beeper was used in any way to reveal information as to the movement of the drum within the cabin, or in any way that would not have been visible to the naked eye from outside the cabin. Id. at 285, 103 S.Ct. 1081 (emphasis added). The Supreme Court distinguished Knotts in United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984). There, an agent with the Drug Enforcement Administration learned James Karo, Richard Horton and William Harley had ordered fifty gallons of ether from a government informant. The ether was to be used to extract cocaine from clothing that had been imported into the United States. The agent obtained a court order authorizing the installation and monitoring of a beeper in one of the cans of ether. Thereafter, the agent observed Karo pick up the ether from the informant. The agent followed Karo to his house using both visual and beeper surveillance." }, { "docid": "19626116", "title": "", "text": "of the privacy interests at stake. The first set of cases addresses a person's expectation of privacy in his physical location and movements. In United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983), we considered the Government's use of a \"beeper\" to aid in tracking a vehicle through traffic. Police officers in that case planted a beeper in a container of chloroform before it was purchased by one of Knotts's co-conspirators. The officers (with intermittent aerial assistance) then followed the automobile carrying the container from Minneapolis to Knotts's cabin in Wisconsin, relying on the beeper's signal to help keep the vehicle in view. The Court concluded that the \"augment[ed]\" visual surveillance did not constitute a search because \"[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.\" Id., at 281, 282, 103 S.Ct. 1081. Since the movements of the vehicle and its final destination had been \"voluntarily conveyed to anyone who wanted to look,\" Knotts could not assert a privacy interest in the information obtained. Id., at 281, 103 S.Ct. 1081. This Court in Knotts, however, was careful to distinguish between the rudimentary tracking facilitated by the beeper and more sweeping modes of surveillance. The Court emphasized the \"limited use which the government made of the signals from this particular beeper\" during a discrete \"automotive journey.\" Id., at 284, 285, 103 S.Ct. 1081. Significantly, the Court reserved the question whether \"different constitutional principles may be applicable\" if \"twenty-four hour surveillance of any citizen of this country [were] possible.\" Id., at 283-284, 103 S.Ct. 1081. Three decades later, the Court considered more sophisticated surveillance of the sort envisioned in Knotts and found that different principles did indeed apply. In United States v. Jones, FBI agents installed a GPS tracking device on Jones's vehicle and remotely monitored the vehicle's movements for 28 days. The Court decided the case based on the Government's physical trespass of the vehicle. 565 U.S., at 404-405, 132 S.Ct. 945. At the same time, five Justices agreed that related privacy" }, { "docid": "15621500", "title": "", "text": "the driver reasonably thought he had gotten away unseen. The recent nature of cell phone location technology does not change this. If it did, then technology would help criminals but not the police. It follows that Skinner had no expectation of privacy in the context of this case, just as the driver of a getaway car has no expectation of privacy in the particular combination of colors of the car’s paint. This conclusion is directly, supported by United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983). In Knotts, the police, with the consent of a chemical company, placed a beeper in a five-gallon drum of chloroform in order to track the movements of a defendant and discover the location of a clandestine drug laboratory. Using visual surveillance, as well as the signal emitted from the beeper when police lost visual contact, law enforcement officials traced the car to a secluded cabin, where the defendant and others had been manufacturing illicit drugs. The Supreme Court held that this monitoring did not violate the Constitution because “[t]he governmental surveillance conducted by means of the beeper in this case amounted principally to the following of an automobile on public streets and highways.... A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” Id. at 281, 103 S.Ct. 1081. The Court noted that, in Knott’s case, “[a] police car following [a defendant] at a distance throughout his journey could have observed him leaving the public highway and arriving at the cabin.... [T]here is no indication that the beeper was used in any way to reveal information ... that would not have been visible to the naked eye.” Id. at 285, 103 S.Ct. 1081. Similar to the circumstances in Knotts, Skinner was traveling on a public road before he stopped at a public rest stop. While the cell site information aided the police in determining Skinner’s location, that same information could have been obtained through visual surveillance. There is no inherent constitutional difference between trailing a defendant" } ]

[ { "docid": "23300916", "title": "", "text": "assignee of part of a credit or of a chose in action founded thereon cannot maintain, without the assent of the debtor, an action at law thereon, because a creditor may not split his cause of action and subject the debtor to the annoyance of several actions to recover a single claim. Mandeville v. Welch, 5 Wheat. (U. S.) 277, 288, 5 L. Ed. 87; Thomas v. Mining Co., 54 Cal. 578; Russell v. Ferguson, 9 Martin 647; Weinstock v. Bellwood, 75 Ky. 139; Burditt v. Porter, 21 Atl. 955, 63 Vt. 296, 25 Am. St. Rep. 763; Shankland v. City of Washington, 5 Pet. (U. S.) 389, 395, 8 L. Ed. 166; Carter v. Nichols, 5 Atl. 197, 58 Vt. 553; Crosby v. Loop, 13 Ill. 625, 628; Otis v. Adams, 27 Atl. 1092, 56 N. J. Law, 38; Milroy v. Spurr, etc., Co., 43 Mich. 231, 5 N. W. 287; Snedden v. Harmes, 5 Colo. App. 477, 39 Pac. 68. Decisions may also be found which erroneously apply this rule to suits in equity. Burnett v. Crandall, 63 Mo. 410; Getchell v. Maney, 69 Me. 442, 444, 40 Am. Rep. 388; Johnson County v. Bryson, 27 Mo. App. 341, 349; Fourth National Bank v. Noonan, 88 Mo. 372, 377; Cook v. Bidwell (C. C.) 8 Fed. 452, 456; Appeals of City of Philadelphia, 86 Pa. 179, 182; C. & N. W. R. Co. v. Nichols, 57 Ill. 464, 466; Kansas City, M. & B. R. Co. v. Robertson, 19 South. 432, 109 Ala. 296; Insurance Co. v. Bullene, 51 Kan. 764, 774, 33 Pac. 467; Leonard v. M., K. & T. Ry. Co., 68 Mo. App. 48, 50; Bosworth v. Jacksonville Nat. Bank, 12 C. C. A. 331, 64 Fed. 615; Skobis v. Ferge, 78 N. W. 426, 429, 102 Wis. 588; Kiddoo Bros. v. Dalton, 73 Mo. App. 667. But the settled rule of the national courts and the general and rational rule is that the assignee of a part of a credit or of a chose in action or of property in the custody of another" } ]

[ { "docid": "13452732", "title": "", "text": "L. Ed. 909]; Beecher v. Lewis, 84 Va. 630, 6 S. E. 367; Walters v. Bank, 76 Va. 12, 19. The principle is almost universal that jurisdiction of the subject-matter does not depend upon the ultimate existence of a good cause of action in the particular case. Where equity has acquired jurisdiction upon equitable grounds, it may go on to complete adjudication, establish legal rights, and grant legal remedies otherwise beyond its scope; and no fact subsequently ascertained, showing want of good cause of action in the particular case, can defeat that jurisdiction.” See, also, Holland v. Anderson, 38 Mo. 55; Case v. Minot, 158 Mass. 577, 33 N. E. 700, 22 L. R. A. 536; Milkman v. Ordway, 106 Mass. 232; Hazen v. Lyndonville Nat. Bank, 70 Vt. 543, 41 A. 1046, 67 Am. St. Rep. 680, 689; Cincinnati & C. Traction Co. v. American Bridge Co. (C. C. A. 6th) 202 F. 184; Waite v. O’Neil (C. C. A. 6th) 76 F. 408, 34 L. R. A. 550; Woodcock v. Bennet, 1 Cow. (N. Y.) 711, 13 Am. Dec. 568, 586; Hall v. Delaplaine, 5 Wis. 206, 68 Am. Dec. 57; note to Pomeroy’s Equity Jurisprudence (4th Ed.) vol. 1, pp. 374 to 379, and cases there cited. Argument is made in behalf of Hare & Chase that, since complainants are not entitled to rescission, they are not entitled to damages, and reliance is placed upon cases such as Houldsworth v. City of Glasgow Bank and Liquidators, 5 App. Cas. 317; Oakes v. Turquand, Law Rep. 2 H. L. 325; Wilson v. Hundley, 96 Va. 96, 30 S. E. 492, 70 Am. St. Rep. 837; and Virginia-Carolina Rubber Co. v. Flanagan, 150 Va. 276, 142 S. E. 376. These eases, however, have no application here. The Virginia cases hold that a stockholder whose subscription has been obtained by fraud may not retain the stock and sue for damages, but must offer to return the stock and sue in equity for rescission. That is exactly what complainants here have done, and damages are being awarded them in lieu of" }, { "docid": "15062282", "title": "", "text": "3 Pet. (28 U. S.) 270, 7 L. Ed. 676; Green v. Neal, 6 Pet. (31 U. S.) 291, 8 L. Ed. 402; Ross v. Duval, 38 U. S. (13 Pet.) 45, 54, 10 L. Ed. 51; U. S. v. Wiley, 78 U. S. (11 Wall.) 508, 20 L. Ed. 211; Hanger v. Abbott, 6 Wall. (73 U. S.) 532, 18 L. Ed. 939; Rem. §§ 954, 956; First National Bank v. Aultman, 12 Am. Bankr. Rep. 12; In re Tucker (D. C.) 131 F. 647; In re Benedict Tea & Coffee Co. (D. C.) 192 F. 1011; In re Worth (D. C.) 130 F. 927; American Woolen Mills v. Samuelsohn, 226 N. Y. 61, 123 N. E. 154; Black on Bkptcy (3d) Ed.) §§ 556, 566; Yeatman v. New Orleans Savings, 95 U. S. 764, 24 L. Ed. 589; Ward v. First National Bank, 202 F. 609, 120 C. C. A. 655; Courtney v. Fidelity Trust Co., 219 F. 57, 134 C. C. A. .595; Black on Bkptcy. § 364; Rem. on Bkptcy. (1923 Ed.) § 909; Maryman v. Dreyfus, 117 Ark. 17, 174 S. W. 549, 34 Am. Bankr. R. 637; McDermott v. Tolt Land Co., 101 Wash. 114, 172 P. 207; Siegfried v. New York, etc., R. Co., 50 Ohio St. 294, 34 N. E. 331; Kirby v. Lake Shore & M. S. Ry. Co., 120 U. S. 130, 7 S. Ct. 430, 30 L. Ed. 569; Merrill v. Town of Monticello (C. C.) 66 F. 165; Walker v. Peay, 22 Ark. 103; Null v. White Water Valley Canal Co., 4 Ind. 431; Bauserman v. Charlott, 46 Kan. 480, 26 P. 1051; Spokane County v. Prescott, 19 Wash. 425, 53 P. 661, 57 Am. St. Rep. 733; Palmer v. Palmer, 36 Mich. 487, 24 Am. Rep. 609. Authorities cited on behalf of Chas. R. Brown, trustee, claimant: 2 Black, on Bankruptcy (3d Ed.) § 516, p. 1080; City Sash & Door Co. v. Bunn, 90 Wash. 669, 156 P. 854, Ann. Cas. 1918B, 31; In re Eldridge, Fed. Cas. No. 4,331; In re Maybin, Fed. Cas. No." }, { "docid": "2972854", "title": "", "text": "N. Y.) 255 F. 195; Ex parte Walker, 25 Ala. 81; Calhoun v. King, 5 Ala. 523; Jones v. Dougherty, 10 Ga. 273; Dougherty v. McDougald, 10 Ga. 121; Skinner v. Maxwell, 66 N. C. 45. See also Rogers v. Rogers, 111 N. Y. 228, 18 N. E. 636; Payne v. Morriss (Va.) 5 S. E. 568; Burroughs v. Gaither, 65 Md. 171, 7 A. 243, 251; Washington Nat. B. & L. Ass’n v. Buser, 61 W. Va. 590, 57 S. E. 40, 42; Batesville Institute v. Kauffman, 18 Wall. 151, 154, 21 L. Ed. 775. In re Puget Sound Sav. & Loan Ass’n (D. C. Wash.) 49 F.(2d) 922, 925; Curtis v. Dade County Security Co. (C. C. A. 5) 30 F.(2d) 325, 326; In re Eureka Anthracite Coal Co. (D. C. Ark.) 197 F. 216, 217; Fletcher’s Cyc. Corp. (Perm. Ed.) Vol. 13, § 5755. “The trust is distinguished from a debt in that— “(a) The trust involves specific subject-matter, whereas the debt does not; “(b) The trustee’s obligations are equitable, while the debtor’s are legal; “(c) The trustee occupies a fiduciary relation, but the debtor does not.” Bogert on Trusts, p. 16. See, also, Guardian Trust Co. v. Studdert (Tex. Civ. App.) 36 S.W.(2d) 578, 582; Thornburg v. Buck, 13 Ind. App. 446, 41 N. E. 85, 86. Chesapeake & Del. Canal Co. v. United States, 250 U. S. 123, 126, 39 S. Ct. 407, 63 L. Ed. 889; Staats v. Biograph Co. (C. C. A. 2) 236 F. 454, 458, L. R. A. 1917B, 728; New York Trust Co. v. Edwards (D. C. N. Y.) 274 F. 952, 954; Bulger Block Coal Co. v. United States (Ct. Cl.) 48 F.(2d) 675, 678; Park v. Gilligan (D. C. Ohio) 293 F. 129, 131; Mason v. Routzahn (D. C. Ohio) 8 F.(2d) 56, 58; United States v. Guinzburg (C. C. A. 2) 278 F. 363. Hunt v. O’Shea, 69 N. H. 600, 45 A. 480; McLaran v. Crescent Planing Mill Co., 117 Mo. App. 40, 93 S. W. 819, 821; Fletcher’s Cyc. Corp. (Perm. Ed.) vol. 11, $" }, { "docid": "13346649", "title": "", "text": "F. 693, 706, 69 L. R. A. 705 (opinion by Harlan, Circuit Justice), it was held permissible to show that defendant’s superintendent, in answer to a question, said: “I am sorry. I was going to put this car on the elevator track. When I backed up, I did not see you. I did not know just where you was until I heard you holler.” Other well-reasoned eases discussing the principles involved are Chesapeake & O. R. Co. v. Mears (C. C. A. 4) 64 F.(2d) 291; Perry v. Haritos, 100 Conn. 476, 124 A. 44; People v. Del Vermo, 192 N. Y. 470, 85 N. E. 690; Travelers’ Ins. Co. v. Sheppard, 85 Ga. 751, 12 S. E. 18; State v. McLaughlin, 138 La. 958, 70 So. 925. Nor were the declarations of the workman inadmissible because they were those of an agent or employee. It is true that the declarations of an agent or employee which are not part of the res geste are inadmissible, Vicksburg, etc., R. Co. v. O’Brien, 119 U. S. 99, 7 S. Ct. 172, 30 L. Ed. 299, but they are admissible if a part of the res geste, New Jersey Steam-Boat Co. v. Brockett, 121 U. S. 637, 649, 7 S. Ct. 1039, 30 L. Ed. 1049; 2 Wigmore (2d Ed.) § 1078; 3 Wigmore (2d Ed.) § 1769. On this point this ease is ruled by Peirce v. Van Dusen (C. C. A. 6) 78 F. 693, 69 L. R. A. 705, supra. And see Denver Omnibus & Cab Co. v. Krebs (C. C. A. 8) 255 F. 543. The declarations sought to be admitted in Cyborowski v. Kinsman Transit Co. (C. C. A. 6) 179 F. 440, were not part of the res gestas, nor were they spontaneous exclamations. The declarations were admissible as against the contention that they were “but the expression of an opinion or conclusion as to who caused the accident.” Neisner Bros. v. Schafer, 124 Ohio St. 311, 178 N. E. 269, 270; Cottom v. Klein, 123 Ohio St. 440, 175 N. E. 689. Rather the declarations" }, { "docid": "22869366", "title": "", "text": "States v. Insurance Board of Cleveland, D.C.N.D. Ohio, 1954 Trade Cas. (CCH) ¶ 67,873 (1954) ; Willard C. Beach Air Brush Co. v. General Motors Corp., D.C.D.N.J., 118 F.Supp. 242 (1953), aff’d, 3 Cir., 214 F.2d 664; Leonia Amusement Corp. v. Loew’s Inc., D.C.S.D.N.Y., 13 F.R.D. 438 (1952); Shawmut, Inc. v. American Viscose Corp., D.C.D.Mass., 12 F.R.D. 488 (1952); Stockard S. S. Co. v. Aetna Ins. Co., D.C.S.D.N.Y., 16 Fed.Rules.Serv. 34.42, Case 2 (1952); A. B. Dick. Co. v. Marr, D.C.S.D.N.Y., 95 F.Supp. 83, 102 (1950), appeal dismissed, 2 Cir., 197 F.2d 498, cert. denied, 344 U.S. 878, 73 S.Ct. 169, 97 L.Ed. 680; United States v. United Shoe Machinery Corporation, D.C.D.Mass., 89 F.Supp. 357 (1950); Phillips v. Hickey, D.C.S.D.N.Y., 14 Fed. Rules Serv. 36a.27, Case 1 (1950); In re Associated Gas & Electric Co., D.C.S.D.N.Y., 59 F.Supp. 743 (1944); E. W. Bliss Co. v. Cold Metal Process Co., D.C.N.D., Ohio, 1 F.R.D. 193 (1940); Lalance & Grosjean Mfg. Co. v. Haberman Mfg. Co., C.C.S.D.N.Y., 87 F. 563 (1898) ; Edison Electric Light Co. v. United States Electric Lighting Co., C.C.S.D.N.Y., 44 F. 294 (1890); Western Union Tel. Co. v. Baltimore & Ohio Tel. Co., C.C.S.D.N.Y., 26 F. 55 (1885). State cases: Holm v. Superior Court, 42 Cal.2d 500, 267 P.2d 1025, 268 P.2d 722 (1954); Fire Ass’n v. Flemming, 78 Ga. 733, 3 S.E. 420 (1887); Schmitt v. Emery, 211 Minn. 547, 2 N.W.2d 413, 139 A.L.R. 1242 (1942); Stewart Equipment Co. v. Gallo, L. Div., 32 N.J.Super. 15, 107 A.2d 527 (1954) ; Russell v. Second Nat. Bank of Paterson, Ct.Err. & App., 136 N.J.L. 270, 55 A.2d 211 (1947); Pressman v. C. B. S., Inc., 133 (51) N.Y.L.J. 7, Col. 4M (Spec. Term N.Y.Co., 3-15-55); Stahl v. Federated Meat Corp., 121 (114) N.Y.L.J. 2102, Col. 3F (Spec. Term Queens Co., 6-13-49); Myles E. Rieser Co. v. Loew’s, Inc., 194 Misc. 119, 81 N.Y.S.2d 861 (1948); L. Michel Plumbing & Heating Corp. v. Randall Avenue Theatre Corp., 179 Misc. 998, 39 N.Y.S.2d 830 (1943); In re Hyde, 149 Ohio St. 407, 413, 79 N.E.2d 224, 227 (1948) ;" }, { "docid": "23606834", "title": "", "text": "6) 296 F. 9, 11; Goldwyn Distributing Corp. v. Brenneman (C. C. A. 3) 13 F.(2d) 105, 107; Hoggson Bros. v. First Nat. Bank of Roswell (C. C. A. 8) 231 F. 869; Bauer’s Law & Collection Co. v. Harrell, 32 Cal. App. 45, 162 P. 125, 135; Guitron v. Rodriguez, 105 Cal. App. 513, 288 P. 134; Fayette-Kanawha Coal Co. v. Lake & Export Coal Corp., 91 W. Va. 132, 112 S. E. 222, 23 A. L. B. 565; R. T. Clark & Co. v. Miller, 154 Miss. 233, 122 So. 475; Southern Pub. Ass’n v. Clement’s Paper Co., 139 Tenn. 429, 201 S. W. 745, 747, L. R. A. 1918D, 580; Indiana Life Endowment Co. v. Reed, 54 Ind. App. 450, 103 N. E. 77, 81; Bannister v. Victoria C. & C. Co., 63 W. Va. 502, 61 S. E. 338; Armstrong v. Ross, 61 W. Va. 38, 55 S. E. 895. See, also, United State Potash Co. v. McNutt (C. C. A. 10) 70 F.(2d) 126. McNamara v. Cerf, supra; Bauer’s Law & Collection Co. v. Harrell, supra; Guitron v. Rodriguez, supra; Fayette-Kanawha Coal Co. v. Lake & Export Coal Corp., supra; Indiana Life Endowment Co. v. Reed, supra; Bannister v. Victoria C. & C. Co., supra. Bannister v. Victoria C. & C. Co., 63 W. Va. 502, 61 S. E. 338; Armstrong v. Ross, 61 W. Va. 38, 55 S. E. 895, 899; Indiana Life Endowment Co. v. Reed, 54 Ind. App. 450, 103 N. E. 77, 81; Southern Pub. Ass’n v. Clements Paper Co., 139 Tenn. 429, 201 S. W. 745, 747, L. R. A. 1918D, 580. Schunk v. Moline, Milburn & Stoddard Co, 147 U. S. 500, 504, 507, 13 S. Ct. 416, 37 L. Ed. 255; Smithers v. Smith, 204 U. S. 632, 642-644, 27 S. Ct. 297, 51 L. Ed. 656; Barry v. Edmunds, 116 U. S. 550, 559-562, 6 S. Ct. 501, 29 L. Ed. 729; Greene County Bank v. J. H. Teasdale Commission Co. (C. C. Mo.) 112 F. 801, 802-804; Owen M. Bruner Co. v. O. R. Manefee Lbr." }, { "docid": "6001438", "title": "", "text": "L. Ed. 399; Western Union Tel. Co. v. Louisville & N. R. Co. (D. C.) 201 Fed. 932; Harley v. Firemen’s Fund Ins. Co. (D. C.) 245 Fed. 471; Plant v. Harrison (C. C.) 101 Fed. 307; Groel v. U. S. Elec. Co. (C. C.) 132 Fed. 252; State ex rel. City of Seattle v. Pug. Sound Traction, Light & P. Co. (D. C.) 243 Fed. 748; 3 Blackstone, Commentaries, 110; Thompson v. Central Ohio R. Co. et al., 6 Wall. 134, 18 L. Ed. 765; Robinson v. Campbell, 3 Wheat. 212, 4 L. Ed. 372; Kendall v. United States, 12 Pet. 524, 9 L. Ed. 1181; 19 Am. & Eng. Ency. Law, p. 876; Richmond Ry. & Elec. Co. v. Brown, 97 Va. 26, 32 S. E. 775; People ex rel. Jackson v. Suburban R. Co., 178 Ill. 594, 53 N. E. 349, 352, 49 L. R. A. 650; State ex rel. City of Vincennes v. Vincennes Traction Co., 187 Ind. 291, 117 N. E. 961; People ex rel. Brush v. N. Y. Suburban Water Co., 38 App. Div. 413, 56 N. Y. Supp. 364; Willcox et al. v. Richmond L. & R. Co. et al., 142 App. Div. 44, 128 N. Y. Supp. 266, 270; Gas & Elec. S. Co. v. Manhattan & Q. Tr. Corp. (C. C. A.) 266 Fed. 625, 636; Potter v. Calumet Elec. St. Ry. Co. (C. C.) 158 Fed. 521, 528; State ex rel. Bristow v. Landon, 100 Kan. 593, 165 Pac. 1111; Com. Union Tel. Co. v. New England Tel. & Tel. Co., 61 Vt. 241, 17 Atl. 1071, 5 L. R. A. 161, 15 Am. St. Rep. 893; N. P. R. Co. v. Washington, 142 U. S. 492, 12 Sup. Ct. 283, 35 L. Ed. 1092; Richmond Ry. & Elec. Co. v. Brown, 97 Va. 26, 32 S. E. 775; sections 1014, 1015, Rem. Comp. Stat.; State ex rel. Ellertsen v. Home Tel. & Tel. Co., 102 Wash. 196, 172 Pac. 899; Board of Trustees v. State, 175 Ind. 147, 93 N. E. 851; City of Bridgeton v. Bridgeton & Millville" }, { "docid": "12364434", "title": "", "text": "in good faith and without notice. There can be no question, we think, but that the title of the bank was defective. The sale was a cash transaction, in which the passage of title depended upon payment; and it is well settled that, in the absence of special agreement to the contrary, a check is conditional payment only and does not operate to effect payment unless it is itself paid. Cleve v. Craven Chemical Co., supra (C. C. A. 4th) 18 F.(2d) 711, 712, 52 A. L. R. 980; Little v. Mangum (C. C. A. 4th) 17 F.(2d) 44; Philadelphia Life Ins. Co. v. Hayworth (C. C. A. 4th) 296 F. 339; Morris v. Cleve, supra, 197 N. C. 253, 148 S. E. 253, 259; Hayworth v. Philadelphia Life Ins. Co., 190 N. C. 757, 130 S. E. 612, 613. The rule that a check of a debtor is merely conditional payment applies to obligations arising out of immediate transactions, as well as to payment of antecedent debts; and, where there is a sale for cash on delivery, and payment is made by check of the buyer, such check constitutes only conditional payment. Until the check is itself paid, the title, as between the parties, passes only conditionally; and, upon dishonor of the check, the seller may rescind the transaction and reclaim that with which he has parted. See 21 R. C. L. 64; notes to 31 A. L. R. 578 and 54 A. L. R. 526 and cases cited, and particularly In re A. O. Brown & Co. (D. C.) 189 F. 442; Young v. Harris-Cortner Co., 152 Tenn. 15, 268 S. W. 125, 54 A. L. R. 516; Comer v. Cunningham, 77 N. Y. 391, 33 Am. Rep. 626; Hodgson v. Barrett, 33 Ohio St. 63, 31 Am. Rep. 527; First Nat. Bank v. Griffin & Griffin, 31 Okl. 382, 120 P. 595, 596, 49 L. R. A. (N. S.) 1020; People’s State Bank v. Brown, 80 Kan. 520, 103 P. 102, 23 L. R. A. (N. S.) 824; Johnson-Brinkman Commission Co. v. Central Bank, 116 Mo. 558," }, { "docid": "4359279", "title": "", "text": "N. E. 655, which is strongly x'elied upon for the contrary view, can have little vitality after the Aitow decision. As to “earned” money the surety has been given priority over an assignee of the contractor by the great weight of authority. Prairie State Nat. Bank v. United States, 164 U. S. 227, 17 S. Ct. 142, 41 L. Ed. 412; Henningsen v. U. S. Fidelity & G. Co., 208 U. S. 404, 28 S. Ct. 389, 52 L Ed. 547; Hardaway v. Nat. Surety Co., 211 U. S. 553, 29 S. Ct. 202, 53 L. Ed. 321; Lacy v. Maryland Casualty Co., 32 F.(2d) 48, 51 (C. C. A. 4); 45 A. L. R. 379, note. As stated in the Lacy opinion, the surety upon completion of the contract is subrogated to all rights of the obligee (owner) as against the principal, and since the owner upon the principal’s default is entitled to apply all retained moneys toward performance of the contract, the surety by subrogation gets the same right so far as necessary to reimburse his loss. The retained percentages are regarded as security to the owner for completion of the contract, and to this security the surety is subrogated when he performs the principal’s obligation by completing the work. It is true that the cases above cited dealt with assignees and that the money advanced by them was not traced into labor or material used in the wox-k. Where it is so traced the assignee urges that, like a lienor, it is in a stronger position than a mere assignee to urge an equity superior to the surety since this labor or material may be said to have created the fund the surety is claiming. The argument has been rejected as to assignees whose loans were traced into the work. Farmers’ Bank v. Hayes, 58 F.(2d) 34 (C. C. A. 6); Ohio ex rel. Southern Surety Co. v. Schlesinger, 114 Ohio St. 323, 151 N. E. 177, 45 A. L. R. 371; but cf. American Surety Co. v. Bellingham Nat. Bank, 254 F. 54 (C. C. A." }, { "docid": "3619846", "title": "", "text": "Etablissements V. D. & Cie, 177 La. 829, 149 So. 492; McCusker v. Commonwealth Cas. Co., 106 N. J. 116, 148 A. 897; State v. Schmoll (Mo. App.) 37 S.W.(2d) 972; Smith v. Lathrop, 44 Pa. 326, 84. Am. Dec. 448; Delk v. Yelton, 103 Tenn. 476, 53 S. W. 729; Southern Railway v. Brigman, 95 Tenn. 624, 32 S. W. 762; Souter v. Baymore, 7 Pa. 415, 47 Am. Dec. 518; Bryar v. Campbell, 177 U. S. 649, 654, 20 S. Ct. 794, 44 L. Ed. 926 (Pa. judg.) ; Edwards v. Bodkin (D. C. Cal.) 267 F. 1004 (Cal. judg.); Blue Goose Min. Co. v. Northern Light Min. Co. (C. C. A. 9) 245 F. 727 (Cal. judg.); Contra Costa Water Co. v. City of Oakland (C. C. Cal.) 165 F. 518, 529 (Cal. judg.); Tampa W. W. Co. v. City of Tampa (C. C. Fla.) 124 F. 932; Eastern Bldg. & L. Ass’n v. Welling (C. C. S. C.) 103 F. 352; Sharon v. Hill (C. C. Cal.) 26 F. 337 (Cal. judg.). Reed v. Allen, 286 U. S. 191, 199-201, 52 S. Ct. 532, 76 L. Ed. 1054, 81 A. L. R. 703; Deposit Bank v. Frankford, 191 U. S. 499, 508-512, 24 S. Ct. 154, 48 L. Ed. 276; Crescent City Live Stock Co. v. Butchers’ Union S. H. Co., 120 U. S. 141, 152-153, 7 S. Ct. 472, 30 L. Ed. 614 ; Ransom v. City of Pierre (C. C. A. 8) 101 F. 665, 669; By-Products Recovery Co. v. Mabee (D. C. Ohio) 288 F. 401; Walz v. Agricultural Ins. Co. (D. C. Mich.) 282 F. 646; Straus v. American Publishers’ Ass’n (C. C. A. 2) 201 F. 306, 310; Oregonian Ry. Co. v. Oregon Ry. & N. Co. (C. C. Or.) 27 F. 277, 284; Smith v. Schreiner, 86 Wis. 19, 56 N. W. 160, 39 Am. St. Rep. 869; Parkhurst v. Berdell (Ct. App. N. Y.) 110 N. Y. 386, 18 N. E. 123, 6 Am. St. Rep. 384; State v. Spratt, 150 Minn. 5, 184 N. W. 31; Watson v." }, { "docid": "8840239", "title": "", "text": "59 C. C. A. 73; Murray v. Bender, 125 Fed. 705, 60 C. C. A. 473, 63 L. R. A. 783; Hopewell Mills v. Taunton Savings Bank, 150 Mass. 519, 23 N. E. 327, 6 L. R. A. 249, 15 Am. St. Rep. 235; Voorhis v. Freeman, 2 Watts & S. 116, 37 Am. Dec. 490; Potter v. Cromwell, 40 N. Y. 287, 100 Am. Dec. 485; McRae v. Central National Co., 66 N. Y. 489; Pond Mach. Tool Co. v. Robinson, 38 Minn. 272, 37 N. W. 99; Dudley v. Hurst, 67 Md. 44, 8 Atl. 901, 1 Am. St. Rep. 368; Fifield v. Farmers’ Nat. Bank, 148 Ill. 163, 35 N. E. 802, 39 Am. St. Rep. 166; Delaware, L. & W. R. Co. v. Oxford Iron Co., 36 N. J. Eq. 452; Coleman v. Stearns Mfg. Co., 38 Mich. 40; Longbottom v. Berry, L. R. 5 Q. B. 123; Holland v. Hodgson, L. R. 7 C. P. 334 (in Exch. Chamb.). Counsel for the appellant contends, however, that, although there is no statute of Ohio which controls the determination whether a thing is a fixture, .yet the Supreme Court of the state has settled the law of the state otherwise than as we understand the general rule to be. In Allison v. McCune, 15 Ohio, 726, 45 Am. Dec. 605, a mortgagee of a mill site described by metes and bounds, “with all appurtenances,” brought suit against an execution creditor who had levied upon and removed the machinery of a steam grist and saw mill standing on the mortgaged premises, for the impairment of the mortgagee’s security. The question was whether the machinery was personalty or fixtures belonging to the realty. The court held that it was part of the realty, and gave judgment for the plaintiff; saying, “The evidence shows it was placed there for permanent use; that it was attached to the mill and the freehold.” The next case, which is one principally relied upon by the appellant, is Teaff v. Hewitt, 1 Ohio St. 511, 59 Am. Dec. 634. This, also, was a suit" }, { "docid": "11962382", "title": "", "text": "St. Louis, 101 U. S. 306, 25 L. Ed. 999. No particular form is necessary provided there is shown an intention to appropriate on the one hand and to receive on the other. Barnes v. Alexander, 232 U. S. 117, 120-122, 34 S. Ct. 276, 58 L. Ed. 530; Laclede Bank v. Schuler, 120 U. S. 511, 7 S. Ct. 644, 30 L. Ed. 704; Spain v. Hamilton, 1 Wall. 604, 624, 17 L. Ed. 619; Hinkle v. Wanzer, 17 How. 353, 367, 15 L. Ed. 173; Tiernan v. Jackson, 5 Pet. 580, 593, 8 L. Ed. 234; In re Dier, 296 F. 816, 819 (C. C. A. 3); In re Interborough Consol. Corp., 288 F. 334, 349, 32 A. L. R. 932 (C. C. A. 2). In proving such intention, the parties are not confined to the instrument itself if it be part only of an entire transaction, but they may shd'w the entire situation of which the instrument was a part. Walker v. Brown, 165 U. S. 654, 664; 17 S. Ct. 453, 41 L. Ed. 865; Fourth Street Bank v. Yardley, 165 U. S. 634, 644, 653, 17 S. Ct. 439, 41 L. Ed. 855; Tiernan v. Jackson, 5 Pet. 580, 595, 596, 598, 8 L. Ed. 234. Of course, this intention must be mutual and not confined to one of the parties to the transaction. Scharnberg v. Citizens’ Nat. Bank, 33 F.(2d) 673, 674 (C. C. A. 8). The bare instrument alone is not an assignment of these policies. It contains neither words <?f appropriation or of transfer nor any provision for deposit of the policies with the bank as collateral or for any purpose. Standing alone it is merely a promise by the debtor to pay from any proceeds he may realize from policies which are identified. While the omission of such provisions is significant when it is considered that this instrument was drawn by an official of the bank, who must have been familiar with transactions involving security for indebtedness, yet if the parties in connection with the instrument and following their conception of" }, { "docid": "719982", "title": "", "text": "not contribute to his death, and therefore plaintiffs were entitled to recover on the poliey under the provisions of section 40 — 330, Kan. Rev. St. 1923, which reads as follows: “No misrepresentation made in obtaining or. securing a policy of insurance on the life or lives of any person or persons, citizens of this state, shall be deemed material or render the policy void unless the matter misrepresented shall have actually contributed to the contingency or event on which the policy is to become due and payable.” The above quoted provision in the second application, which became a part of the insurance contract, created certain conditions precedent to the taking effect of the insurance coverage which are valid and enforceable. Person v. Ætna L. I. Co. (C. C. A. 8) 32 F.(2d) 459; Paine v. Pacific Mut. L. I. Co. (C. C. A. 8) 51 F. 689; Ætna L. I. Co. v. Johnson (C. C. A. 8) 13 F.(2d) 824; New York L. I. Co. v. Griffith (C. C. A. 10) 35 F.(2d) 945; Logan v. New York L. I. Co., 107 Wash. 253, 181 P. 906; New York L. I. Co. v. Wertheimer (D. C. Ohio) 272 F. 730; Federal L. I. Co. v. Wright (Tex. Civ. App.) 230 S. W. 795, 799, 800; Hruska v. Prudential L. I. Co., 203 Iowa, 1165, 211 N. W. 858-9; American Nat. I. Co. v. Wiggins (Tex. Civ. App.) 4 S.W.(2d) 595; American Bankers’ I. Co. v. Thomas, 53 Okl. 11, 154 P. 44; Jones v. New York L. I. Co., 69 Utah, 172, 253 P. 200; note, 17 L. R. A. (N. S.) 1144; 37 C. J. p. 400, § 73. Where a policy of life insurance contains such a condition precedent, performance (Ellis v. State Mutual L. A. Co., 206 Ill. App. 226; Reese v. Fidelity Mutual L. Ass’n, 111 Ga. 482, 36 S. E. 637; Anders v. Life Insurance Clearing Co., 62 Neb. 585, 87 N. W. 331; Stringham v. Mutual Ins. Co., 44 Or. 447, 75 P. 822) or waiver (37 C. J. p. 400, § 73;" }, { "docid": "5938086", "title": "", "text": "of March 29th is not an assignment at all. At most it is merely a direction to Harned to mail checks for future estimates to the bank until further notice. It is clear that it was so understood both by Harned and the bank, and that its claimed effect as an assignment was merely an afterthought. Granted that, if the intent be clear, no particular phraseology need be used to effect an assignment, yet an intent to transfer must be manifest and the assignor must not retain any control over the fund or any power of revocation. Farmers’ Bank v. Blount, 8 F.(2d) 443 (C. C. A. 4). Nor does the assignment by Hayes to the surety prevent removal of the cause to the federal court. The rights of the surety grow out of the contract and bond by way of subrogation (hereinafter discussed) independent of such assignment. The assignment is in aid of the surety’s equitable right, it does not destroy it or take it away. New Orleans v. Gaines, 138 U. S. 595, 11 S. Ct. 428, 34 L. Ed. 1102; Fidelity & Deposit Co. v. Claiborne (D. C.) 11 F.(2d) 404. The District Court was right in overruling the several motions to remand. Upon the merits, the right of the surety to the fund here in dispute is settled by a long line of federal and state cases, of which it is sufficient to cite Prairie State Nat. Bank v. U. S., 164 U. S. 227, 17 S. Ct. 142, 41 L. Ed. 412; Henningsen v. United States Fidelity & Guaranty Co., 208 U. S. 404, 28 S. Ct. 389, 52 L. Ed. 547; First National Bank v. City Trust, Safe Deposit & Surety Co., 114 F. 529 (C. C. A. 9); Lacy v. Maryland Casualty Co., 32 F. (2d) 48 (C. C. A. 4); Fidelity & Deposit Co. v. Claiborne Parish School Board (D. C.) 35 F.(2d) 376, affirmed by 40 F.(2d) 577 (C. C. A. 5); Ohio ex rel. Southern Surety Co. v. Schlesinger, 114 Ohio St. 323, 151 N. E. 177, note in 45" }, { "docid": "23606835", "title": "", "text": "& Collection Co. v. Harrell, supra; Guitron v. Rodriguez, supra; Fayette-Kanawha Coal Co. v. Lake & Export Coal Corp., supra; Indiana Life Endowment Co. v. Reed, supra; Bannister v. Victoria C. & C. Co., supra. Bannister v. Victoria C. & C. Co., 63 W. Va. 502, 61 S. E. 338; Armstrong v. Ross, 61 W. Va. 38, 55 S. E. 895, 899; Indiana Life Endowment Co. v. Reed, 54 Ind. App. 450, 103 N. E. 77, 81; Southern Pub. Ass’n v. Clements Paper Co., 139 Tenn. 429, 201 S. W. 745, 747, L. R. A. 1918D, 580. Schunk v. Moline, Milburn & Stoddard Co, 147 U. S. 500, 504, 507, 13 S. Ct. 416, 37 L. Ed. 255; Smithers v. Smith, 204 U. S. 632, 642-644, 27 S. Ct. 297, 51 L. Ed. 656; Barry v. Edmunds, 116 U. S. 550, 559-562, 6 S. Ct. 501, 29 L. Ed. 729; Greene County Bank v. J. H. Teasdale Commission Co. (C. C. Mo.) 112 F. 801, 802-804; Owen M. Bruner Co. v. O. R. Manefee Lbr. Co. (C. C. A. 9) 292 F. 985; Central Commercial Co. v. Jones-Dusenbury Co. (C. C. A. 7) 251 F. 13,18; Lilienthal v. McCormick (C. C. A. 9) 117 F. 89, 95; Kunkel v. Brown (O. O. A. 4) 99 F. 593, 594, 596; Home Life Ins. Co. v. Sipp (C. C. A. 3) 11 F.(2d) 474, 476; Schlosser V. Welsh (D. C. S. D.) 5 F. Supp. 993. Baltimore & Ohio S. W. R. Co. v. United States, 220 U. S. 94, 106, 31 S. Ct. 368, 55 L. Ed. 384; Yates v. Whyel Coke Co. (C. C. A. 6) 221 F. 603, 606; Heffner v. Gwynne-Treadwell Cotton Co. (C. C. A. 8) 160 F. 635, 638; Commercial Nat. Bank of Los Angeles v. Catron (C. C. A. 10) 50 F.(2d) 1023, 1025." }, { "docid": "5938087", "title": "", "text": "11 S. Ct. 428, 34 L. Ed. 1102; Fidelity & Deposit Co. v. Claiborne (D. C.) 11 F.(2d) 404. The District Court was right in overruling the several motions to remand. Upon the merits, the right of the surety to the fund here in dispute is settled by a long line of federal and state cases, of which it is sufficient to cite Prairie State Nat. Bank v. U. S., 164 U. S. 227, 17 S. Ct. 142, 41 L. Ed. 412; Henningsen v. United States Fidelity & Guaranty Co., 208 U. S. 404, 28 S. Ct. 389, 52 L. Ed. 547; First National Bank v. City Trust, Safe Deposit & Surety Co., 114 F. 529 (C. C. A. 9); Lacy v. Maryland Casualty Co., 32 F. (2d) 48 (C. C. A. 4); Fidelity & Deposit Co. v. Claiborne Parish School Board (D. C.) 35 F.(2d) 376, affirmed by 40 F.(2d) 577 (C. C. A. 5); Ohio ex rel. Southern Surety Co. v. Schlesinger, 114 Ohio St. 323, 151 N. E. 177, note in 45 A. L. R. 371. This is on the principle that a surety who gives bond to the owner to insure performance of a building contract by the contractor is subrogated to the rights of the owner in the percentage which the owner retains as security for the performance of the contract when upon default by the contractor the surety performs, as in the Prairie State Nat. Bank Case, or on the principle that when the contractor performs his obligation to the owner, but fails to pay Jabor and materialmen, and the surety is obliged to do so under His bond, the surety is subrogated to the liens of laborers and materialmen upon the fund reserved by the owner, as in the Henningsen Case. The distinction between the Prairie Bank and Henningsen Cases is pointed out by this court in Belknap Hardware & Mfg. Co. v. Ohio River Contract Co., 271 F. 144. But, whether in the instant ease the surety’s rights arise out of subrogation to the rights of the board of trust or of" }, { "docid": "6001440", "title": "", "text": "Traction Co., 62 N. J. Law, 592, 43 Atl. 715, 45 L. R. A. 837; City of Emporia v. Emporia Ry. & Light Co., 92 Kan. 232, 139 Pac. 1185; Potwin Place v. Topeka Ry. Co., 51 Kan. 609, 33 Pac. 309, 37 Am. St. Rep. 312; Rutherford v Hudson River Traction Co., 73 N. J. Law, 227, 63 Atl. 84; State ex rel. Grinsfelder v. Spokane St. Ry Co., 19 Wash. 518, 53 Pac. 719, 41 L. R. A. 515, 67 Am. St. Rep. 739; State ex rel. Lewis v. Hodge, 90 Wash. 487, 156 Pac. 404; People v. N. Y. C. & H. R. R. R. Co., 28 Hun, (N. Y.) 543; State ex rel. J. A. Dennison v. Seattle, Renton & So. Ry. Co., 64 Wash. 167, 116 Pac. 638; State ex rel. Linhoff v. S. R. & S. Ry. Co., 62 Wash. 544, 114 Pac. 431; State ex rel. City of Seattle v. S. & R. V. Ry. Co., 113 Wash. 684, 194 Pac. 820, 15 A. L. R. 1194; Bailey on Habeas Corpus, etc., vol. 2, pp. 776, 777; Kelly v. Grand Circle W of W. (C. C.) 129 Fed. 830; Bath County v. Amy, 13 Wall. 244, 20 L. Ed. 539; Mystic Milling Co. v. Chi., M. & St. P. Ry. Co. (C. C.) 132 Fed. 289; Indiana v. Lake Erie & W. R. Co. (C. C.) 85 Fed. 1; Robinson v. Campbell, 3 Wheat. 212, 4 L. Ed. 372, 376; Thompson v. Central Ohio R. R. Co., 73 U. S. (6 Wall.) 134, 18 L. Ed. 765, 767; Smith v. Bourbon County, 127 U. S. 105, 8 Sup. Ct. 1043, 32 L. Ed. 73, 77; Moloney v. Cressler, 210 Fed. 104, 126 C. C. A. 618; Thayer et al. v. Life Ass’n of America, W. A. Ralfe, et al., 112 U. S. 717, 5 Sup. Ct. 355, 28 L. Ed. 864; Remington, Comp. Stat. § 1026; Id. § 8966, subd. 7; Hebb v. County Court, 48 W. Va. 279, 37 S. E. 676; West Va. Northern R. Co. v. U. S., 134 Fed." }, { "docid": "2590034", "title": "", "text": "Co., 85 F. 786 (C. C. Ill.); Chadeloid Chemical Co. v. H. B. Chalmers Co., 243 F. 606 (C. C. A. 2); National Cash Register Co. v. Remington Arms Co., 242 N. Y. 99, 151 N. E. 144; Walker on Pat ents, § 323; King v. Gannon, 261 Mass. 94, 158 N. E. 346, 54 A. L. R. 1215; Monsanto Chem. Works v. Jaeger, 31 F.(2d) 188 (D. C. Pa.); New Jersey Zinc Co. v. Singmaster, 4 F. Supp. 967 (D. C.); Standard Plunger El. Co. v. Stokes, 212 F. 893 (C. C. A. 2); Aspinwall Mfg. Co. v. Gill, 32 F. 697 (C. C. N. J.); T. B. Harms, etc., v. Stern, 229 F. 42 (C. C. A. 2); Corpus Juris, Patents, § 376; Federal Law of Contracts, § 272. Oregon Steam Navigation Co. v. Winsor, 20 Wall. (87 U. S.) 64, 22 L. Ed. 315; Williston on Contracts, § 1659; Prame v. Ferrell, 166 F. 702 (C. C. A. 6); Hill v. Central West Public Service Co., 37 F.(2d) 451 (C. C. A. 5); Edgecomb v. Edmonston, 257 Mass. 12, 153 N. E. 99 (1926); Monongahela River Cons. Coal & Coke Co. v. Jutte, 210 Pa. 288, 59 A. 1088, 105 Am. St. Rep. 812, 2 Ann. Cas. 951; Smith’s Appeal, 113 Pa. 579, 6 A. 251; 117 Am. St. Rep. page 499, note; Wiley v. Baumgardner, 97 Ind. 66, 49 Am. Rep. 427; Tarry y. Johnston, 114 Neb. 496, 208 N. W. 615; Goldsoll v. Goldman, [1914] L. R. 2 Chan. 603; A. B. Dick Co. v. Fuller, 198 F. 404 (D. C. N. Y.); Stanley Co. v. Lagomarsino, 53 F.(2d) 112 (D. C. N. Y.) reversed on other grounds. Contracts held indivisible. Gibson v. Campbell, 49 N. B. 185 (1922); Consumers’ Oil Co. v. Nunnemaker, 142 Ind. 560, 41 N. E. 1048, 51 Am. St. Rep. 193; Emler v. Feme, 23 Ohio App. 218, 155 N. E. 496 (1926)." }, { "docid": "3619847", "title": "", "text": "judg.). Reed v. Allen, 286 U. S. 191, 199-201, 52 S. Ct. 532, 76 L. Ed. 1054, 81 A. L. R. 703; Deposit Bank v. Frankford, 191 U. S. 499, 508-512, 24 S. Ct. 154, 48 L. Ed. 276; Crescent City Live Stock Co. v. Butchers’ Union S. H. Co., 120 U. S. 141, 152-153, 7 S. Ct. 472, 30 L. Ed. 614 ; Ransom v. City of Pierre (C. C. A. 8) 101 F. 665, 669; By-Products Recovery Co. v. Mabee (D. C. Ohio) 288 F. 401; Walz v. Agricultural Ins. Co. (D. C. Mich.) 282 F. 646; Straus v. American Publishers’ Ass’n (C. C. A. 2) 201 F. 306, 310; Oregonian Ry. Co. v. Oregon Ry. & N. Co. (C. C. Or.) 27 F. 277, 284; Smith v. Schreiner, 86 Wis. 19, 56 N. W. 160, 39 Am. St. Rep. 869; Parkhurst v. Berdell (Ct. App. N. Y.) 110 N. Y. 386, 18 N. E. 123, 6 Am. St. Rep. 384; State v. Spratt, 150 Minn. 5, 184 N. W. 31; Watson v. Richardson, 110 Iowa, 698, 80 N. W. 416, 80 Am. St. Rep. 331; Scott v. Wilson, 150 Iowa, 202, 129 N. W. 812; Moore v. Williams, 132 Ill. 591, 24 N. E. 617, 619; People v. Rickert, 150 Ill. 496, 42 N. E. 884, 886; Wilcox Trux v. Rosenberger, 169 Minn. 39, 209 N. W. 308, 310, 211 N. W. 822; Boynton v. Chicago Mill & Lbr. Co., 84 Ark. 203, 105 S. W. 77; Corinth Bk. & T. Co. v. Lawler, 218 Ala. 83, 117 So. 620; Collier v. Alexander, 142 Ala. 422, 38 So. 244; Reese v. Damato, 44 Fla. 692, 33 So. 462; Seattle Nat. Co. v. Gilmore, 167 Wash. 102, 9 P.(2d) 95, 98; Kaufman v. Klain, 69 Wash. 113, 124 P. 391, 392; Jaloff v. United Auto Indemnity Exchange, 121 Or. 187, 253 P. 883, 886; Messing v. Faulkner, 83 Kan. 115, 109 P. 1001, 1002." }, { "docid": "14151203", "title": "", "text": "Fed. 606, 615, 83 C. C. A. 380; Railway Co. v. Volkert, 58 Ohio St. 362, 50 N. E. 924; Line v. McCall, 126 Mich. 497, 507, 85 N. W. 1089; James v. Newton, 142 Mass. 366, 377, et seq., 8 N. E. 122, 56 Am. Rep. 692; Lanigan v. Bradley Co., 50 N. J. Eq. 201, 204, et seq., 24 Atl. 505; Exchange Bank v. McLoon, 73 Me. 498, 505, et seq., 40 Am. Rep. 388; Alexander v. Munroe, 54 Or. 500, 509, et seq., 101 Pac. 903, 103 Pac. 514, 135 Am. St. Rep. 840. And see The Elmbank (D. C.) 72 Fed. 610, 614 (opinion by Judge Morrow). On the point generally that an assignment of a chose in action as security merely is enforceable in equity, see Curtis v. Walpole (C. C. A. 1) 218 Fed. 145, 147, et seq., 134 C. C. A. 140. We find nothing to the contrary of this rule in the earlier cases of Kendall v. United States, 74 U. S. (7 Wall.) 113, 116, 19 L. Ed. 85, and Mandeville v. Welch, 5 Wheat. 277, 288, 5 L. Ed. 87, especially when the facts of those cases are taken into account. (c) The traction company contends that in any event equity-requires, as a condition precedent to relief to those appellees, that the proceeding for review by this court of the judgment of the District Court should be reinstated. We cannot assent to this proposition. Appellees had nothing to do with the dismissal of the writ of error or with the discharge of the judgment entered in the District Court. Those steps were part and parcel of a settlement with which they had nothing to do, and as to which they were not consulted, except as some or all of them were asked to authorize John Brogan to act for them. It is true that before the settlement the judgment was subject to reversal, and in such event to the expense and risk of a new trial. But, as the case then stood, the plaintiffs in the judgment, as well as" } ]

[ { "docid": "1200405", "title": "", "text": "was granted a 30 day extension of time in which to file its complaint. If the 30 days are counted from the date of the hearing, August 6, 1987, the date of the 30th day of the period in which the complaint could be filed was September 5,1987. September 5, 1987 was a Saturday. Monday, September 7, 1987 was a legal holiday, Labor Day. Thus, the last day the complaint could be filed was September 8, 1987, and this is the date the Clerk’s Office received the complaint and file-stamped it. The complaint did arrive within the time alloted by the Court order, as calculated according to Rule 9006(a). In his brief, Debtor also argues that the failure of Plaintiff to pay the filing fee by September 8, 1987 renders the filing of the complaint late. The case of In re Michael Spearman, 68 B.R. 25 (Bankr.E.D.N.Y.1987) is instructive. The complaint in Spearman was filed on the last day of the allowed time, but not docketed until the fee was paid later. The Court held that the complaint was timely filed. “The critical act was the filing of the complaint, not the filing of the fee. Payment of filing fees is not jurisdictional.” Id. at 26. Other courts have reached similar conclusions, In re Elijah Whitfield, 41 B.R. 734 (Bankr.W.D.Ark.1984); In re Norman, 49 B.R. 796 (Bankr.W.D.La.1985). This conclusion is also supported by Fed.R.Civ.P. 3, which states that a “civil action is commenced by filing a complaint with the court.” (See, e.g., 2 Moore’s Federal Practice 113.04 at 3-18). Under Bankruptcy Rule 7003, Fed. R.Civ.P. 3 applies to this adversary proceeding. Thus, the complaint was properly filed in this case on September 8, 1987. The delay in completing the processing of the complaint until September 30, 1987 by the Clerk’s Office has no affect on the substantive rights of creditor to pursue its remedies under the Bankruptcy Code. IT IS ORDERED, that the motion by Phoenix Federal Savings for reconsideration in A87-381 (Fil. # 7) is sustained, and the Court’s Order of January 15, 1981 (Fil. #24 in BK87-666) is" } ]

[ { "docid": "13928609", "title": "", "text": "OPINION MOOREMAN, Bankruptcy Judge: The Debtor appeals the bankruptcy court’s orders denying three separate motions to dismiss the appellees’ nondis-chargeability complaints and complaints objecting to discharge. We affirm. FACTS On September 10, 1987, the Debtor LaV-era Burns (“Debtor”) filed a voluntary Chapter 7 petition. On September 16, 1987, the bankruptcy court clerk issued an order setting the first meeting of creditors for October 20, 1987. Additionally, the order included a notice to all creditors setting the last date to file complaints seeking nondischargeability of claims (“the bar date”), for December 21, 1987. Since the sixtieth day following October 20th fell on Saturday, December 19th, the bankruptcy clerk, set the bar date for the following Monday, December 21, 1987. On December 21,1987, the appellees, Leisure Development Inc., Frank G. Sweeney, and Beverly Hills Savings filed nondis-chargeability complaints pursuant to 11 U.S.C. § 523(c) and complaints objecting to the discharge under 11 U.S.C. § 727. The Debtor answered the Complaint on January 20, 1988, and asserted no affirmative defense at that time. Three months after the passing of the bar date, the Debtor filed a motion to dismiss the appellees’ complaints arguing that pursuant to Bankruptcy Rules (hereinafter “Rules”) 4007(c) and 4004(a) the actual 60 days allowed to file nondis-chargeability complaints and complaints objecting to discharge ended on Saturday, December 19, 1987. Additionally, the Debtor argued that Rule 9006(a) does not extend the time to file such complaints. The bankruptcy court denied the Debt- or’s motion and determined that the computation of time prescribed in Bankruptcy Rule 9006(a) does apply to the time limits set in Rules 4004(a) and 4007(c). Accordingly, the court concluded that the correct bar date was December 21, 1987, and denied the Debtor’s motions to dismiss the underlying complaints. DISCUSSION The Debtor in this case contends that Rule 9006(a) does not apply to the calculation of time in determining the bar date as set forth in Rules 4004(a) and 4007(c). In support of this argument, the Debtor essentially relies on the rationale of the Sixth Circuit’s opinion in In re Butcher, 829 F.2d 596 (6th Cir.1987). The Butcher" }, { "docid": "4786224", "title": "", "text": "unequivocally that the clerk, not the judge, shall provide notice of the bar date for dischargeability complaints: [T]he clerk ... shall give the debtor, all creditors and indenture trustees notice by mail of ... (5) the time fixed for filing a complaint objecting to the debtor's discharge pursuant to § 727 of the Code as provided in Rule 4004; (6) the time fixed for filing a complaint to determine the dischargeability of a debt pursuant to § 523 of the Code as provided in Rule 4007. Bankr.R. 2002(f)(6) (emphasis supplied). Therefore, this court agrees with the line of cases allowing untimely complaints when the creditor had relied on erroneous information from the clerk’s office. See, e.g., In re Anwiler; 115 B.R. 661 (9th Cir.BAP 1990); In re Schoofs, supra; In re Hershkovitz, 101 B.R. 816, 819 (Bankr.N.D.Ga.1989); In re Sibley, 71 B.R. 147, 148-49 (Bankr.D.Mass.1987); In re Schwartz & Meyers, 64 B.R. 948, 955 (Bankr.S.D.N.Y.1986); In re Hickey, 58 B.R. 106, 108-09 (Bankr.S.D.Oh.1986); see also 8 Collier on Bankruptcy ¶ 4007.05[2], at 4007-13 n. 28 (rule that actual notice of bankruptcy sufficient to establish notice of bar date subject to limited exception when clerk has affirmatively provided notice of incorrect bar date) (citing Hershkovitz, supra). The fact that the erroneous bar date published by the clerk’s office conflicts with a procedural rule is immaterial where the same rules provide that the notice of the bar date is to come from the clerk’s office. Indeed, the “notice requirement ... negates any presumption that creditors are familiar with the time limitation provided by [the rules].” Schwartz & Meyers, 64 B.R. at 953. Moreover, this court is not inclined to view the action of an official of the court, regularly taken, as one which may be considered as detached from the institutional structure of which he is a member.... Nor should a party be responsible for a possible procedural defect in a notice or order issued by the court where the defect is not apparent from the face of the document, and such party lacks notice or knowledge of such defect. Anwiler, 115" }, { "docid": "16697369", "title": "", "text": "complaint to determine the dis-chargeability of any debt pursuant to § 523(c) of the Code shall be filed not later than 60 days following the first date set for the meeting of creditors held pursuant to § 341(a). The court shall give all creditors not less than 30 days notice of the time so fixed in the manner provided by Rule 2002. On motion of any party in interest, after hearing on notice, the court may for cause extend the time fixed under this subdivision. The motion shall be made before the time has expired. (Emphasis added.) Bankruptcy Rule 4004 provides essentially identical requirements regarding complaints objecting to a debt- or’s discharge. The Bankruptcy Rules thus establish “the first date set” for the meeting of creditors pursuant to 11 U.S.C. § 341(a) as the cornerstone for determining the bar date for filing discharge and dischargeability complaints, regardless of whether the meeting is actually held then or whether the debtor or his representative fails to appear. See, e.g., In re Rhodes, 61 B.R. 626, 628-29 (9th Cir. BAP 1986); In re Bartlett, 87 B.R. 445 (Bankr.W.D.Ky.1988). Rules 4004 and 4007(c), in conjunction with Bankruptcy Rule 9006(b)(3), plainly contemplate that the filing deadline irrevocably falls 60 days after “the first date set” unless enlargement of the filing period is sought by a party in interest before the deadline arrives. Courts are divided on whether discharge or dischargeability complaints filed after the bar date set by Bankruptcy Rules 4004(a) and 4007(c) are nevertheless timely when the filing after the deadline is due to reliance upon erroneous information or silence about the bar date in a notice supplied by the clerk. Compare Neeley v. Murchison, 815 F.2d 345 (5th Cir.1987) (complaint dismissed even though notice left space for bar date blank and attorneys relied upon verbal assurance by employees of clerk’s office that no bar date set); In re Kearney, 105 B.R. 260 (Bankr.E.D.Pa.1989) (complaint dismissed even though untimely filing was due to reliance upon erroneous notice of bar date by clerk of court); and In re Anwiler, 99 B.R. 41 (Bankr.S.D.Cal.1989) (change of" }, { "docid": "13928610", "title": "", "text": "of the bar date, the Debtor filed a motion to dismiss the appellees’ complaints arguing that pursuant to Bankruptcy Rules (hereinafter “Rules”) 4007(c) and 4004(a) the actual 60 days allowed to file nondis-chargeability complaints and complaints objecting to discharge ended on Saturday, December 19, 1987. Additionally, the Debtor argued that Rule 9006(a) does not extend the time to file such complaints. The bankruptcy court denied the Debt- or’s motion and determined that the computation of time prescribed in Bankruptcy Rule 9006(a) does apply to the time limits set in Rules 4004(a) and 4007(c). Accordingly, the court concluded that the correct bar date was December 21, 1987, and denied the Debtor’s motions to dismiss the underlying complaints. DISCUSSION The Debtor in this case contends that Rule 9006(a) does not apply to the calculation of time in determining the bar date as set forth in Rules 4004(a) and 4007(c). In support of this argument, the Debtor essentially relies on the rationale of the Sixth Circuit’s opinion in In re Butcher, 829 F.2d 596 (6th Cir.1987). The Butcher case involved a trustee who sought to avoid alleged preferential and fraudulent transfers pursuant to 11 U.S.C. § 547 and § 548(a). Section 546 specifically states that the trustee has two years after the date appointed in which to file a complaint under § 547 and § 548. In determining that Rule 9006(a) does not apply to the two year “statute of limitations” set forth in § 546, the Sixth Circuit relied on the distinction between procedural matters and those effecting substantive rights. Id at 599-601. The present case is distinguishable from the Butcher case in that the Ninth Circuit has specifically held that the time limitation under Rule 4007(c) involves a “procedural matter” and does not amount to a “statute of limitations.” In re Hill, 811 F.2d 484, 487 (9th Cir.1987). Since Rule 4007(c) and 4004(a) are “procedural” in nature, the time limits set forth therein are specifically governed by the Bankruptcy Rules. Further support for applying Rule 9006(a) to the time limitations of Rules 4004(a) and 4007(c), can be found in the Ninth" }, { "docid": "9573207", "title": "", "text": "completing the cover sheet and sending the fee, all of which was accomplished on June 12, 1986, three days beyond the bar date. Under Section 523(c) of the Code, this Court has exclusive jurisdiction to hear non-dischargeability complaints filed under Sections 523(a)(2), (4) and (6). In Re Aldrich, 34 B.R. 776 (9th Cir.1983). A complaint must be filed in the Bankruptcy Court within the time period set by the Court. Id. at 779; Bankruptcy Rule 4007(c). Rule 4007(c) provides that a complaint to determine the dischargeability of any debt pursuant to Section 523(a) shall be filed not later than 60 days following the first date set for the meeting of creditors held pursuant to Section 341(a). The Court may extend such time if a motion is made before the time for filing the complaint has expired. It is the duty of the Clerk under Rule 5005(a) to file such complaint upon receipt. Under 5005(b), where a complaint is erroneously delivered to a party other than the Clerk of the Bankruptcy Court, a court may, in the interest of justice, order the paper to be deemed filed as of the date of its original delivery. Subsection (b) has no application to the facts of this case. The complaint was received, but not filed, by the Clerk within the bar date. The Clerk obviously failed to file the complaint because the requirements of local District Bankruptcy Court Rules require a cover sheet and the filing fee. The Clerk evidently believed that rule 125-2, Rules of Procedure of the United States District Court for the District of Montana was adopted by reference by Rule 13, United States Bankruptcy Court for the District of Montana Local Rules so as to provide: “The Clerk shall file all papers presented for filing upon payment of proper fees.” Rule 200-1(b) of the same local rule provides the “Clerk is authorized to reject for filing any civil case which is not accompanied by a complete and executed civil cover sheet”. Rule 15, Local Bankruptcy Rules, dealing with adversary proceedings states: “Before a complaint instituting an adversary proceeding will" }, { "docid": "9980639", "title": "", "text": "least one creditor’s dischargeability complaint. This rejection by the Court Clerk improperly and unfairly denied to a creditor, its opportunity and right to challenge the discharge of its claim against the Debt- or. The question of when dischargeability complaints may be filed pursuant to Sections 523 and 727 is governed by Bankruptcy Rules 4004 and 4007 which state, in pertinent part, that objections to discharge, and requests for exceptions to discharge, must be filed not later than 60 days following the first date set for the Section 341 meeting of creditors, and a request for an extension of the 60 day period must be filed within the original 60 day time frame. This Court is also cognizant of that case law which holds that these filing deadlines should be strictly enforced and the Court has little or no discretion to enlarge the time period without a proper and timely motion filed by an interested party. See, In re Fauchier, 71 B.R. 212, 216 (9th Cir.B.A.P.1987); In re Harvey, 69 B.R. 411, 412 (N.D.Ohio 1987); In re Wilferth, 57 B.R. 693, 695 (Bankr.D.N.M.1986); In re Gardner, 55 B.R. 89, 90 (Bankr.D.D.C.1985); In re Whitfield, 41 B.R. 734, 736 (Bankr.W.D.Ark.1984). By contrast, however, see In re Tatum, 60 B.R. 335, 337 (Bankr.D.Colo.1986), where Judge Brumbaugh followed the general rule, but recognized possible exceptions to the rule if “extraordinary circumstances” warrant or the Court provides erroneous information as to a bar date on which creditors rely to their detriment. This Court, when looking at the facts and the circumstances surrounding this bankruptcy case filing, believes it is in the interest of justice to invoke the powers granted to it under Section 105(a) of the Bankruptcy Code, and follow the holding of In re Riso, 57 B.R. 789 (D.N.H.1986) so as to permit an extension of time to file an objection, or seek an exception, to the Debtor’s bankruptcy discharge. Section 105(a) provides: The court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title. No provision of this title providing for the raising" }, { "docid": "1204067", "title": "", "text": "original bar date or to timely file a complaint within that original bar date. The rule contemplates only one bar date and no authority has been presented to suggest otherwise. As Judge James S. Sledge has recently recognized, “[i]t is clearly Bankruptcy Rule 4007(c), and not the Court, that fixes the time for filing [§ 523(c)(1) ] complaints.” In re Williamson, 145 B.R. 329, 331 (Bankr.N.D.Ala.1992). This court understands the view of some courts that F.R.B.P. 4004(a) and 4007(c) require a notice of a deadline for filing certain complaints and that such notice would be meaningless unless a correct date is provided by the clerk. See, e.g., In re Schoofs, 115 B.R. 1, 3 (Bankr.D.D.C.1990). Some courts obviously construe the rules to require that a correct notice be sent by the clerk’s office. See, e.g., In re Schoofs, 115 B.R. at 3; In re Schwartz & Meyers, 64 B.R. 948 (Bankr.S.D.N.Y.1986). Other courts have viewed failure of the clerk to provide a specific bar date for § 523(c)(1) complaints as being a due process problem. See, e.g., In re Rogowski, 115 B.R. 409 (Bankr.D.Conn.1990). However, this court has difficulty seeing a due process problem or putting all of the burden upon either the clerk’s office or upon the debtor in the facts before it. It must be remembered that the debtor automatically receives a discharge for those types of debts covered by 11 U.S.C. § 523(a)(2), (4) or (6). 11 U.S.C. § 523(c)(1). Only the filing of a complaint by an affected creditor prevents this automatic discharge. The debtor would have no incentive to file such a complaint before the bar date expires. Other types of debts are automatically excepted from discharge and a complaint may be filed by any interested party to determine their dischargeability at any time. F.R.B.P. 4007(b). Why then should the debtor have an incentive or a necessity to file a motion to clarify the bar date for filing § 523(c)(1) complaints, when the Code is structured to give the debtor an automatic discharge of those types of debt? The Code clearly compels affected creditors to" }, { "docid": "4641832", "title": "", "text": "dismiss Appellee’s complaint as untimely Pursuant to Bankruptcy Rule 4007(c) a complaint to determine the dischargeability of a debt pursuant to 11 U.S.C. § 523 must be filed not later than 60 days following the first date set for the meeting of creditors. It is well settled that this deadline is calculated from the first date set for the meeting of creditors, not from the first date the meeting of creditors is actually held. In re Rhodes, 61 B.R. 626, 629 (9th Cir.BAP 1986). Rule 4007(c) further provides that a party may move for an extension of the bar date “for cause”. However, such a motion must be made before the deadline has expired. B.R. 4007(c). Bankruptcy Rule 9006 confers discretion upon a bankruptcy court to permit acts to be performed after the expiration of a time limit, if the party seeking the extension demonstrates that the lateness was the result of “excusable neglect”. B.R. 9006(b)(1). However, that rule specifically states that a court may enlarge the time for taking action under Rule 4007(c) “only to the extent and under the conditions stated in [that] rule[]”. B.R. 9006(b). Accordingly, it is well settled in this circuit that a bankruptcy court has no discretion to enlarge the time for filing a complaint to determine dischargeability if the request is made after the deadline has passed. See, e.g., In re Hill, 811 F.2d 484, 486 (9th Cir.1987); In re Ricketts, 80 B.R. 495, 496-97 (9th Cir.BAP 1987); Price, 79 B.R. at 890; In re Rhodes, 71 B.R. 206, 207 (9th Cir.BAP 1987); Rhodes, 61 B.R. at 629. As set forth above, pursuant to the bankruptcy court’s October 2, 1987 order, the first date set for the first meeting of credi tors was November 3, 1987, and the bar date for filing dischargeability complaints was set for January 7, 1988. The October 13, 1987 order established November 17, 1987 as the date for the first meeting of creditors, and January 19, 1988 as the last date for filing dischargeability complaints. The court’s October 22, 1987 order vacated its October 2, 1987 order. Both" }, { "docid": "18775746", "title": "", "text": "if filed after the deadline fixed by the Court unless an extension is granted pursuant to a motion which is filed before the expiration date. No such concept as excusable neglect exists and the rule does not permit the Court any discretion in the matter. Therefore, clearly, plaintiffs motion for an extension of time must be denied because it is untimely filed and plaintiffs amended complaint objecting to discharge must likewise be struck for the same reason. Plaintiff argues that Rule 4007(b) allows complaints other than under § 523(c) to be filed at any time, and presumably he argues that his proposed complaint is “other than under § 523(c).” Plaintiffs proposed complaint objecting to the dischargeability of a particular debt is, however, clearly governed by § 523(c) of the Code, hence plaintiff must comply with the deadline set out in Rule 4007(c). However, the Court is of the view that the original complaint objecting to discharge under § 727 (incorrectly stated as § 523) although inartfully drawn was filed within the time limit fixed by the Court. The stipulated facts are that the complaint was received by the clerk’s office on December 12, 1984 and returned on December 15, 1984 by the clerk because it was not accompanied by a bankruptcy cover sheet and a $60 filing fee. It is for this Court and not the clerk, however, to determine the legal sufficiency of documents tendered for filing. This is especially true when the actions of the clerk result to alter the substantive rights of the parties. See, In Re King, 35 B.R. 471 (Bkrtcy.N.D.Ill.1983) a case precisely in point. Here the complaint in paragraph 1 fairly states a complaint to deny the debtor a discharge for making a false oath in violation of 11 U.S.C. § 727(a)(4). The allegations in paragraph 2 are not sufficient allegations of fraud to comply with Rule 7009. Rule 9(b) of the Federal Rules of Civil Procedure requires that allegations of fraud be stated with particularity. Pleadings alleging fraud must contain explicit rather than implicit expressions of circumstances constituting fraud. King Automotive, Inc. v." }, { "docid": "18636595", "title": "", "text": "informed the attorney, after inquiry, that no such date had been set, a creditor could nonetheless not file a complaint past the 60 day period. Similarly, in In re Hill, the court would not allow the exercise of equitable power to permit a late complaint where the plaintiff relied on the clerk’s office erroneous date, one well past the 60 day limit. Accord In re Anwiler (notices of two dates for filing deadline sent by bankruptcy court clerks’ offices: first by clerk where petition originally filed, second by clerk of transferee court; change of venue prior to § 341(a) meeting was not a basis for setting new deadline and no equitable basis existed for extending the time); In re Lewis, 71 B.R. 633 (Bankr.N.D.Ill.1987) (concluding that rules 4004, 4007 and 9006(b)(3) create an absolute statute of limitation); In re Gardner, 55 B.R. 89 (Bankr.D.C.Cir.1985) (complaint untimely filed even though within time set by clerk’s office, which erroneously set date 62 days after § 341 meeting). Cf. In re Kirsch (creditor could not claim reliance on a mistaken docket; held that R. 9006(b) is jurisdictional and cannot be waived). Such decisions requiring a strict reading of the bankruptcy rules at issue are in harmony with the policies underlying the evolution of these rules, as outlined above: the need for uniformity and expeditious judicial administration of bankruptcy cases. Requiring creditors to file objections to discharge within 60 days of the date first set for the meeting of creditors furthers the “fresh start” goals of bankruptcy, requiring creditors “to promptly join their exceptions to discharge of debt and objections to discharge, so a petitioning debtor will enjoy finality and certainty and relief from financial distress as quickly as possible.” In re Harrison, 71 B.R. 457, 459 (Bankr.D.Minn.1987). See, e.g., In re Hill, 811 F.2d at 487 (the rules seek to further the prompt resolution of bankruptcies). See also In re Falk, 96 B.R. 901, 905 (Bankr.D.Minn.1989); In re Sam, 94 B.R. 893, 898 (Bankr.W.D.La.1988); Advisory Committee Note (1983) to Rule 9006 (“In the interest of prompt administration of bankruptcy cases certain time periods" }, { "docid": "18636592", "title": "", "text": "that which it formerly permitted, Congress intended to no longer subject the preeminent fresh start policy to the uncertainties of excusable neglect in failing to timely object to discharge of a claim.” In re Figueroa, 33 B.R. at 300. See also Neeley v. Murchison, 815 F.2d at 346; In re Hill, 811 F.2d at 486; In re Rhodes, 61 B.R. at 629-30; In re Kirsch, 65 B.R. 297, 300 (Bankr.N.D.Ill.1986). Accord, e.g., In re Lane, 37 B.R. 410, 414 (Bankr.E.D.Va.1984). Furthermore, for purposes of this analysis Bankruptcy Rule 4007(c) is virtually identical to Rule 4004(a), (b), and provides: A complaint to determine the discharge-ability of any debt pursuant to § 523(c) of the Code shall be filed not later than 60 days following the first date set for the meeting of creditors held pursuant to § 341(a). The court shall give all creditors not less than 30 days notice of the time so fixed in the manner provided in Rule 2002. On motion of any party in interest, after hearing on notice, the court may for cause extend the time fixed under this subdivision. The motion shall be made before the time has expired. This rule too departs from prior practice; former Rule 409(a)(2) set a limitations period of not less than 30 nor more than 90 days after the first date set for the § 341(a) meeting for filing complaints. While the court set the deadline under the former rule, the deadline is now created automatically for complaints to discharge of a debt, pursuant to § 523(a)(2), (4), and (6). Thus, decisions interpreting Rule 4007(c) are relevant to the instant controversy. In re Anwiler, 99 B.R. 41 (Bankr.S.D.Cal.1989). III. The creditor argues that the filing of this adversary proceeding should be allowed as timely because plaintiff justifiably relied on notice sent out by the bankruptcy clerk’s office. I conclude, for the reasons stated below, that this position is without merit. Numerous courts have observed, in a variety of factual settings, that notices sent by the bankruptcy clerk setting erroneous deadlines do not excuse a creditor’s failure to comply with" }, { "docid": "19248074", "title": "", "text": "ORDER LEWIS M. KILLIAN, Jr., Bankruptcy Judge. THIS MATTER came on to be heard upon the debtor/defendant’s motion to dismiss the plaintiffs complaint to determine dischargeability. The motion to dismiss is based upon the alleged untimely filing of the complaint; the debtor asserts that the complaint was filed past the deadline specified by the Bankruptcy Rule 4007(c), and that no motion to extend the filing bar date was timely filed. The Court concurs in the debtor’s discussion of the applicable law, however, notes the additional facts regarding the chronology of events as stated by the plaintiff herein, to wit: the § 523(c) complaint was received by the Clerk of Court on the filing deadline, but the Clerk postponed the filing thereof because the complaint was not accompanied by a cover sheet or filing fee, and the first page of the complaint did not have room for an adversary case number. The Clerk advised the plaintiff of these procedural defects whereupon the plaintiff submitted the revised pleading and filing fee. The complaint as revised was then filed by the Clerk on August 14, 1986, ten (10) days after the filing deadline imposed in this proceeding. There is no express code provision or rule requiring that a complaint be accompanied by a cover sheet and filing fee before the Clerk is allowed to accept it for filing. Nor does this court have a controlling local rule regarding defective pleadings. However, the court has reviewed the duties of the Clerk of Court, the policy underlying the pertinent filing deadline, and numerous cases dealing with the issue of defective pleadings. The Court concurs with the dicta in In re Whitfield, 41 B.R. 734 (AR 1984), that “It is for this Court and not the clerk, however, to determine the legal sufficiency of documents tendered for filing. This is especially true when the actions of the clerk result to alter the substantive rights of the parties.” The Court further concurs with the statement of purpose behind the filing deadlines as expressed in In the Matter of Robinson, 506 F.2d 1184, 1186 (2nd Cir.1974): The purpose" }, { "docid": "16697370", "title": "", "text": "Cir. BAP 1986); In re Bartlett, 87 B.R. 445 (Bankr.W.D.Ky.1988). Rules 4004 and 4007(c), in conjunction with Bankruptcy Rule 9006(b)(3), plainly contemplate that the filing deadline irrevocably falls 60 days after “the first date set” unless enlargement of the filing period is sought by a party in interest before the deadline arrives. Courts are divided on whether discharge or dischargeability complaints filed after the bar date set by Bankruptcy Rules 4004(a) and 4007(c) are nevertheless timely when the filing after the deadline is due to reliance upon erroneous information or silence about the bar date in a notice supplied by the clerk. Compare Neeley v. Murchison, 815 F.2d 345 (5th Cir.1987) (complaint dismissed even though notice left space for bar date blank and attorneys relied upon verbal assurance by employees of clerk’s office that no bar date set); In re Kearney, 105 B.R. 260 (Bankr.E.D.Pa.1989) (complaint dismissed even though untimely filing was due to reliance upon erroneous notice of bar date by clerk of court); and In re Anwiler, 99 B.R. 41 (Bankr.S.D.Cal.1989) (change of venue prior to first credi tors’ meeting does not extend bar date set by transferor court; untimely complaint dismissed even though filed in reliance upon erroneous notice of new bar date provided by clerk of transfer court); with In re Riso, 57 B.R. 789, 792 (D.N.H.1986) (complaint allowed: within court’s equitable power to allow filing of objection to discharge by erroneous date set forth in a second notice by clerk’s office); Matter of Hershkovitz, 101 B.R. 816 (Bankr.N.D.Ga.1989) (same); In re Sibley, 71 B.R. 147 (Bankr.D.Mass.1987) (complaint timely when filed by erroneous date set forth in notice of meeting of creditors); In re Schwartz & Meyers, 64 B.R. 948 (Bankr.S.D.N.Y.1986) (complaint allowed: bar date not triggered due to absence of bar date in first notice; not a question of extending time); Matter of Hickey, 58 B.R. 106 (Bankr.S.D.Ohio 1986) (complaint timely when filed by erroneous date set forth in notice of meeting of creditors). See also South Dakota Cement Plant v. Jimco Ready Mix Co., 57 B.R. 396 (D.S.D.1986) (absent issuance of notice, bar date" }, { "docid": "4786221", "title": "", "text": "because a notice issued by the clerk pursuant to Bankr.R. 2002 established a bar date that violated Bankr.R. 4007(c). Rule 4007(c) provides: A complaint to determine the discharge-ability of any debt pursuant to § 523(c) of the Code shall be filed not later than 60 days following the first date set for the meeting of creditors held pursuant to § 341(a). The court shall give all creditors not less than 30 days notice of the time so fixed in the manner provided in Rule 2002. On motion of any party in interest, after hearing on notice, the court may for cause extend the time fixed under this subdivision. The motion shall be made before the time has expired. Bankr.R. 4007. The “first date set” for the creditors’ meeting determines the bar date regardless of whether the meeting is actually held. In re Schoofs, 115 B.R. 1, 2 (Bankr.D.D.C.1990) (citing In re Rhodes, 61 B.R. 626, 628-29 (9th Cir.BAP 1986) and In re Bartlett, 87 B.R. 445 (Bankr.W.D.Ky.1988)); see also 8 Collier on Bankruptcy 114004.03[1], at 4004-8. In this case the first date set was December 12, 1989. Therefore, Bankr.R. 4007 required that dischargeability complaints be filed prior to February 10, 1990, sixty days after the first date set. The second notice issued by the court notified the creditors of a March 19, 1990 bar date. When Oak Hollow filed its complaint on March 19, 1990, it complied with the notice from the clerk’s office but violated Bankr.R. 4007. Relying on In re Kearney, 105 B.R. 260 (Bankr.E.D.Pa.1989), the court below refused to allow Oak Hollow’s untimely complaint to stand. Kearney starts from the proposition that “as the bankruptcy court’s discretion in this area has been eroded by carefully considered rules, the court should be cautious in exercising any equitable power” to enlarge the deadline for filing complaints. 105 B.R. at 263 (citing cases). Moreover, Kearney emphasizes that the policy of achieving uniform and expeditious judicial administration of bankruptcy cases requires strict adherence to time limits set by procedural rules. Kearney attempts to distinguish the line of cases which allow the" }, { "docid": "4747033", "title": "", "text": "days, (emphasis added) The Court need not look beyond the plain language of the Bankruptcy Rules to dispose of this motion. Rule 9006(a) clearly governs the time period described in Rule 4007(c), and it does not avail the Debt- or whether he characterizes such time peri od as a statute of limitations or otherwise. The plain meaning of the rule allows plaintiffs such as Dr. Lewis an extra day to file a complaint to determine dischargeability when inclement weather causes the Clerk’s office to close on the date of the original deadline. The flood is not disputed. Nor is it disputed that the Clerk’s office closed on the last day of the period, making it inaccessible. Therefore, by operation of the rule, Plaintiffs’ deadline was automatically extended through April 14, 1992, and the filing of the complaint was timely. No courts in this circuit have written on the matter at hand. However courts in other circuits have ruled in agreement with the foregoing rationale. See In re Burns, 102 B.R. 750 (9th Cir. BAP 1989) (when the bar date for filing a discharge-ability complaint fell on a Saturday, it was extended, pursuant to Rule 9006(a), to the following Monday); In re Day, 102 B.R. 414 (E.D.Pa.1989) (when the bar date for filing a dischargeability complaint fell on a Sunday, it was extended, pursuant to Rule 9006(a), to the following Monday). Inaccessibility to the Clerk’s office on the bar date, whether caused by flood, weekend or holiday, is sufficient to automatically extend the time period through the next work day. In addition, one Supreme Court justice has, at least inferentially, recognized that a flood may constitute “excusable neglect” under Rule 9006(b), enabling a petitioner to seek enlargement of a time period within which to file a complaint after the expiration of such time period. Justice Scalia made comments to that effect during oral argument in the appeal of In re Pioneer Investment Services Co., 943 F.2d 673 (6th Cir.1991), cert. granted, — U.S.-, 112 S.Ct. 2963,119 L.Ed.2d 585 (1992) See High Court Considers “Excusable Neglect\", Bankruptcy Court Decisions — Weekly News" }, { "docid": "9573206", "title": "", "text": "ORDER JOHN L. PETERSON, Bankruptcy Judge. In this Chapter 7 adversary proceeding, the Plaintiff filed a complaint on June 12, 1986, seeking to declare the debt non-dis-chargeable under Section 11 U.S.C. § 528(a)(2) of the Bankruptcy Code. The Debtors responded with a response, amended on October 23, 1986, setting forth among other matters an affirmative defense that the complaint was filed beyond 60 days of the first meeting of creditors. By affidavit, the facts, which are not in dispute, show that counsel for the Plaintiff mailed the complaint, together with a motion for relief from the automatic stay, to the Clerk of the Bankruptcy Court on June 6, 1986, which the Clerk received on Monday, June 9, 1986, which was the last day allowed for filing complaints objecting to discharge. Rather than file the complaint, the Clerk returned the complaint with an attached yellow slip which stated: “This must be done as an adversary action. I’ll need $60.00, a cover sheet (enclosed) and two copies of complaint.” Plaintiff counsel promptly corrected the filing errors by completing the cover sheet and sending the fee, all of which was accomplished on June 12, 1986, three days beyond the bar date. Under Section 523(c) of the Code, this Court has exclusive jurisdiction to hear non-dischargeability complaints filed under Sections 523(a)(2), (4) and (6). In Re Aldrich, 34 B.R. 776 (9th Cir.1983). A complaint must be filed in the Bankruptcy Court within the time period set by the Court. Id. at 779; Bankruptcy Rule 4007(c). Rule 4007(c) provides that a complaint to determine the dischargeability of any debt pursuant to Section 523(a) shall be filed not later than 60 days following the first date set for the meeting of creditors held pursuant to Section 341(a). The Court may extend such time if a motion is made before the time for filing the complaint has expired. It is the duty of the Clerk under Rule 5005(a) to file such complaint upon receipt. Under 5005(b), where a complaint is erroneously delivered to a party other than the Clerk of the Bankruptcy Court, a court may, in" }, { "docid": "18525594", "title": "", "text": "Creditors’ Complaint. On appeal from the Bankruptcy Appellate Panel, “[findings of fact are subject to the ‘not clearly erroneous’ rule, [but] conclusions of law are freely reviewable.” Tri-State Livestock Credit Corp. v. Ellsworth (In re Ellsworth), 722 F.2d 1448, 1450 (9th Cir.1984) (citations omitted). Bankruptcy Rules 4004(a) and 4007(c) set a strict sixty day time limit within which a creditor may dispute the discharge of the debtor and the dischargeability of the debts. Bankruptcy Rules 4004(b) and 4007(c) also provide that there will be no extension of time to file a complaint unless a motion is made before the 60 day limit has expired. In addition, Bankruptcy Rule 9006(b)(3) provides that a “court may enlarge the time for taking action [under Rules 4004(a) and 4007(c)] only to the extent and under the conditions stated in those rules.” Bankruptcy Rule 2002(f) requires the clerk to give notice of the deadline to the parties. Both the Bankruptcy Court and the Bankruptcy Appellate Panel held that the Creditors’ complaint was untimely filed according to Bankruptcy Rules 4004(a) and 4007(c). Anwiler I, 99 B.R. at 47; Anwiler II, 115 B.R. at 663. The Creditors’ time to file their complaint began when the first date for the meeting of creditors was set and ended on May 23. Since a court no longer has the discretion to set the deadline, nor can it sua sponte extend the time to file, the 2nd Notice could not be construed as an order extending time. See P.S.T.C. Employees Fed. Credit Union v. Kearney (In re Kearney), 105 B.R. 260, 263 (Bankr.E.D.Penn.1989). Absent a motion to extend, the date, once set, does not change. See, e.g., In re Kearney, 105 B.R. 260 (notice naming new trustee does not extend time); First Nat’l Bank of Deerfield v. Lewis (In re Lewis), 71 B.R. 633 (Bankr.N.D.Ill.1987) (notice issued by second bankruptcy court after change of venue did not extend time); DeLesk v. Rhodes (In re Rhodes), 61 B.R. 626 (Bankr. 9th Cir.1986) (bankruptcy court’s failure to issue notice does not excuse creditor’s failure to file complaint before deadline); Montgomery Ward and Co." }, { "docid": "6239235", "title": "", "text": "to object to discharge, the deadline has been described as “set in stone.” Id. at 749. See also Federal Deposit Insurance Corp. v. Kirsch (In re Kirsch), 65 B.R. at 300. Despite the harsh results of this rule, it is clear that courts have no discretion to extend the time for objection. Byrd v. Alton (In re Alton), 837 F.2d 457, 459 (11th Cir.1988); Jones v. Hill (In re Hill), 811 F.2d 484, 486 (9th Cir.1987) [excusable neglect is not a basis for extending time for objection under 4007(c) ]. Rigid adherence to the deadline is justified on the basis that Rules 4007(c) and 9006(b)(3) “reflect a considered determination that a final cutoff date insuring that debtors will be free after a date certain, outweighs individual hardship to creditors ...” In re Klein, 64 B.R. at 375. Thus, numerous cases refuse to allow late filing of an objection, despite attorney error and/or harsh results. E.g., Neeley v. Marchison, 815 F.2d 345 (5th Cir.1987) (defective notice from clerk’s office doesn’t excuse untimely filing); Eubank v. Strickland (In re Strickland), 50 B.R. 16, 17 (Bankr.M.D.Ala.1985) (complaint mailed before bar date but received and filed by clerk one day late dismissed); similarly Menke v. Petersen (In re Petersen), 15 B.R. 598, 601 (Bankr.N.D.Iowa 1981). On the other hand, procedural errors in filing the complaint do not result in dismissal of the complaint, provided the objection was received by the court before the Rule 4007(c) deadline. See, e.g., Casper v. Frederick, 73 B.R. 636 (Bankr.N.D.Fla.1986); Ecker v. Replogle (In re Replogle), 70 B.R. 444 (Bankr.D.Mont.1987); In re Spearman, 68 B.R. 25 (Bankr.E.D.N.Y.1987); Williston Cooperative Credit Union v. Horob (In re Horob), 54 B.R. 693 (Bankr.D.N.D.1985). This is so even though process was not served by that deadline. See, e.g., In re Spearman, 68 B.R. at 26. In short, where some form of timely filing was made, creditors have been allowed to correct procedural errors after the Rule 4007(c) cut-off date. Where a creditor seeks to amend its objection to discharge after the deadline, results vary. The question arises most frequently in cases where a" }, { "docid": "16697368", "title": "", "text": "set for September 14, 1989, identified Mr. Kline as the interim trustee, and erroneously stated: NOVEMBER 14, 1989 IS FIXED AS THE LAST DAY FOR FILING COMPLAINTS OBJECTING TO THE DISCHARGE OF THE DEBTOR(S) AND COMPLAINTS TO DETERMINE THE DISCHARGEABILITY OF DEBTS PURSUANT TO 11 U.S.C. § 523(C). On November 14, 1989 (the erroneous deadline for filing dischargeability complaints provided in the clerk's amended notice), 68 days after the date first set for the § 341(a) meeting of creditors, the plaintiff filed its “Complaint to Determine Dis-chargeability of Debt,” pursuant to 11 U.S.C. § 523(a)(2)(A) and (B). The plaintiff received the amended notice of August 18, 1989, prior to November 6, 1989. Subject to the defendant’s right to present evidence to the contrary after discovery is completed, the parties agree that the plaintiff was unaware of the actual bar date rule when it received the amended notice and filed the complaint on November 14, 1989, in reliance thereon. DISCUSSION The time for filing dischargeability complaints is governed by Bankruptcy Rule 4007(c) which provides: (c) A complaint to determine the dis-chargeability of any debt pursuant to § 523(c) of the Code shall be filed not later than 60 days following the first date set for the meeting of creditors held pursuant to § 341(a). The court shall give all creditors not less than 30 days notice of the time so fixed in the manner provided by Rule 2002. On motion of any party in interest, after hearing on notice, the court may for cause extend the time fixed under this subdivision. The motion shall be made before the time has expired. (Emphasis added.) Bankruptcy Rule 4004 provides essentially identical requirements regarding complaints objecting to a debt- or’s discharge. The Bankruptcy Rules thus establish “the first date set” for the meeting of creditors pursuant to 11 U.S.C. § 341(a) as the cornerstone for determining the bar date for filing discharge and dischargeability complaints, regardless of whether the meeting is actually held then or whether the debtor or his representative fails to appear. See, e.g., In re Rhodes, 61 B.R. 626, 628-29 (9th" }, { "docid": "13927544", "title": "", "text": "This notice also set Sunday, November 29, 1987 as the last date for filing a complaint to determine dischargeability of a debt pursuant to 11 U.S.C. § 523(c). This date, sixty (60) days after the meeting of the creditors, was selected pursuant to Bankruptcy Rule 4007(c). Appellee filed its complaint on Monday, November 30, 1987. Appellant moved the bankruptcy court to dismiss the complaint as untimely. Following argument, the bankruptcy court denied the motion; Order and Opinion of February 1, 1988. Appellant’s right to appeal the issue of untimeliness was preserved by consent order, dated April 26, 1988. This court has jurisdiction pursuant to 28 U.S.C. §§ 157 and 158. The bankruptcy court held that the sixty-day time period for filing a complaint was extended one day by Bankruptcy Rule 9006(a), that when calculating any period of time, “the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday.” The bankruptcy court relied on relevant Third Circuit authority: Frey v. Woodard, 748 F.2d 173 (3d Cir.1984) (the time computation rule of Federal Rule of Civil Procedure 6(a) was appropriate method for computing time in which to file administrative claim under Federal Tort Claims Act; 28 U.S.C. § 1346(b); Administrative claim filed under Federal Tort Claims Act two days after expiration of period in which claims were required by statute to be presented nevertheless was timely where the statutory period expired on a Saturday and the fact that office to which the claim was presented was open on Saturday, at least until noon, was irrelevant. 28 U.S.C.A. §§ 1346(b), 2401(b), 2671 et seq.; Fed.R.Civ.P. 6(a); 28 U.S.C.A.); Krajci v. Provident Consumer Discount Co., 525 F.Supp. 145 (E.D.Pa.1981), aff'd, 688 F.2d 822 (3d Cir.1982) (the time computation rule of Fed.R.Civ.P. 6(a) extends time limitation of the Truth in Lending Act; 15 U.S.C. § 1640(e)). The bankruptcy court has also applied Bankruptcy Rule 9006(a) to the two-year statutory limitation period for the trustee’s filing of a preference action under the Bankruptcy Code § 546(a). In re Kaelin Associates Electrical Construction, Inc., 70 B.R." } ]

[ { "docid": "11448486", "title": "", "text": "8 U.S.C. § 1251(a)(2)(B)® (originally enacted as Immigration and Nationality Act (INA), ch. 477, § 241(a)(2)(B)®, 66 Stat. 163) (current version at 8 U.S.C. § 1227(a)(2)(B)®). The Board dismissed Sandoval’s appeal through a per curiam opinion issued in July 1999, rejecting his first two arguments. It determined that the enactment of a federal statute defining “conviction” for immigration purposes precluded the availability of federal first offender treatment. See 8 U.S.C. § 1101(a)(48)(A). The opinion did not address Sandoval’s assertion that he was not deportable because he was convicted of possession of thirty grams or less of marijuana. In this appeal, Sandoval alleges that the INS did not carry its burden of proving deportability, and that he does not have a conviction that renders him deportable under section 241(a)(2)(B)® of the INA. See 8 U.S.C. § 1251(a)(2)(B)® (current version at 8 U.S.C. § 1227(a)(2)(B)®). I. Analysis A. Jurisdiction Under the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), when a final order of deportation is entered “there shall be no appeal permitted in the case of an alien who is ... deportable by reason of having committed a [controlled substance] offense covered in ... the Immigration and Nationality Act.” IIRIRA, § 309(c)(4)(G), Pub.L. No. 104-208,110 Stat. 3009-625 (Sept. 30,1996), set out at 8 U.S.C. § 1101, Historical and Statutory Notes. Notwithstanding this restriction, courts do have jurisdiction to review whether the alien was convicted of a criminal offense that justifies deportation. See Wedderburn v. INS, 215 F.3d 795, 797 (7th Cir.2000), petition for cert. filed, 69 U.S.L.W. 3409 (U.S. Nov. 29, 2000) (No. 00-875); see also Jideonwo v. INS, 224 F.3d 692, 696 (7th Cir.2000); Xiong v. INS, 173 F.3d 601, 604 (7th Cir.1999). This limited review enables “judicial correction of bizarre miscarriages of justice.” LaGuerre v. Reno, 164 F.3d 1035, 1040 (7th Cir.1998). Therefore, we must determine whether Sandoval was convicted of a controlled substance offense that would justify deportation under the INA. B. Deportability Under Section 211 The immigration law in effect at the time the INS instituted deportation proceedings stated: “Any alien" } ]

[ { "docid": "23342836", "title": "", "text": "that “[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable.” Therefore, § 1252(a)(2)(C) generally eliminates our jurisdiction to review any final order of deportation against an alien convicted of an aggravated felony. However, we retain jurisdiction to determine whether we have jurisdiction — that is, to determine whether an alien’s criminal conviction is indeed an “aggravated felony” under the INA, thereby triggering the jurisdictional bar of § 1252(a)(2)(C). See, e.g., Xiong v. INS, 173 F.3d 601, 604 (7th Cir.1999); Yang v. INS, 109 F.3d 1185, 1192 (7th Cir.1997). Moreover, in addressing a similar jurisdictional bar announced in an earlier enacted amendment to the INA, we have held that an alien may challenge his deportability on constitutional grounds directly in the courts of appeals, provided that he raises a substantial constitutional claim. See Morales-Ramirez v. Reno, 209 F.3d 977, 980 (7th Cir.2000); Singh v. Reno, 182 F.3d. 504, 509 (7th Cir.1999); LaGuerre v. Reno, 164 F.3d 1035, 1040 (7th Cir.1998). Thus, while we honor Congress’ intent to curtail judicial review of final deportation orders for certain disfavored criminals, we have retained jurisdiction over any substantial constitutional claims raised as a “safety valve” to prevent “bizarre miscarriages of justice.” See LaGuerre, 164 F.3d at 1040. However, we have recognized that such direct review of constitutional claims is an “exceptional procedure,” see Singh, 182 F.3d at 510, which is available only when the alien raises substantial constitutional claims. See Morales-Ramirez, 209 F.3d at 981. Thus, in addressing Lara-Ruiz’ appeal, we must first determine whether the BIA correctly concluded that Lara-Ruiz was “an alien deportable by reason of having committed an aggravated felony.” If we answer that question in the affirmative, we must then consider whether Lara-Ruiz has nevertheless raised substantial constitutional claims, and we may assert jurisdiction over Lara-Ruiz’ claims only if we find that he has. As both of these inquiries are jurisdictional in nature, we review them de novo. See, e.g., Solorzano-Patlan v. INS, 207 F.3d 869, 872 (7th Cir.2000). B. Sexual abuse of a minor Lara-Ruiz argues that he is not deportable because" }, { "docid": "23342835", "title": "", "text": "felonies statutorily ineligible to receive a waiver of inadmissibility, while leaving illegal aliens who commit the same offenses eligible to apply for such relief. The INS argues that we lack jurisdiction to hear the appeal because Lara-Ruiz is an alien who has been ordered removed as an “aggravated felon” and because his constitutional claims are merit-less. DISCUSSION A. Jurisdiction As a preliminary matter, the government argues that § 1242(a)(2)(c) of the INA, codified at 8 U.S.C. § 1252(a)(2)(C), strips us of jurisdiction to hear Lara-Ruiz’ claims. That section provides: Notwithstanding any other provision of law, no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section 1182(a)(2) or 1227(a)(2)(A)(iii), (B), (C), or (D) of this title, or any offense covered by section 1227(a) (2) (A) (ii) of this title for which both predicate offenses are, without regard to their date of commission, otherwise covered by section 1227(a)(2)(A)© of this title. 8 U.S.C. § 1252(a)(2)(C). Section 1227(a)(2)(A)(iii) provides that “[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable.” Therefore, § 1252(a)(2)(C) generally eliminates our jurisdiction to review any final order of deportation against an alien convicted of an aggravated felony. However, we retain jurisdiction to determine whether we have jurisdiction — that is, to determine whether an alien’s criminal conviction is indeed an “aggravated felony” under the INA, thereby triggering the jurisdictional bar of § 1252(a)(2)(C). See, e.g., Xiong v. INS, 173 F.3d 601, 604 (7th Cir.1999); Yang v. INS, 109 F.3d 1185, 1192 (7th Cir.1997). Moreover, in addressing a similar jurisdictional bar announced in an earlier enacted amendment to the INA, we have held that an alien may challenge his deportability on constitutional grounds directly in the courts of appeals, provided that he raises a substantial constitutional claim. See Morales-Ramirez v. Reno, 209 F.3d 977, 980 (7th Cir.2000); Singh v. Reno, 182 F.3d. 504, 509 (7th Cir.1999); LaGuerre v. Reno, 164 F.3d 1035, 1040 (7th Cir.1998). Thus, while we honor Congress’ intent to curtail judicial" }, { "docid": "7301906", "title": "", "text": "however, we must first determine whether we have jurisdiction to do so. Section 1252(a)(2)(C) of Title 8 of the United States Code strips us of jurisdiction to review a final order of removal against an alien who is removable by virtue of having committed certain criminal offenses. However, that provision does not bar our jurisdiction to determine our jurisdiction. We also have jurisdiction to determine whether an alien “is being removed for a permissible reason.” Bosede v. Ashcroft, 309 F.3d 441, 445 (7th Cir.2002). See also Sandoval v. INS, 240 F.3d 577, 580 (7th Cir.2001). Therefore, we first examine Ali’s criminal offenses. Second, we analyze whether the criminal offenses preclude Ali’s statutory ..eligibility for withholding of removal. As the BIA affirmed the IJ decision without opinion, we review the IJ’s ruling denying Ali withholding of removal as the final agency decision. Vladimirova, 877 F.3d at 695. We review the IJ decision under the substantial evidence standard, which requires us to affirm the decision if it is “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Ememe, 358 F.3d at 450-51. The IJ found that Ali’s Wisconsin conviction for possession with intent to distribute THC constituted “illicit trafficking in a controlled substance” or a “drug trafficking crime.” Consequently, the IJ regarded Ali as an “aggravated felon” which under 8 U.S.C. § 1227(a)(2)(A)(iii) rendered him deportable. Ali claims that he is no longer an aggravated felon, because Wisconsin amended his conviction from a felony to a simple misdemeanor. However, after Ali’s later appeal to the BIA on a motion to reconsider (which we will discuss in a moment), the Board concluded in its July 28, 2003 opinion that although Wisconsin modified Ali’s conviction from a felony of possession with intent to distribute THC to a misdemeanor for simple possession of THC, Ali remained convicted of an aggravated felony for immigration purposes. The BIA relied on Matter of Pickering, 23 I. & N. Dec. 621 for its decision. In Pickering, the BIA ruled that if a court vacates an alien’s conviction for reasons solely related to rehabilitation or" }, { "docid": "3757684", "title": "", "text": "The INS argues that Flores-Leon’s petition should be dismissed because the immigration judge determined that Flores-Leon’s aggravated criminal sexual abuse conviction is an “aggravated felony” under the INA, thereby invoking the jurisdictional bar. However, as the government concedes, this court does have jurisdiction to determine whether jurisdiction exists. See Xiong v. INS, 173 F.3d 601, 604 (7th Cir.1999). Further, we have previously held that an alien may challenge his deportability on constitutional grounds directly in the court of appeals provided that he raises a substantial constitutional claim. See Larar-Ruiz v. INS, 241 F.3d 934, 939 (7th Cir.2001); LaGuerre v. Reno, 164 F.3d 1035, 1040 (7th Cir.1998). Therefore, we must first deter mine whether the immigration judge correctly concluded that Flores-Leon was “an alien deportable by reason of having committed an aggravated felony.” If we answer that question in the affirmative, we must then consider whether Flores-Leon has nevertheless raised substantial constitutional claims, so that we may assert jurisdiction over those claims. See Larar-Ruiz, 241 F.3d at 939. Under the INA, “[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable.” See 8 U.S.C. § 1227(a)(2)(A)(iii). In 1996, Congress adopted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub.L. No. 104-208, 110 Stat. 3009 (1996), as part of a sweeping program of immigration reform. IIRIRA amended the INA to substantially expand the definition of “aggravated felony” to include crimes that had not been included earlier. See IIRIRA § 321(a). The INA now defines an “aggravated felony” to include “murder, rape, or sexual abuse of a minor,” whereas previously only murder constituted an “aggravated felony” under the INA. See IIRIRA § 321(a)(1). Further, IIRIRA expanded the definition of “aggravated felony” to include “a crime of violence ... for which the term of imprisonment imposed [is] at least one year.” See IIRIRA §§ 321(a)(3), 322(a)(2)(A). Flores-Leon attacks the immigration judge’s determination that he was convicted of an “aggravated felony” as that term is now defined by the INA. See 8 U.S.C. §§ 1101(a)(43)(A) and (F). Flores-Leon does not dispute that his conviction for aggravated" }, { "docid": "22890903", "title": "", "text": "order of removal against an alien who is removable by reason of having committed a criminal offense covered in section ... 1227(a)(2)(A)(iii).” We have recently explained that this jurisdiction-stripping provision comes into play only when two facts exist: “(1) the petitioner is an alien (2) who is deportable by reason of having been convicted of one of the enumerated offenses.” Drakes v. Zimski, 240 F.3d 246, 247 (3d Cir.2001). In keeping with the views of several other circuit courts, we held that we have jurisdiction “to determine whether these jurisdictional facts are present.” Id.; Tapia Garcia v. INS, 237 F.3d 1216, 1220-21 (10th Cir.2001); Mahadeo v. Reno, 226 F.3d 3, 9 (1st Cir.2000), cert. denied, 533 U.S. 949, 121 S.Ct. 2590, 150 L.Ed.2d 749 (2001); Bell v. Reno, 218 F.3d 86, 89-90 (2d Cir.2000), cert. denied, 531 U.S. 1081, 121 S.Ct. 784, 148 L.Ed.2d 680 (2001); Santos v. Reno, 228 F.3d 691, 597 n. 11 (5th Cir.2000); Flores-Miramontes v. INS, 212 F.3d 1133, 1135 (9th Cir.2000); Lewis v. INS, 194 F.3d 639, 542 (4th Cir. 1999); Diakite v. INS, 179 F.3d 553, 554 (7th Cir.1999) (per curiam). In this case, Valansi does not dispute that she is an alien. Instead she argues that her conviction for embezzlement of bank funds under 18 U.S.C. § 656 does not qualify as an aggravated felony as defined in 8 U.S.C. § U01(a)(43)(M)(i), and that she therefore cannot be deported pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). If she is right, judicial review is not precluded, and the removal order will be vacated for failing to allege a removable offense. If she is wrong, 8 U.S.C. § 1252(a)(2)(C) deprives us of jurisdiction to inquire any further into the merits, and the removal order will stand. Because we are determining a purely legal question, and one that governs our own jurisdiction, we review de novo whether the petitioner’s conviction qualifies as an aggravated felony. See, e.g., Lopez-Elias v. Reno, 209 F.3d 788, 791 (5th Cir.2000), cert. denied, 531 U.S. 1069, 121 S.Ct. 757, 148 L.Ed.2d 660 (2001) (“Reviewing the matter de novo, we nevertheless conclude that" }, { "docid": "11176114", "title": "", "text": "sentenced to twenty-six months imprisonment. The IJ found that aggravated driving under the influence is a crime of violence as defined in 18 U.S.C. § 16(b), and therefore is an aggravated felony. On that basis, the IJ ordered Gomez-Vela removed. Gomez-Vela appealed the IJ’s determination that he was guilty of an aggravated felony to the BIA, but the BIA dismissed his appeal on October 22,1999. Petitioners Bazan-Reyes, Maciasowicz, and Gomez-Vela all filed timely petitions for review of the INS and BIA decisions finding them removable. On appeal, petitioners argue that the INS and the BIA erred in their determination that Bazan Reyes and Gomez-Vela’s prior convictions for DWI and Maciasowicz’s conviction for homicide by intoxicated use of a vehicle are aggravated felonies rendering them removable under 8 U.S.C. § 1227(a)(2)(A)(iii). II. Analysis A. Jurisdiction The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub.L. No. 104-208, 110 Stat. 3009 (1996), limits our review of orders of removal. Under 8 U.S.C. § 1252(a)(2)(C), as amended by the IIRIRA, “no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section ... 1227(a)(2)(A)(iii).” Nevertheless, the government concedes that we retain jurisdiction in order to determine jurisdiction and may thus review the threshold issue of whether petitioners’ convictions for driving while intoxicated are indeed aggravated felonies as defined by 8 U.S.C. § 1227(a)(2)(A)(iii). See Solorzano Patlan v. INS, 207 F.3d 869, 872 (7th Cir.2000); Xiong v. INS, 173 F.3d 601, 604 (7th Cir. 1999). Here, the jurisdictional question and the merits collapse into one because the issue of whether petitioners’ convictions were aggravated felonies also provides the basis for their challenges to removal. See Guerrero Perez v. INS, 242 F.3d 727, 729-30 (7th Cir.2001). Thus, we must decide whether the state drunk driving convictions of Bazan-Reyes, Maciasow-icz, and Gomez-Vela can be considered aggravated felonies under 8 U.S.C. § 1101(a)(43). B. Was Bazan-Reyes Properly Placed in Expedited Removal • Proceedings? Before turning to the question of whether petitioners have committed aggravated felonies, we must first" }, { "docid": "7301905", "title": "", "text": "F.3d 189, 191 (2d Cir.2003). Therefore, even though Ali’s mother is a U.S. citizen, Ali does not qualify for automatic citizenship under the CCA because he was over the age of eighteen on February 27, 2001, the CCA’s effective date. Dave, 363 F.3d at 654; Gomez-Diaz, 324 F.3d at 916. The CCA thus does not protect Ali against removal. B. Withholding of Removal Ali also seeks review of his denied withholding of removal claim. As indicated in his Notice to Appear, Ali was deemed removable under the INA for having been convicted, after admission to the United States, of an aggravated felony. Specifically, Ali was convicted of a felony relating to the illicit trafficking of a controlled substance under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii); a controlled substance offense under INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i); and two crimes involving moral turpitude not arising out a single scheme of criminal misconduct under INA § 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii). Before we may review the BIA’s denial of Ali’s request for withholding of removal, however, we must first determine whether we have jurisdiction to do so. Section 1252(a)(2)(C) of Title 8 of the United States Code strips us of jurisdiction to review a final order of removal against an alien who is removable by virtue of having committed certain criminal offenses. However, that provision does not bar our jurisdiction to determine our jurisdiction. We also have jurisdiction to determine whether an alien “is being removed for a permissible reason.” Bosede v. Ashcroft, 309 F.3d 441, 445 (7th Cir.2002). See also Sandoval v. INS, 240 F.3d 577, 580 (7th Cir.2001). Therefore, we first examine Ali’s criminal offenses. Second, we analyze whether the criminal offenses preclude Ali’s statutory ..eligibility for withholding of removal. As the BIA affirmed the IJ decision without opinion, we review the IJ’s ruling denying Ali withholding of removal as the final agency decision. Vladimirova, 877 F.3d at 695. We review the IJ decision under the substantial evidence standard, which requires us to affirm the decision if it is “supported by reasonable, substantial, and probative evidence on the" }, { "docid": "22120441", "title": "", "text": "Ashcroft, 356 F.3d 1015 (9th Cir.2004), withdrawn 366 F.3d 736 (9th Cir.2004). However, our opinion did not fully “untie the various jurisdictional Gordian knots created by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996” (IIRIRA). Baeta v. Sonchik, 273 F.3d 1261, 1263 (9th Cir.2001). It subsequently came to our attention that the IIRIRA divests us of power to review a removal order of an alien found removable for committing a controlled substance offense. We withdrew the opinion while we reexamined our jurisdiction over Cazarez-Gutierrez’s petition for review. We now consider the provisions governing our jurisdiction over this petition and conclude that Cazarez-Gutierrez’s offense was not an aggravated felony. However, we are without power to review non-jurisdictional questions in this case or to grant relief because Cazarez-Gutierrez is removable for his controlled substances offense. In the interests of justice, we construe this petition for review as a petition for habeas corpus, and we transfer the petition to the district court. II. STANDARD OF REVIEW The BIA’s determination of purely legal questions is reviewed de novo. Molino-Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir.2002); Castillo-Perez v. INS, 212 F.3d 518, 523 (9th Cir.2000). Whether an offense is an aggravated felony under the INA is a legal question subject to de novo review. Ye v. INS, 214 F.3d 1128, 1131 (9th Cir.2000). Likewise, we review de novo whether a conviction is a controlled substances offense that renders Ca-zarez-Gutierrez removable. Lara-Chacon v. Ashcroft, 345 F.3d 1148, 1151 (9th Cir.2003). III. DISCUSSION We have jurisdiction under 8 U.S.C. § 1252 to review final removal orders issued by the BIA. However, IIRIRA divests us of jurisdiction to review an order of removal against an alien removable for having committed an aggravated felony or a violation of any law relating to a controlled substance. See 8 U.S.C. §§ 1227(a)(2)(A)(iii), (B), 1252(a)(2)(C). Nonetheless, this Court retains jurisdiction to determine its jurisdiction, which includes determining whether a particular offense constitutes an offense governed by the jurisdiction-stripping provisions. See, e.g., Cedano-Viera v. Ashcroft, 324 F.3d 1062, 1064-65 (9th Cir.2003). Although the BIA’s decision addressed only the “aggravated" }, { "docid": "11176115", "title": "", "text": "review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section ... 1227(a)(2)(A)(iii).” Nevertheless, the government concedes that we retain jurisdiction in order to determine jurisdiction and may thus review the threshold issue of whether petitioners’ convictions for driving while intoxicated are indeed aggravated felonies as defined by 8 U.S.C. § 1227(a)(2)(A)(iii). See Solorzano Patlan v. INS, 207 F.3d 869, 872 (7th Cir.2000); Xiong v. INS, 173 F.3d 601, 604 (7th Cir. 1999). Here, the jurisdictional question and the merits collapse into one because the issue of whether petitioners’ convictions were aggravated felonies also provides the basis for their challenges to removal. See Guerrero Perez v. INS, 242 F.3d 727, 729-30 (7th Cir.2001). Thus, we must decide whether the state drunk driving convictions of Bazan-Reyes, Maciasow-icz, and Gomez-Vela can be considered aggravated felonies under 8 U.S.C. § 1101(a)(43). B. Was Bazan-Reyes Properly Placed in Expedited Removal • Proceedings? Before turning to the question of whether petitioners have committed aggravated felonies, we must first address Bazan Reyes’ claim that the INS lacked subject matter jurisdiction to issue a final order of removal against him because he was improperly placed into expedited removal proceedings under section 238 of the INA, 8 U.S.C. § 1228. Unlike petitioners Maciasowicz and Gomez-Vela, Bazan Reyes was not a lawful permanent resident at the time the INS commenced deportation proceedings against him because he was paroled rather than admitted to the country. Therefore, the INS placed Bazan Reyes in expedited removal proceedings pursuant to 8 U.S.C. § 1228. Section 1228(b) allows the Attorney General to issue an order of removal for a non-permanent resident alien if the alien is deporta-ble under 8 U.S.C. § 1227(a)(2)(A)(iii), i.e., if the alien has committed an aggravated felony. Bazan Reyes claims that he is not deportable under 8 U.S.C. § 1227(a)(2)(A)(iii) because the language of that provision forbids its application to parolees. Bazan-Reyes’ argument that parolees may not be placed in expedited removal proceedings is based on the introductory paragraph to 8 U.S.C. § 1227(a) which provides: “Any alien" }, { "docid": "23476237", "title": "", "text": "for review and therefore dismiss it. DISCUSSION I. Jurisdiction The INA provides that “[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii). For purposes of this section, an “aggravated felony” includes “murder, rape, or sexual abuse of a minor.” 8 U.S.C. § 1101(a)(43)(A). Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, Div. C., Title III-B, 110 Stat. 3009-546 (Sept. 30, 1996) (“IIRI-RA”), we cannot review any final removal order against an alien who is deportable because he was convicted of an aggravated felony. See 8 U.S.C. § 1252(a)(2)(C). This jurisdictional bar arises if: (1) the petitioner is an alien; and (2) he is deport- able under one of the offenses enumerated in 8 U.S.C. § 1101(a)(43). See Bell v. Reno, 218 F.3d 86, 89 (2d Cir.2000), cert. denied, 531 U.S. 1081, 121 S.Ct. 784, 148 L.Ed.2d 680 (2001). However, “[w]e have jurisdiction to determine whether this jurisdictional bar applies, and we may thus review whether [Mugalli] satisfies these jurisdictional facts.” Id. Mugalli concedes that he is an alien. “The jurisdictional inquiry thus merges with the question on the merits: If [Mu-galli] is in fact removable because he was convicted of an aggravated felony ..., we must dismiss his petition for lack of jurisdiction.” Sui v. INS, 250 F.3d 105, 110 (2d Cir.2001). We are therefore required to consider Mugalli’s substantive arguments that his New York conviction is not an aggravated felony under the INA and that his conviction has been expunged for purposes of the immigration laws by the Certificate of Relief. II. Standard of Review The “determination of our jurisdiction is exclusively for the court to decide.” Lopez-Elias v. Reno, 209 F.3d 788, 791 (5th Cir.2000), cert. denied, 531 U.S. 1069, 121 S.Ct. 757, 148 L.Ed.2d 660 (2001). In this appeal, our jurisdiction depends on the definition of the phrase “aggravated felony” as used in the INA, a statute that is administered by, among others, the BIA. “As is well-established, Chevron [U.S.A Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837," }, { "docid": "11176117", "title": "", "text": "... in and admitted to the United States shall ... be removed if the alien is within one or more of the following classes of deportable aliens.” Bazan Reyes argues that, since he has not been admitted to this country, he does not fall under 8 U.S.C. § 1227, and thus may not be placed in expedited proceedings. We disagree. Section 1228(b) of Title 8 of the United States Code, entitled “Removal of aliens who are not permanent residents,” allows the Attorney General to utilize expedited proceedings to remove certain aliens who are not lawful permanent residents, including those who have been convicted of aggravated felonies. Nothing in that section prohibits its application to parolees, and, as the government points out, construing the statute to forbid its application to parolees would provide more favorable treatment for parolees than for lawfully admitted aliens. We cannot believe that Congress intended such a result. We find it more plausible that the reference to § 1227(a)(2)(A)(iii) simply operates to incorporate the definition of aggravated felony set out in that section to elucidate which non-lawful resident aliens may be placed in expedited proceedings. Therefore, we reject Bazan-Reyes’ argument that he was improperly placed in removal proceedings and will consider whether his prior conviction-as well as the prior convictions of petitioners Maciasowicz and Gomez-Vela — was properly found to be an aggravated felony. C. Is Driving While Intoxicated an Aggravated Felony ? 1. Statutory Framework Section 237(a)(2)(A)(iii) of the INA provides that “[a]ny alien who is convicted of an aggravated felony ... is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii). Petitioners dispute neither the fact of their convictions nor their alien status. Therefore, the only remaining issue in these consolidated appeals is whether the petitioners’ convictions may be deemed aggravated felonies under 8 U.S.C. § 1227(a)(2)(A)(iii). Although we review de novo the determinations by the INS and the BIA that petitioners are removable because they committed aggravated felonies, see Xiong v. INS, 173 F.3d 601, 605 (7th Cir.1999), the BIA’s interpretation of the statute it administers is entitled to deference. See Guerrero-Perez, 242 F.3d 727, 730 (7th Cir" }, { "docid": "23547537", "title": "", "text": "possession for one’s own use of 30 grams or less of marijuana.” 8 U.S.C. § 1227(a)(2)(B)©. . Section 1227(a)(2)(A)(iii) provides for the removal of an alien who is convicted of an \"aggravated felony.” 8 U.S.C. § 1227(a)(2)(A)(iii). In 1996, Congress amended the Immigration and Nationality Act’s statutory definition of an \"aggravated felony” to include any \"burglary offense” for which the \"term of imprisonment” is \"at least one year.” 8 U.S.C. § 1101(a)(43)(G). Congress also amended the Immigration and Nationality Act to define the \"term of imprisonment” to include any \"period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.” 8 U.S.C. § 1101(a)(48)(B). See also Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208, §§ 321(a)(3), 322(a)(l)-(2)(A), 110 Stat. 3009 (1996). . This decision was later overruled by the U.S. Supreme Court in the light of INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). See Max-George v. Ashcroft, 533 U.S. 945, 121 S.Ct. 2585, 150 L.Ed.2d 746 (2001). . The government appears to take this position in order to limit the circumstances under which a § 2241 habeas proceeding may be appropriate, streamline the alien removal process, and avoid possible constitutional concerns that could be associated with the deprivation of judicial review. See Calcano-Martinez v. I.N.S., 533 U.S. 348, 350 n. 2, 121 S.Ct. 2268, 150 L.Ed.2d 392 (2001). . In dicta in Balogun, a panel of this court stated that the court could consider a petition for review of a final order of removal to determine whether § 1252’s jurisdiction-stripping provisions are being applied constitutionally and to consider other \"substantial constitutional claims.” See Balogun, 270 F.3d at 278 n. 11 (citing Fifth Circuit cases decided prior to INS v. St. Cyr). Other circuits, however, have concluded that a petitioner may not raise nonjurisdiction-related constitutional or statutory challenges in a petition for direct review that is subject to § 1252's jurisdiction-stripping provisions. See Bosede v. Ashcroft, 309 F.3d 441, (7th Cir.2002)(stating" }, { "docid": "11176118", "title": "", "text": "section to elucidate which non-lawful resident aliens may be placed in expedited proceedings. Therefore, we reject Bazan-Reyes’ argument that he was improperly placed in removal proceedings and will consider whether his prior conviction-as well as the prior convictions of petitioners Maciasowicz and Gomez-Vela — was properly found to be an aggravated felony. C. Is Driving While Intoxicated an Aggravated Felony ? 1. Statutory Framework Section 237(a)(2)(A)(iii) of the INA provides that “[a]ny alien who is convicted of an aggravated felony ... is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii). Petitioners dispute neither the fact of their convictions nor their alien status. Therefore, the only remaining issue in these consolidated appeals is whether the petitioners’ convictions may be deemed aggravated felonies under 8 U.S.C. § 1227(a)(2)(A)(iii). Although we review de novo the determinations by the INS and the BIA that petitioners are removable because they committed aggravated felonies, see Xiong v. INS, 173 F.3d 601, 605 (7th Cir.1999), the BIA’s interpretation of the statute it administers is entitled to deference. See Guerrero-Perez, 242 F.3d 727, 730 (7th Cir .2001). The INA provides that the term “aggravated felony” includes, inter alia, “a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(F). All of the petitioners were sentenced to a year or more of imprisonment. Thus, in order to determine whether Bazan-Reyes, Maciasowicz, and Gomez-Vela were properly found to have committed aggravated felonies, we must determine whether their state convictions for driving while intoxicated are crimes of violence as defined in 18 U.S.C. § 16. See Solorzano-Patlan v. INS, 207 F.3d 869, 875 (7th Cir.2000). 2. Categorical Approach In order to determine whether Congress intended the term “crime of violence” as defined in 18 U.S.C. § 16 to encompass conduct prohibited under a specific state statute, we generally employ a categorical approach. See Lara Ruiz v. INS, 241 F.3d 934, 941 (7th Cir.2001). In other words, we ask only whether the generic elements of the statute under which the alien was" }, { "docid": "11353248", "title": "", "text": "non-U.S. citizens in the aftermath of September 11, 2001. Upon processing, Zaidi was issued a Notice of Intent to Issue a Final Administrative Removal Order based on his prior conviction. On March 6, 2003, a Final Administrative Removal Order was served upon Zaidi, ordering him to be removed to Pakistan. Zaidi now petitions this court for review of the removal order. II. DISCUSSION A. Standard of Review The key question before the court is whether Zaidi’s conviction for sexual battery constitutes an aggravated felony such that this court is deprived of jurisdiction to review the final removal order. See 8 U.S.C. § 1252(a)(2)(C) (2000) (“Notwithstanding any other provision of law, no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section ... 1227(a)(2)(A)(iii).... ”); 8 U.S.C. § 1227(a)(2)(A)(iii) (2000) (“Any alien who is convicted of an aggravated felony at any time after admission is deportable.”); Nehme v. INS, 252 F.3d 415, 420 (5th Cir.2001) (“Congress has specifically commanded in 8 U.S.C. § 1252(a)(2)(C) that no court has jurisdiction to review deportation orders for aliens who are removable be cause they were convicted of aggravated felonies.”). This court reviews questions of jurisdiction de novo. Nehme, 252 F.3d at 420. B. “Sexual Battery” as a “Crime of Violence” Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009-546 (“IIRIRA”), this court retains jurisdiction to review jurisdictional facts. Lopez-Elias v. Reno, 209 F.3d 788, 791 (5th Cir.2000). Specifically, this court always has jurisdiction to determine whether the petitioner is an alien who is deportable for committing an offense that bars this court’s review. Smalley v. Ashcroft, 354 F.3d 332, 335 (5th Cir.2003) (citing Nehme, 252 F.3d at 420). Thus, this court must consider whether Zaidi’s conviction for sexual battery under Oklahoma law constitutes an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii). The term “aggravated felony” is defined for the purposes of the immigration statutes in 8 U.S.C. § 1101(a)(43) and includes a variety of offenses. See 8 U.S.C." }, { "docid": "22402369", "title": "", "text": "fact removable under § 1182(a)(2), we lack jurisdiction to review his final order of removal. See Lopez-Elias v. Reno, 209 F.3d 788, 793 & n. 11 (5th Cir.2000) (“[S]o long as the alien in fact is removable for committing [an offense enumerated in § 1252(a)(2)(C) ], this court has no jurisdiction, irrespective of whether the INS originally sought removal for that reason.”); Briseno v. INS, 192 F.3d 1320, 1322 (9th Cir.1999) (“Because the deportation order was necessarily based on [a crime that qualifies as an ‘aggravated felony’ under IIRIRA], we have no appellate jurisdiction [under IIRIRA transitional rule § 309(c)(4)(G),] even though the deportation order did not characterize the crime as an aggravated felony or base deportation on that ground.”); see also Tapia Garcia, 237 F.3d at 1220 (“[Section 1252(a)(2)(C) ] divests courts of jurisdiction only if an alien ‘is removable by reason of having committed a criminal offense’.... It does not say that courts lack jurisdiction if the an [sic] alien is found deportable for commission of certain criminal offenses.”) (emphasis in original) (citation omitted) (dictum). But see Xiong v. INS, 173 F.3d 601, 608 (7th Cir.1999); Choeum v. INS, 129 F.3d 29, 38 (1st Cir.1997). In Galindo-Del Valle, 213 F.3d at 598, we reached the same conclusion regarding the effect of § 1252(a)(2)(C). There, the alien was ordered removed because he had been “convicted of’ conspiracy to violate a controlled substance law, 8 U.S.C. § 1182(a)(2)(A)(i)(II), and, alternatively, because an immigration officer knew or had reason to believe that he had conspired in the illicit trafficking of a controlled substance, id. § 1182(a)(2)(C). Galindo-Del Valle, 213 F.3d at 595. We concluded that we lacked jurisdiction to review the alien’s petition because he “admitted at his hearing before the [immigration judge] that he ... pleaded guilty to conspiracy to import methaqualone.” Id. at 598. Thus, in Galindo-Del Valle, as in this case, we used the alien’s admission that he committed a controlled substance offense to apply the jurisdictional bar in § 1252(a)(2)(C), even though the INS did not seek removal on the basis of an admission, and even though" }, { "docid": "10053697", "title": "", "text": "493 (1946). II. Judicial review of removal orders under the INA has been significantly restricted by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-208, 110 Stat. 3009. IIRIRA provides that courts have no jurisdiction to review a final order of removal under the aggravated felony provision, 8 U.S.C. § 1252(a)(2)(C), but the circuit courts which have considered the issue all agree that there is jurisdiction to decide whether the offense of conviction is an aggravated felony. See Francis v. Reno, 269 F.3d 162,165 (3d Cir.2001). See also Dalton, 257 F.3d at 203 (2d Cir.); Bazan-Reyes, 256 F.3d at 604 (7th Cir.); Tapia Garcia v. INS, 237 F.3d 1216, 1220 (10th Cir.2001); Wireko v. Reno, 211 F.3d 833, 835 (4th Cir.2000). Although the Supreme Court has not yet decided the issue, the government conceded in a ease before it that appellate courts have jurisdiction over petitions which challenge whether a particular felony meets the statutory definition. Calcano-Marbinez v. INS, 533 U.S. 348, 350 n. 2, 121 S.Ct. 2268, 150 L.Ed.2d 392 (2001). The respondents make the same concession in this case, and we conclude that we have jurisdiction to decide whether criminal vehicular homicide is an aggravated felony for purposes of the INA. The INA provides various grounds for deportation of an alien, one of which is commission of an aggravated felony. 8 U.S.C. § 1227(a)(2)(A)(iii). For a felony to be an aggravated felony under the INA, it must be an offense punishable by a least one year and a crime of violence as defined in the criminal code at 18 U.S.C. § 16. See 8 U.S.C. § 1101(a)(43)(F). Section 16 defines a crime of violence in two ways as: (a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. In order" }, { "docid": "3757683", "title": "", "text": "retroactive application of the amended definition of “aggravated felony” was unconstitutional. On December 20, 1999, the BIA rejected the appeal and adopted the immigration judge’s conclusions. On February 20, 2000, Flores-Leon sought review in this court. The INS opposed Flores-Leon’s request with a motion to dismiss, alleging that this court lacked subject matter jurisdiction because the INA bars review of a deportation order for aliens convicted of an “aggravated felony,” as that term is defined by the INA. On June 20, 2000, we ordered the parties to brief and argue both the jurisdictional issue and the substantive issues in full and we ordered that the motion to dismiss be taken with the case. II. Analysis The INS argues that this court lacks subject matter jurisdiction over Flores-Leon’s appeal. The INA provides in relevant part that “no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered” by the statutory provision making aggravated felons removable. See 8 U.S.C. § 1252(a)(2)(C). The INS argues that Flores-Leon’s petition should be dismissed because the immigration judge determined that Flores-Leon’s aggravated criminal sexual abuse conviction is an “aggravated felony” under the INA, thereby invoking the jurisdictional bar. However, as the government concedes, this court does have jurisdiction to determine whether jurisdiction exists. See Xiong v. INS, 173 F.3d 601, 604 (7th Cir.1999). Further, we have previously held that an alien may challenge his deportability on constitutional grounds directly in the court of appeals provided that he raises a substantial constitutional claim. See Larar-Ruiz v. INS, 241 F.3d 934, 939 (7th Cir.2001); LaGuerre v. Reno, 164 F.3d 1035, 1040 (7th Cir.1998). Therefore, we must first deter mine whether the immigration judge correctly concluded that Flores-Leon was “an alien deportable by reason of having committed an aggravated felony.” If we answer that question in the affirmative, we must then consider whether Flores-Leon has nevertheless raised substantial constitutional claims, so that we may assert jurisdiction over those claims. See Larar-Ruiz, 241 F.3d at 939. Under the INA, “[a]ny alien who is convicted" }, { "docid": "6554849", "title": "", "text": "of Immigration Appeals (“BIA”), and the BIA reversed because it did not consider Peters’s prior conviction an aggravated felony. INS then withdrew the aggravated felony charge and filed a new deportation charge against Peters as an ... alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21), other than a single offense involving possession for one’s own use of 30 grams or less of marijuana.... 8 U.S.C. § 1227(a)(2)(B)® (2000). Peters moved to terminate the removal proceedings based on the Ninth Circuit’s decision that a conviction for solicitation to possess cocaine under Arizona law did not render an alien removable under § 1227(a)(2)(B)(i). See Coronado-Durazo v. INS, 123 F.3d 1322, 1326 (9th Cir.1997). Peters’s proceedings, however, occurred in Oakdale, Louisiana, in the Fifth Circuit, and the immigration judge refused to be bound by Ninth Circuit precedent. Instead, the immigration judge applied a BIA decision contrary to Coronado-Durazo. See Matter of Beltran, 20 I. & N. Dec. 521, 528 (BIA 1992). On appeal to the BIA, Peters again relied on the Ninth Circuit opinion and also contended that the BIA’s earlier decision in his bond proceeding barred his deportation based on res judicata principles. The BIA rejected Peters’s arguments. He has appealed the resulting removal order. II. DISCUSSION Notwithstanding the limited scope of judicial review of deportation orders authorized by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009-546 (“IIRIRA”), this court retains jurisdiction to review facts concerning our jurisdiction. Lopez-Elias v. Reno, 209 F.3d 788, 791 (5th Cir.2000). Specifically, we have jurisdiction to determine whether the petitioner is an alien who is deportable for committing an offense that bars this court’s review. Smalley v. Ashcroft, 354 F.3d 332, 335 (5th Cir.2003) (citing Nehme v. INS, 252 F.3d 415, 420 (5th Cir.2001)). If he is, then we lack jurisdiction to consider other issues. Our jurisdiction here" }, { "docid": "5671209", "title": "", "text": "On August 31, 1999, the BIA affirmed the IJ’s decision, and concluded that Solorzano-Patlan’s violation of the Illinois burglary statute “falls easily within the definition of a ‘burglary offense.’ ” The BIA further concluded that Solorzano-Patlan committed a “crime of violence” because, according to the BIA (which relied on Fifth Circuit caselaw), “[t]he burglary of a vehicle involves a substantial risk that physical force may be used against persons or property.” The BIA went on to hold that the IJ correctly decided that Solorzano-Patlan was an aggravated felon, and dismissed Solorzano-Patlan’s appeal. Solorzano-Patlan petitions for review. II. ANALYSIS Under The Immigration and Nationality Act (INA) “[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii). Additionally, the transitional rules set forth in the 1996 Illegal Immigration Reform and Immigrant Responsibility Act, section 309(c)(4), state that appeals of final orders of deportation entered after October 30, 1996, shall not be permitted “in the case of an alien who is inadmissible or deportable by reason of having committed ... [an aggravated felony].” Because we have the authority to determine jurisdiction, we may review whether Solorzano-Patlan has committed an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii). See Xiong v. INS, 173 F.3d 601, 604 (7th Cir.1999). Consequently, both our jurisdiction to hear this case and the merits of the appeal turn on the question of whether So-lorzano-Patlan is an aggravated felon, a decision we review de novo. Id. at 604-OS. In this case, it is uncontested that Solor-zano-Patlan is an alien convicted under an Illinois statute entitled burglary. Thus, the question is whether Solorzano-Patlan’s conduct which resulted in a conviction pursuant to 720 Ill. Comp. Stats. 5/19-l(a) is an “aggravated felony” as that term is defined in 8 U.S.C. § 1227(a)(2)(A)(iii). The INS argues that Solorzano-Patlan’s burglary conviction satisfies the definitions of two “aggravated felony” offenses: “burglary offense” in 8 U.S.C. § 1101(a)(43)(G) and “crime of violence” in 8 U.S.C. § 1101(a)(48)(F). A. The Deftnition of “Burglary Offense” in 8 U.S.C. § 1101(a)(43)(G) The INA. defines “aggravated felony” as including a “burglary offense" }, { "docid": "22890904", "title": "", "text": "1999); Diakite v. INS, 179 F.3d 553, 554 (7th Cir.1999) (per curiam). In this case, Valansi does not dispute that she is an alien. Instead she argues that her conviction for embezzlement of bank funds under 18 U.S.C. § 656 does not qualify as an aggravated felony as defined in 8 U.S.C. § U01(a)(43)(M)(i), and that she therefore cannot be deported pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). If she is right, judicial review is not precluded, and the removal order will be vacated for failing to allege a removable offense. If she is wrong, 8 U.S.C. § 1252(a)(2)(C) deprives us of jurisdiction to inquire any further into the merits, and the removal order will stand. Because we are determining a purely legal question, and one that governs our own jurisdiction, we review de novo whether the petitioner’s conviction qualifies as an aggravated felony. See, e.g., Lopez-Elias v. Reno, 209 F.3d 788, 791 (5th Cir.2000), cert. denied, 531 U.S. 1069, 121 S.Ct. 757, 148 L.Ed.2d 660 (2001) (“Reviewing the matter de novo, we nevertheless conclude that we have no jurisdiction under IIRIRA [Illegal Immigration Reform and Immigrant Responsibility Act of 1996], because Lopez-Elias was convicted of a crime of violence_”); Solorzano-Patlan v. INS, 207 F.3d 869, 872 (7th Cir.2000) (“[B]oth our jurisdiction to hear this case and the merits of the appeal turn on the question of whether Solorzano-Patlan is an aggravated felon, a decision we review de novo.”); Ye v. INS, 214 F.3d 1128, 1131 (9th Cir.2000) (“This court reviews de novo the question of whether a particular offense constitutes an aggravated felony for which an alien is subject to removal.”). Despite our exercise of de novo review, we will give deference to the agency’s interpretation of the aggravated felony definition if Congress’s intent is unclear. “We do not doubt that the principles of Chevron v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ... apply in general to the statutory scheme set out in the INA.” Drakes, 240 F.3d at 250 (citing INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25, 119 S.Ct. 1439, 143" } ]

[ { "docid": "23327541", "title": "", "text": "tax return, General Dynamics filed an amended return, claiming it was entitled to deduct its reserve as an accrued expense, and seeking a refund. The IRS disallowed the deduction, and General Dynamics sought relief in the Claims Court. The Claims Court sustained the deduction, holding that it satisfied the “all events” test embodied in Treas. Reg. § 1.461-1(a)(2), 26 CFR § 1.461-l(a)(2) (1986), since “all events” which determined the fact of liability had taken place when the employees received covered services, and the amount of liability could be determined with reasonable accuracy. Thus, the court held that General Dynamics was entitled to a refund. 6 Cl. Ct. 250 (1984). The Court of Appeals for the Federal Circuit affirmed, largely on the basis of the Claims Court opinion. 773 F. 2d 1224, 1226 (1985). The United States sought review of the question whether all the events necessary to fix liability had occurred. We granted certiorari, 476 U. S. 1181 (1986). We reverse. I — I hH As we noted in United States v. Hughes Properties, Inc., 476 U. S. 593, 600 (1986), whether a business expense has been “incurred” so as to entitle an accrual-basis taxpayer to deduct it under § 162(a) of the Internal Revenue Code, 26 U. S. C. § 162(a), is governed by the “all events” test that originated in United States v. Anderson, 269 U. S. 422, 441 (1926). In Anderson, the Court held that a taxpayer was obliged to deduct from its 1916 income a tax on profits from munitions sales that took place in 1916. Although the tax would not be assessed and therefore would not formally be due until 1917, all the events which fixed the amount of the tax and determined the taxpayer’s liability to pay it had occurred in 1916. The test is now embodied in Treas. Reg. § 1.461-1(a)(2), 26 CFR § 1.461-1(a)(2) (1986), which provides that “[ujnder an accrual method of accounting, an expense is deductible for the taxable year in which all the events have occurred which determine the fact of the liability and the amount thereof can be" } ]

[ { "docid": "13367408", "title": "", "text": "into for profit, though not connected with the trade or business.” Section 118 of the same act (26 U.S.C.A. § 118 note) provides that no deduction for the loss shall be allowed under the above section 23(e)(2), “where it appears that within thirty days before or after the date of such sale or other disposition the taxpayer has acquired (otherwise than by bequest or inheritance) or has entered into a contract or option to acquire substantially identical property.” Respondent’s brief says: “The motive for the sale was apparently to secure a tax reduction and the taxpayer’s right to do this cannot be questioned. * * * ” The cases on the subject bear out this contention. “The legal right of a taxpayer to decrease the amount of what otherwise would be his taxes, or altogether avoid them, by means which the law permits, cannot be doubted.” Gregory v. Helvering, 293 U.S. 465, 469, 55 S.Ct. 266, 267, 79 L.Ed. 596, 97 A.L.R. 1355. The Circuit Court of Appeals for the Second Circuit has said, in Commissioner v. Dyer, 74 F.(2d) 685, 686: “Any one is privileged to arrange his affairs so that his taxes shall be as low as the statute, permits. * * * But the statute does not permit deduction of a loss claimed to have been sustained in a sale of stock where within thirty days before or after the date of such sale the taxpayer has entered into a contract or option to acquire substantially identical property and the property so acquired is held after such sale,” The burden of proof to establish a deductible loss and the amount of it was upon the taxpayer. Burnet v. Houston, 283 U.S. 223, 227, 51 S.Ct. 413, 75 L.Ed. 991. The taxpayer here established her loss by a showing of a sale, which the Commissioner held not to be an absolute sale, and further held that the losses were not of such a nature as to render them deductible for purposes of taxation. “Unquestionably the burden of proof is on the taxpayer to show that the Commissioner’s determination" }, { "docid": "21372716", "title": "", "text": "WILBUR, Circuit Judge. This is the second appeal from the Board of Tax Appeals in the matter of the income tax for the years 1925 and 1926 of the Signal Gasoline Corporation. We refer to our former decision in 66 F.(2d) 886 for a statement of the facts. It was held in tliat decision that the relation of the Signal Gasoline Corporation to the oil deposits in the land from which they secured the wet gas for their refining or manufacturing plant was such that they were entitled to a deduction for the depletion of the natural resource contained in the land. The matter was sent bade to the Board of Tax Appeals for further consideration. Section 204 (c) (2) of the Revenue Act of 1926 (26 USCA § 935 (c) (2) provides: “In the case of oil and gas wells the allowanee for depletion shall be 27% per cent-urn of the gross income from the property during the taxable year. Such allowance shall not exceed 50 per centum of the net income of the taxpayer (computed without allowance for depletion) from the property, except that in no case shall the depletion allowance be less than it would be if computed without reference to this paragraph. Upon the new hearing before the Board of Tax Appeals, no new evidence was introduced, and while recognizing the force and validity of our previous decision the Board held that the taxpayer had failed to show that it had any gross income from the wells upon which the item of depletion could be based. Consequently, no deduction for depletion was allowed. Since the taxpayer is seeking a deduction for depletion from its otherwise taxable income, the burden of proof is upon it not only to prove that it is entitled to the deduction, but also to prove the correct amount thereof. Helvering v. Taylor, 293 U. S. 507, 514, 55 S. Ct. 287, 79 L. Ed. -; Burnet v. Houston, 283 U. S. 223, 51 S. Ct. 413, 75 L. Ed. 991; Reinecke v. Spalding, 280 U. S. 227, 233, 50 S. Ct. 96," }, { "docid": "11888962", "title": "", "text": "subject of these and other large sales, or as to the sale price of any particular item of whiskey sold. The trial court concluded that the taxpayer had knowingly and intentionally omitted to report large amounts of distilled spirits on hand, and that the inventory reported was fraudulently false, and that the Collector was justified in determining that the best possible method of calculating taxpayer’s floor stocks was to take 86%, as mentioned by the taxpayer, as the proper portion to allocate to distilled spirits. The court held that the Collector was not obliged to accept the State Board’s audit of taxpáyer’s books, and found that the large sales recorded in the ledger together with the taxpayer’s explanation instead of indicating disposal of a large stock rather supported the inference that some of the sales were above ceiling prices. Consequently, on the basis of the large amount of dollar sales, there would be extra merchandise on hand which the taxpayer might be expected to make an effort to conceal. A judgment of dismissal was therefore ordered and was subsequently entered. The main point relied upon -by taxpayer on appeal is that the assessment was arbitrary and excessive, since the Collector could not use the 86% estimate given by the taxpayer as the percentage of distilled spirits sales against gross sales when his books reveal that 96.41% is the proper figure according to the State Board of Equalization audit. The books of a taxpayer are not conclusive either for or against the Collect- or under all circumstances. Bergdoll v. Pollock, 1877, 95 U.S. 337, 24 L.Ed. 512. If taxpayer’s books contain insufficient or improper entries, taxpayer must suffer the consequences. Bergdoll v. Pollock, supra; Burnet v. Houston, 1931, 283 U.S. 223, 228, 51 S.Ct. 413, 75 L.Ed. 991. The burden was on the taxpayer to establish his right to recover. See Helvering v. Taylor, 1935, 293 U.S. 507, 514, 55 S.Ct. 287, 79 L.Ed. 623; United States v. Mitchell, 1926, 271 U.S. 9, 46 S.Ct. 418, 70 L.Ed. 799; United States v. Anderson, 1926, 269 U.S. 422, 46 S.Ct. 131, 70" }, { "docid": "4081734", "title": "", "text": "under the long established accounting practice of the old company. Petitioner’s contention on this point is pure speculation about matters of fact, where the burden of proof was on it to establish the facts at the hearing before the Board, and there is nothing in the evidence to show that the respondent acted arbitrarily. Helvering v. Taylor, 293 U.S. 507, 55 S.Ct. 287, 79 L.Ed. 623. A taxpayer who claims additional deductions should establish the facts with regard to the claim with certainty and if he fails to do so cannot complain when his claims are disallowed. Burnet v. Houston, 283 U.S. 223, 51 S.Ct. 413, 75 L.Ed. 991. We are of the opinion that the decision of the Board on this point was correct. As to the fourth question we are again of the opinion that the action of the Board was proper. As stated above both the petitioner and the old company kept their books upon the accrual basis of accounting. The item of $33,572.77 was paid the State of South Carolina in the year 1922 for the yeár 1921, pursuant to the provisions of an Act of the Assembly of that state, approved March 13, 1922 (South Carolina Statutes at Large, Act No. 502, Vol. 32, page 896), and during the same year, 1922, petitioner also paid the sum of $2,686.24, for the period January 1 to June 30, 1922. The respondent allowed both these items as deductions from the 1922 income as then claimed in the return of the old company, that being the year in which the payments were actually made. It is contended on behalf of the petitioner that under the decision of the Supreme Court in United States v. Anderson et al., 269 U.S. 422, 46 S.Ct. 131, 70 L.Ed. 347, these payments were properly deductible from the income for the year 1921. We are of the opinion that the Anderson Case does not support petitioner’s contention for the reason that in that case the law levying the tax was in effect and the taxes were accruable on the last day of the" }, { "docid": "1465838", "title": "", "text": "fairly be dismissed as negligible. The burden of showing this was upon the taxpayer. Helvering v. Taylor, 293 U.S. 507, 514, 55 S. Ct. 287, 79 L.Ed. 623; Burnet v. Houston, 283 U.S. 223, 227, 51 S.Ct. 413, 75 L.Ed. 991. The only evidence contained in the record on this issue consists of the resolu tion of the directors of the Western Mass. Realty Co., the mortgagor, that they were turning over the property because they were unable to meet the mortgage thereon; the record also contains certificates of condition 'filed by the mortgagor corporation with the State Commissioner of Corporations and Taxation which show that in 1930, 1931 and 1932, the mortgagor’s liabilities exceeded its assets. It cannot be said, however, that the District Court should have held that this evidence alone conclusively eliminated the reasonable possibility of redemption by either the mortgagor or its creditors, or that this evidence alone made it clear in 1930 that the mortgagee had no reasonable expectation of being able to recover a deficiency judgment, collectible in whole or in part, against the mortgagor after the expiration of the three-year redemption period. The taxpayer urges that the ' action of the mortgagor’s directors constituted an “abandonment” of the property, and cites in support of its contention Rogers v. Commissioner, 9 Cir., 103 F.2d 790. In that case, there was a conceded relinquishment of the mortgaged property to the mortgagee in exchange for cancellation of the mortgage debt. The mortgagor parted with all right, title and interest in the land — in exchange, the mortgagee handed over the mortgage notes to the mortgagor. The court held that this gave rise to a deductible loss to the mortgagor. In the case at bar, there is nothing in the record which evidences any agreement, express or implied, between the mortgagor and the mortgagee, that the mortgagee’s entry to foreclose consummated á final, complete transfer of the property from the mortgagor to the mortgagee. Consequently we can find no justification in the record for the plaintiff’s theory that the mortgagor “abandoned” the property in favor of the" }, { "docid": "11888963", "title": "", "text": "ordered and was subsequently entered. The main point relied upon -by taxpayer on appeal is that the assessment was arbitrary and excessive, since the Collector could not use the 86% estimate given by the taxpayer as the percentage of distilled spirits sales against gross sales when his books reveal that 96.41% is the proper figure according to the State Board of Equalization audit. The books of a taxpayer are not conclusive either for or against the Collect- or under all circumstances. Bergdoll v. Pollock, 1877, 95 U.S. 337, 24 L.Ed. 512. If taxpayer’s books contain insufficient or improper entries, taxpayer must suffer the consequences. Bergdoll v. Pollock, supra; Burnet v. Houston, 1931, 283 U.S. 223, 228, 51 S.Ct. 413, 75 L.Ed. 991. The burden was on the taxpayer to establish his right to recover. See Helvering v. Taylor, 1935, 293 U.S. 507, 514, 55 S.Ct. 287, 79 L.Ed. 623; United States v. Mitchell, 1926, 271 U.S. 9, 46 S.Ct. 418, 70 L.Ed. 799; United States v. Anderson, 1926, 269 U.S. 422, 46 S.Ct. 131, 70 L.Ed. 347. He must show that he did not owe the money which he paid and which he seeks to recover. Duffin v. Lucas, 6 Cir., 1932, 55 F.2d 786. A judgment for overpayments cannot be predicated upon a basis of inferences. Philip Mangone Co., Inc. v. United States, 1931, 54 F.2d 168, 73 Ct.Cl. 239. Taxpayer was bound to produce the best available evidence to explain the occurrences viewed by the Collector’s agents and the omissions and inconsistencies in his books. Burnet v. Houston, supra. Where the taxpayer rests his claim for a refund upon the information contained in his books, if the trial court’s finding that his books are wilfully inaccurate or incomplete is supported by the evidence, then he has failed to carry the burden placed upon him to demonstrate that the assessment was wrong. See United States v. Anderson, supra. If the records fail to reflect the proper inventory, a computation may be made in accordance with a method reasonably calculated to reflect the true figure, based on inferences properly drawn" }, { "docid": "15492158", "title": "", "text": "additional deductions were sought, the Tax Court held that the taxpayers failed to sustain their burden of proof. “Unquestionably the burden of proof is on the taxpayer to show that the commissioner’s determination is invalid.” Helvering v. Taylor, 293 U.S. 507, 515, 55 S.Ct. 287, 291, 79 L.Ed. 623 (1935). See also Cohen v. Commissioner of Internal Revenue, 266 F.2d 5, 11 (9th Cir. 1959), wherein this court stated that: “At the outset of a Tax Court proceeding to redetermine a tax deficiency, the Commissioner’s determination is presumed to be correct. . . . The burden of proof is thus placed upon the taxpayer to show that the Commissioner’s determination is invalid.” We conclude that the Tax Court’s holding was not clearly erroneous. The taxpayers’ next contention is that the Commissioner and the Tax Court incorrectly allocated the basis of taxpayers’ real property between land and improvements for purposes of computing allowable deductions for depreciation. Section 167(a) of the Internal Revenue Code of 1954 permits a deduction for wear and tear of property used in the taxpayer’s “trade or business” or held “for the production of income.” The burden of proving the value attributable to a particular asset is upon the taxpayer. Blackstone Realty Co. v. Commissioner of Internal Revenue, 398 F.2d 991, 996-97 (5th Cir. 1968). Where the Commissioner has made an allocation for the purpose of computing depreciation, the allocation is presumptively correct, and the taxpayer has the “heavy burden of proving that the Commissioner’s action was plainly arbitrary.” Lucas v. Structural Steel Co., 281 U.S. 264, 271, 50 S.Ct. 263, 266, 74 L.Ed. 848 (1930). The taxpayers made no such showing. We hold that the allocation made by the Commissioner and approved by the Tax Court was not clearly erroneous. Finally, taxpayers argue that the Tax Court committed error in assessing penalties under section 6653(a) of the Internal Revenue Code of 1954. Justification for the penalty assessment abounds. In no category of deductions for any year did the sum of checks offered to substantiate the deductions equal the amount claimed on taxpayers’ returns. This indicates that the" }, { "docid": "19184902", "title": "", "text": "Notice of Deficiency Plaintiffs contend that the IRS’s statutory notice of deficiency was improper because it failed to provide them with an adequate explanation for why the full amount of their office expense deduction was disallowed (the IRS allowed plaintiffs a $752 deduction). Plaintiffs are mistaken. The law does not require the IRS to give the type of detailed explanation plaintiffs demand. Indeed, the law does not require the notice of deficiency to explain how the IRS reached its determination at all. Schaef fer, 1994 WL 199226, at *13 (citation omitted). Furthermore, regardless of the depth of the IRS’s explanation, plaintiffs bear the burden of proving their entitlement to the deductions they claim. Id. (citing Deputy v. du Pont, 308 U.S. 488, 493, 60 S.Ct. 363, 84 L.Ed. 416 (1940); New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440, 54 S.Ct. 788, 78 L.Ed. 1348 (1934); Burnet v. Houston, 283 U.S. 223, 227, 51 S.Ct. 413, 75 L.Ed. 991 (1931)). In order to receive their claimed office expense deduction, plaintiffs must show that din’s home office satisfies the exclusive use test. Plaintiffs fail to do so. In addition, plaintiffs reasoning is flawed because they attempt to use the IRS’s notice of deficiency about their original tax return to establish a right to the deductions claimed in their amended tax return. These two documents are not related. Plaintiffs amended tax return was filed many months after they received the IRS’s notice of deficiency. Therefore, the notice of deficiency has no bearing on assessing the merits of the deductions in the amended return. March 13, 2006 Notice of Disallowance Plaintiffs argue that they are entitled to their office expense deduction on their amended return because the IRS’s notice of disallowance was wrong. They contend that the IRS’s reason for disallowance of their amended return — “Taxpayer did not submit additional documents” (Cordaro Decl. Ex. T. at US0135) — is false because plaintiffs submitted additional documents to the IRS, which largely consist of store receipts or credit card statements documenting various purchases. Plaintiffs contend that the IRS’s erroneous explanation violated 26 U.S.C." }, { "docid": "13367409", "title": "", "text": "Commissioner v. Dyer, 74 F.(2d) 685, 686: “Any one is privileged to arrange his affairs so that his taxes shall be as low as the statute, permits. * * * But the statute does not permit deduction of a loss claimed to have been sustained in a sale of stock where within thirty days before or after the date of such sale the taxpayer has entered into a contract or option to acquire substantially identical property and the property so acquired is held after such sale,” The burden of proof to establish a deductible loss and the amount of it was upon the taxpayer. Burnet v. Houston, 283 U.S. 223, 227, 51 S.Ct. 413, 75 L.Ed. 991. The taxpayer here established her loss by a showing of a sale, which the Commissioner held not to be an absolute sale, and further held that the losses were not of such a nature as to render them deductible for purposes of taxation. “Unquestionably the burden of proof is on the taxpayer to show that the Commissioner’s determination is invalid.” Helvering v. Taylor, 293 U.S. 507, 515, 55 S.Ct. 287, 291, 79 L.Ed. 623. While the determination of the Commissioner is not conclusive, it is prima facie correct, subject to being proven otherwise by the taxpayer. Wick-wire v. Reinecke, 275 U.S. 101, 105, 48 S.Ct. 43, 72 L.Ed. 184. The transaction, being between members of the same family, is subject to somewhat close scrutiny (Appeal of P. B. Fouke, 2 B.T.A. 219; Uihlein v. Commissioner, 30 B.T.A. 399, 402), but it is not, by that reason alone, to be held to lack good faith. If there was no agreement for the repurchase or return of the stocks, made within 30 days either way of the transaction, then the sale must be held to have been made in good faith. However, even though the repurchases were made beyond the 30-day period, such repurchases are not thereby validated if they were part of an original plan, and they are thereby ineffective to produce deductible losses. Shoenberg v. Commissioner (C.C.A.) 77 F.(2d) 446, 450. While the" }, { "docid": "19184901", "title": "", "text": "the home office was not used exclusively for business purposes). Plaintiffs also fail to show that the items they bought were necessary for Olin’s business. Plaintiffs submit the receipts for the items they bought and make self-serving assertions that Olin needed to buy the items that she did for her business. However, they do not explain why Olin’s business needed to buy the items. There is no evidence that substantiates plaintiffs entitlement to a business expense deduction under section 162. Cf. Schaeffer, 1994 WL 199226, at *5 (allowing a deduction when the taxpayer submitted evidence of the business purpose of the items purchased, and denying a deduction when he did not). Nonetheless, plaintiffs argue that they are entitled to the full amount of their office expense deduction because the IRS failed to follow proper procedures in making a determination about their amended return. Plaintiffs contend that the IRS made two errors: (1) its April 2, 2004 notice of deficiency was inadequate; and (2) its March 13, 2006 notice of disallowance was wrong. April 2, 200% Notice of Deficiency Plaintiffs contend that the IRS’s statutory notice of deficiency was improper because it failed to provide them with an adequate explanation for why the full amount of their office expense deduction was disallowed (the IRS allowed plaintiffs a $752 deduction). Plaintiffs are mistaken. The law does not require the IRS to give the type of detailed explanation plaintiffs demand. Indeed, the law does not require the notice of deficiency to explain how the IRS reached its determination at all. Schaef fer, 1994 WL 199226, at *13 (citation omitted). Furthermore, regardless of the depth of the IRS’s explanation, plaintiffs bear the burden of proving their entitlement to the deductions they claim. Id. (citing Deputy v. du Pont, 308 U.S. 488, 493, 60 S.Ct. 363, 84 L.Ed. 416 (1940); New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440, 54 S.Ct. 788, 78 L.Ed. 1348 (1934); Burnet v. Houston, 283 U.S. 223, 227, 51 S.Ct. 413, 75 L.Ed. 991 (1931)). In order to receive their claimed office expense deduction, plaintiffs must show that din’s" }, { "docid": "7984688", "title": "", "text": "may be one of only a few persons with valuable plasma does not entitle her to immunity from payment of taxes on the large and substantial amounts paid to her each year. Her basis in the plasma is the cost of its constituent parts, which in this case is zero. Our conclusion is reinforced by a number of cases holding that the burden of proving setoffs to income either in the form of expense deductions or cost basis adjustments is on the defendant. See, e. g., Siravo v. United States, 1 Cir., 1967, 377 F.2d 469, 473 (“evidence of unexplained receipts shifts to the taxpayer the burden of coming forward with evidence as to the amount of offsetting expenses, if any”); United States v. Stayback, 3 Cir., 1954, 212 F.2d 313 (no burden on government to prove defendant’s cost basis in the goods sold), cert. denied, 348 U.S. 911, 75 S.Ct. 289, 99 L.Ed. 714 (1955); United States v. Hornstein, 7 Cir., 1949, 176 F.2d 217, 220 (same). See Burnet v. Houston, 283 U.S. 223, 227-28, 51 S.Ct. 413, 415, 75 L.Ed. 991 (1931). Indeed, this court, in United States v. Hiett, 5 Cir., 1978, 581 F.2d 1199, 1202, stated in an analogous context that, “[i]n a prosecution for income tax evasion, once the government has established the defendant’s unreported income ., it is not then required to prove that the defendant has no other deductions. The burden of proving additional deductions is on the defendant.” See McClanahan v. United States, 5 Cir., 1961, 292 F.2d 630 (gambler must prove any offsetting gambling losses). In the present action, appellant has made no attempt whatever to demonstrate any ascertainable basis in her plasma, preferring to rely on the fallacious theory that her basis is hopelessly uncertain. The majority’s holding is also unwise as a practical matter given the likely result of requiring the jury to consider the state of the law. “Obviously, it would be most confusing to a jury to have legal material introduced as evidence and then argued as to what the law is or ought to be.” Cooley" }, { "docid": "10580544", "title": "", "text": "BIGGS, Circuit Judge. The question presented by the case at bar is whether or not the taxpayer is entitled to deductions for depreciation and maintenance expenses incurred in connection with her former home. The pertinent ■statutes are set out in the footnote . The Commissioner ruled against the taxpayer and she filed a petition to the Board of Tax Appeals which decided in favor of the Commissioner. She has filed a petition for review. The facts are simple. For many years prior to 1931 the taxpayer lived in Pittsburgh with her family, using the property in question as her residence. In September, 1931, she inherited another property, Franklin Farms, from her mother and she then moved to it with her family and remained there up to and through the year 1937. She decided to sell or rent her former residence land in 1932 listed it with a real estate agent. The property was not sold or rented, however, except that after January 1, 1934, the taxpayer leased a detached garage at a rental of $25 a month to a night watchman who was guarding the premises. In her income tax returns for 1936 and 1937, the taxpayer claimed deductions for depreciation and maintenance expenses as “loss from rental property”. The Commissioner allowed the taxpayer depreciation on the garage rented by the watchman but disallowed the rest of her claims. This resulted in deficiencies in taxes for 1936 and 1937, the taxable years in question. The Board of Tax Appeals held there had been no conversion of the taxpayer’s former residence for use in trade or business. Deductions are a matter of grace. New Colonial Co. v. Helvering, 292 U.S. 435, 440, 54 S.Ct. 788, 78 L.Ed. 1348. The burden is on the taxpayer affirmatively to show her right to the deductions she claims. Burnet v. Houston, 283 U.S. 223, 227, 51 S.Ct. 413, 75 L.Ed. 991. Deductions for depreciation and maintenance authorized by Section 23 may be applied only to property made use of in a trade or business. When a taxpayer leaves a former home and does not succeed" }, { "docid": "3213090", "title": "", "text": "as to items, payee or amount and were disallowed by the Tax Court. We are concerned here with 26 U.S.C.A. § 213 of the Internal Revenue Code as to permissible deductions for medical care. Such section provides as follows: “(1) The term ‘medical care’ means amounts paid:— “(A) for the diagnosis, cure, miti- ’ gation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body (including amounts paid for accident or health insurance), or “(B) for transportation primarily for and essential to medical care referred to in subparagraph (A).” The taxpayer bears the burden of proving the facts necessary to establish his right to a deduction and the burden of proving the amount of the deduction. See, e. g., Interstate Transit Lines v. Commissioner of Internal Revenue, 1943, 319 U.S. 590, 593, 63 S.Ct. 1279, 87 L.Ed. 1607, rehearing denied, 320 U.S. 809, 64 S.Ct. 26, 88 L.Ed. 489; Burnet v. Houston, 1931, 283 U.S. 223, 227-229, 51 S.Ct. 413, 75 L.Ed. 991; Investors Diversified Services, Inc. v. Commissioner of Internal Revenue, 8 Cir., 1963, 325 F.2d 341, 353; Bennett v. Commissioner of Internal Revenue, 8 Cir., 1944, 139 F.2d 961, 963. See, also, § 1.213-1 (h) of the Income Tax Regulations. Assuming, arguendo, that additional deductions, such as the costs of Mr. Oliver’s week-end visits to his wife at the Mayo Clinic in Rochester, Minnesota, and the expense involved with his taking her for rides while there, could be included as medical expense, there has nevertheless been no substantiation of these claims by documentation of receipts and amounts. Accordingly, on this appeal the Commissioner’s determination, supported by the findings of the Tax Court, must be held correct. Schroeder v. Commissioner of Internal Revenue, 8 Cir., 1961, 291 F.2d 649, 652; Bennett v. Commissioner of Internal Revenue, supra, at 139 F.2d 963. In 1960 the taxpayers moved into a new home they built in Des Moines which contained many special features designed to make things easier for Mrs. Oliver and to aid in her care. Among other things, the house had wide" }, { "docid": "8002130", "title": "", "text": "Revenue, 168 F.2d 28, 31, C.A. 6th. The finding of the Commissioner has the support of a presumption of correctness, and the taxpayer has the burden of proving it to be wrong. Welch v. Helvering, 290 U.S. 111, 115, 54 S.Ct. 8, 78 L.Ed. 212; Patton v. Commissioner of Internal Revenue, supra, 168 F.2d 28, 31, C.A. 6th; Doll v. Glenn, 231 F.2d 186, 188, C.A. 6th. The fact that there were other funds available in the agency ac count to purchase the tax-exempt securities in no way shows that such other funds were so used. It merely shows the possibility that they could have been so used. That is not enough. A taxpayer seeking a deduction must point to an applicable statute and show that he comes within its terms. New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440, 54 S.Ct. 788, 78 L.Ed. 1348. The burden of proof to establish a deduction and the amount of it is upon the taxpayer. Botany Worsted Mills v. United States, 278 U.S. 282, 289-290, 49 S.Ct. 129, 73 L.Ed. 379; Reinecke v. Spalding, 280 U.S. 227, 232-233, 50 S.Ct. 96, 74 L.Ed. 385; Burnet v. Houston, 283 U.S. 223, 227, 51 S.Ct. 413, 75 L.Ed. 991. The fact that the circumstances may be such as to make it difficult or impossible, without fault on the part of the taxpayer, to prove a material fact necessary to establish a claimed deduction does not relieve the taxpayer of this burden. Burnet v. Houston, supra, 283 U.S. 223, 228, 51 S.Ct. 413, 75 L.Ed. 991; Doll v. Glenn, supra, 231 F.2d 186, 188, C.A. 6th. The decision of the Tax Court is affirmed." }, { "docid": "21326620", "title": "", "text": "exhausted all possibility of obtain ing reimbursement for the advances made. Section 23 (k) of the Revenue Act of 1934, c. 277, 48 Stat. 680, 26 U.S.C.A. Int.Rev.Code, § 23, allows as a deduction “debts ascertained to he worthless and charged off within the taxable year.” Indebtedness signifies an unconditional obligation to pay. Gilman v. Commissioner, 8 Cir., 53 F.2d 47, 50, 80 A.L.R. 209. It is obvious before a taxpayer may deduct from bis gross income, as a bad debt, the debt must have had an existence in fact, and the burden of proving that fact devolves upon the taxpayer. Burnet v. Houston, 283 U.S. 223, 227, 51 S.Ct. 413, 75 L.Ed. 991, and Helvering v. Taylor, 293 U.S. 507, 514, 55 S.Ct. 287, 79 L.Ed. 623. And if and when the taxpayer does establish that a debt exists, it yet remains for him to prove that he has exhausted all possibility of obtaining reimbursement. Lauriston Inv. Co. v. Commissioner, 9 Cir., 89 F.2d 327, 328. Now, counsel contends that upon the entry of the judgment of the Milwaukee County Probate Court disallowing the claim, petitioner was entitled to write off the amount thereof as a bad debt. We cannot agree that the disallowance of the claim without more established the fact that a debt existed between the petitioner and Clara L. Bradley. It may well and with equal force, under the state of the record, be contended that that judgment established the fact that no debt existed. However that may be, tlie effect of that judgment was to prevent collection from the estate of Clara I,. Bradley. Assuming, hut not deciding, that a debt exists, has the petitioner exhausted all possibility of obtaining reimbursement? It is here that the point is made that because of the statutory restrictions Lyude Bradley was prohibited from testifying as to the existence of a debt between Clara L. Bradley and the petitioner, i. e., that it was difficult to prove that the. debt existed. But the statute cited did not prohibit petitioner from proving the existence of such a debt (and the" }, { "docid": "7383332", "title": "", "text": "“(A) In general. — All the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, including a reasonable allowance for salaries or other compensation for personal services actually rendered; * * * * * “(2) Non-trade or non-business expenses. — In the case of an individual, all the ordinary and necessary expenses paid or incurred during the taxable year for the production or collection of income, or for the management, conservation, or maintenance of property held for the production of income. * * 26 U.S.C.A., 1952 ed., See. 23. . Burnet v. Houston, 1931, 283 U.S. 223, 227, 51 S.Ct. 413, 75 L.Ed. 991; New Colonial Ice Co. v. Helvering, 1934, 292 U.S. 435, 440, 54 S.Ct. 788, 78 L.Ed. 1348; Helvering v. Taylor, 1935, 293 U.S. 507, 515, 55 S.Ct. 287, 79 L.Ed. 623. . See Commissioner v. Heininger, 1943, 320 U.S. 467, 471, 64 S.Ct. 249, 88 L.Ed. 171; Commissioner v. People’s Pittsburgh Trust Co., 3 Cir., 1932, 60 F.2d 187, 189; Commissioner of Internal Revenue v. Schwartz, 5 Cir., 1956, 232 F.2d 94. . Carnegie Steel Co. v. Cambria Iron Co., 1902, 185 U.S. 403, 414, 22 S.Ct. 698, 46 L.Ed. 968; Aronstam v. All-Russian Central Union of Consumers’ Societies, 2 Cir., 1920, 270 F. 460, 464; Russell-Miller Milling Co. v. Todd, 5 Cir., 1952, 198 F.2d 166. 169. CAMERON, Circuit Judge (dissenting). I am unable to agree with the majority opinion that the trial court did not commit reversible error in concluding that the $22,920.10 paid by the partnership was not a deductible expense and in refusing to permit appellants, upon timely motion, to make proof that “all of the fraudulent acts of which plaintiff, S. B. Brinson, was accused arose out of the business activities of the partnership.” The only thing involved in the hearing before the court at that time was whether appellants were entitled to recover the $22,920.10 they had paid out to their attorneys. The Director opposed the granting of the motion, and the court below denied it and, for failure of proof" }, { "docid": "21326619", "title": "", "text": "County Probate Court established the worthlessness of the debt so as to permit it to deduct the amount thereof in its 1934 income tax return. On the other hand respondent asserts that no debt existed between the petitioner and Clara L. Bradley, but if there actually was a debt, the debtors were Lynde and Harry Bradley, and that there was no ascertainment of worthlessness, since no attempt was made requiring them to repay petitioner. In the instant case the Board made no finding that there was a debt due from Clara L. Bradley to the petitioner. Of course we have not the power to make a finding on that question, even if we should deem the evidence warrants a finding. That is the exclusive province of the Board of Tax Appeals. Helvering v. Rankin, 295 U.S. 123, 131, 55 S.Ct. 732, 79 L.Ed. 1343; and Helvering v. National Grocery Co., 304 U.S. 282, 294, 58 S.Ct. 932, 82 L.Ed. 1346. Therefore, as we view this case, the only question presented is whether the petitioner has exhausted all possibility of obtain ing reimbursement for the advances made. Section 23 (k) of the Revenue Act of 1934, c. 277, 48 Stat. 680, 26 U.S.C.A. Int.Rev.Code, § 23, allows as a deduction “debts ascertained to he worthless and charged off within the taxable year.” Indebtedness signifies an unconditional obligation to pay. Gilman v. Commissioner, 8 Cir., 53 F.2d 47, 50, 80 A.L.R. 209. It is obvious before a taxpayer may deduct from bis gross income, as a bad debt, the debt must have had an existence in fact, and the burden of proving that fact devolves upon the taxpayer. Burnet v. Houston, 283 U.S. 223, 227, 51 S.Ct. 413, 75 L.Ed. 991, and Helvering v. Taylor, 293 U.S. 507, 514, 55 S.Ct. 287, 79 L.Ed. 623. And if and when the taxpayer does establish that a debt exists, it yet remains for him to prove that he has exhausted all possibility of obtaining reimbursement. Lauriston Inv. Co. v. Commissioner, 9 Cir., 89 F.2d 327, 328. Now, counsel contends that upon the entry of" }, { "docid": "4081733", "title": "", "text": "' but signed in the name of the successor corporation, was valid. As to the third question the Board found that- while it was entirely likely that the petitioner would be entitled to some deduction for the undepreciated value of the assets t.aken out of service, the petitioner had failed to produce any evidence on this point and therefore it was impossible for the Board to make any finding as to this deduction. The petitioner kept an account covering reserve for depreciation and charged the expenditures here in question for the years 1920 and 1921 to that account as replacements. This system of bookkeeping was followed by the old company many years prior to the taxable period in controversy and is recognized as a proper method' of accounting under Article 103 of Treasury Regulations 45 and 62 under the 1918 and 1921 Revenue Acts, (40 Stat. 1057; 42 Stat. 227). Under these' circumstances the petitioner cannot complain because these items were not treated in a different way from that in which they had been treated under the long established accounting practice of the old company. Petitioner’s contention on this point is pure speculation about matters of fact, where the burden of proof was on it to establish the facts at the hearing before the Board, and there is nothing in the evidence to show that the respondent acted arbitrarily. Helvering v. Taylor, 293 U.S. 507, 55 S.Ct. 287, 79 L.Ed. 623. A taxpayer who claims additional deductions should establish the facts with regard to the claim with certainty and if he fails to do so cannot complain when his claims are disallowed. Burnet v. Houston, 283 U.S. 223, 51 S.Ct. 413, 75 L.Ed. 991. We are of the opinion that the decision of the Board on this point was correct. As to the fourth question we are again of the opinion that the action of the Board was proper. As stated above both the petitioner and the old company kept their books upon the accrual basis of accounting. The item of $33,572.77 was paid the State of South Carolina in" }, { "docid": "7383331", "title": "", "text": "a fee of $22,500.00 which was paid by the partnership and deducted on its 1951 income tax return. This deduction was disallowed by the Commissioner which resulted in an increase of $22,500.00 in the partnership’s taxable income, and an increase of $11,250.00 in Plaintiffs’ taxable income.” . “The Court concludes that the payment of $22,920.10 by Brinson Construction Company, a partnership, as attorney fees was not an ordinary and necessary business expense of the partnership and was not deductible from gross income on the partnership’s return of income; the Court further concludes that such payment of attorney fees was not an ordinary and necessary non-business expense of the individual partners and was not deductible from gross income by each partner individually and that therefore defendant is entitled to judgment on this issue.” . Internal Revenue Code of 1839: “I 23. Depletions from gross income. “In computing net income there shall be allowed as deductions: “(a) [As amended by See. 121(a), Revenue Act of 1942, c. 619, 56 Stat. 798] Expenses.— “(1) Trade or business expenses.— “(A) In general. — All the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, including a reasonable allowance for salaries or other compensation for personal services actually rendered; * * * * * “(2) Non-trade or non-business expenses. — In the case of an individual, all the ordinary and necessary expenses paid or incurred during the taxable year for the production or collection of income, or for the management, conservation, or maintenance of property held for the production of income. * * 26 U.S.C.A., 1952 ed., See. 23. . Burnet v. Houston, 1931, 283 U.S. 223, 227, 51 S.Ct. 413, 75 L.Ed. 991; New Colonial Ice Co. v. Helvering, 1934, 292 U.S. 435, 440, 54 S.Ct. 788, 78 L.Ed. 1348; Helvering v. Taylor, 1935, 293 U.S. 507, 515, 55 S.Ct. 287, 79 L.Ed. 623. . See Commissioner v. Heininger, 1943, 320 U.S. 467, 471, 64 S.Ct. 249, 88 L.Ed. 171; Commissioner v. People’s Pittsburgh Trust Co., 3 Cir., 1932, 60 F.2d 187, 189; Commissioner of" }, { "docid": "15125269", "title": "", "text": "amount of the tax. Accordingly, because the bankruptcy court was obliged to determine the correct amount of Olshan’s tax liability, the POC was not deficient. B. The Bankruptcy Court’s Rejection of the Entire POC The bankruptcy court found fundamental flaws in the POC, but its findings relate entirely to the claim for unreported business income. Based on these findings, it disallowed the POC in its entirety. The court made no findings with respect to unreported nonbusiness income or overstated business deductions. A bankruptcy court adjudicating a tax claim by the IRS must apply the burden-of-proof rubric normally applied under tax law. See Raleigh v. Ill. Dep’t of Revenue, 530 U.S. 15, 20-21, 120 S.Ct. 1951, 147 L.Ed.2d 13 (2000). “In an action to collect taxes, the government bears the initial burden of proof.” Palmer v. United States, 116 F.3d 1309, 1312 (9th Cir.1997) (citing United States v. Stonehill, 702 F.2d 1288, 1293 (9th Cir.1983)). That burden is satisfied by the IRS’s “deficiency determinations and assessments for unpaid taxes,” which are presumed correct “so long as they are supported by a minimal factual foundation.” Id. However, “[a] showing by the taxpayer that a determination is arbitrary, excessive or without foundation shifts the burden of proof back to the IRS.” Id. (citing Helvering v. Taylor, 293 U.S. 507, 515-16, 55 S.Ct. 287, 79 L.Ed. 623 (1935)). Thus, once the debtor rebuts the presumption, the burden reverts to the IRS to show that its determination was correct. See Keogh v. Comm’r, 713 F.2d 496, 501 (9th Cir.1983). The bankruptcy court made two errors in applying the burden shifting rubric governing tax claims: First, it erroneously rejected the IRS’s claims for unreported nonbusiness income and overstated business expense deductions even though those claims had not been found to be arbitrary or excessive; second, it erroneously rejected the claim for unreported business income in its entirety without considering evidence supporting a portion of that claim. 1. The bankruptcy court improperly rejected the nonbusiness income and business expense deduction items Under the bankruptcy court’s ruling, where the taxpayer has succeeded in proving one item of the" } ]

[ { "docid": "113566", "title": "", "text": "EUGENE A. WRIGHT, Circuit Judge: This is an appeal from an order dismissing an amended complaint on the ground that the United States was an in-. dispensable party to the litigation. The appellant, an Indian tribe acknowledged by the government pursuant to statute [25 U.S.C. § 476], brought suit to quiet title as against claims of the defendants to land in Arizona. The complaint did not allege who was in possession but asserted that defendants made some claims adverse to the title of the tribe. The tribe asserts a superior right under Executive Order No. 1296, February 2, 1911, by which the United States withdrew from settlement certain land in (the territory of) Arizona and set it apart “as an addition to the present Fort Mojave Indian Reservation . . . , for the use and occupation of the Fort Mojave and such other Indians as the Secretary of the Interior may see fit to settle thereon.” Defendants moved to dismiss the action on several grounds, including lack of subject matter jurisdiction and failure to join an indispensable party. The latter ground was the one relied upon by the district court in dismissing without prejudice. It was the view of the trial judge that the Executive Order did not transfer title and no trust patent had been issued to the land in question, leaving title in the government. I. THE INDISPENSABLE PARTY ISSUE Without joining the United States, an Indian tribe may sue in its own right to protect its interest in restricted land. Choctaw & Chicasaw Nations v. Seitz, 193 F.2d 456 (10th Cir. 1951). It is of no consequence that no trust patent had been issued for the land involved. See Skokomish Indian Tribe v. France, 269 F.2d 555 (9th Cir. 1959). As the United States will not be bound by any determination made in a suit to which it is not a party, United States v. Candelaria, 271 U.S. 432, 46 S.Ct. 561, 70 L.Ed. 1023 (1926), “It does not appear that failure to join the United States would radically and injuriously affect its interest nor will" } ]

[ { "docid": "4690519", "title": "", "text": "is characterized as one for ejectment, which is legal in nature. See Fort Mojave Tribe v. Lafollette, 478 F.2d 1016, 1018 n. 3 (9th Cir.1973); see also Navajo Tribe of Indians v. New Mexico, 809 F.2d 1455, 1462 n. 15 (10th Cir.1987). In this case, Corey, who is not in possession, is seeking to establish title against Ellis and his entities, who are in possession. Unlike the typical action for ejectment, however, the trial to determine ownership of the Inn did not result directly in an order dispossessing Ellis of the Inn. It was not until three months after the judgment that Corey obtained possession of the Inn pursuant to 11 U.S.C. § 542(a) (1988), which requires an entity in possession of the debtor’s property to deliver that property to the debtor or the trustee. Because we hold that the Auna Foundation was not entitled to a jury trial as an instrumentality of Ellis, we need not express an opinion as to whether there is generally a right to a jury trial under section 542. . We also note the unorthodox way in which the Auna Foundation became involved in this action. Rather than formally filing a claim of ownership of the Inn and moving to intervene in the proceedings, the Foundation's lawyer, who is also counsel for a number of the other Ellis-controlled entities, added the Foundation's name to various motions filed a few days before the trial. The Foundation never obtained independent counsel, and its litigation posture was identical to that of other Ellis entities. Having failed to go through the normal mechanics for joining as a party in an ongoing district court proceeding, the Foundation failed to establish an independent presence in the litigation. . We note, by way of analogy, that instrumen-talities of foreign nations, which also are not protected by the seventh amendment, are not entitled to jury trials. See Arango v. Guzman Travel Advisors, 761 F.2d 1527, 1534-35 (11th Cir.), cert. denied sub nom., Arango v. Compania Dominicana de Aviacion, 474 U.S. 995, 106 S.Ct. 408, 88 L.Ed.2d 359 (1985); Goar v. Compania Peruana" }, { "docid": "18591160", "title": "", "text": "entered by a district judge sitting as a bankruptcy judge are appealable to the court of appeals. They also pointed out that another appeal arising in Ellis’s bankruptcy proceedings but involving a different piece of property and a different claimant raised the same jurisdictional question. Ellis v. Cassidy, No. 80-4021. Since this court would have to reach the jurisdictional issue as part of the merits of appeal No. 80-4021 and because the motion for reconsideration appeared to have some merit, on April 23 the motions panel directed that appeal No. 81-4081 be reinstated. Because of the common jurisdictional issues, the panel added that appeals Nos. 80-4021 and 81-4081 should be heard by the same merits panel. The court also denied appellants’ emergency motion for stay and alternative emergency motion for stay. At that point, it still appeared that Lillian (through the state court stay) and Kulalani (through the bankruptcy court’s stay with a bond) would be protected from the Louis’ attempts to obtain possession against them. However, this court did not know who was actually in possession. No stay of the bankruptcy court’s judgment having been obtained, on April 13 the Louis filed in the bankruptcy court a motion for issuance of writ of assistance to obtain possession of the Silversword Inn. Hoping to obtain the blessing of the Hawaii Supreme Court, on April 10 the Louis filed in that court a Motion for Determination of Scope of Supersedeas. The Louis represented to the bankruptcy court: Although the Louis request that this Court order the immediate issuance of the Writ of Assistance, the Louis will not deliver the Writ of Assistance to the Marshal of the District of Hawaii until the Supreme Court of the State of Hawaii determines that the state court stay does not preclude the United States Bankruptcy Court for the District of Hawaii from enforcing its Judgment by putting the Louis in possession of the property as against parties other than Lillian Hagopi-an Corey. The motion for issuance of the writ was opposed by Lillian Corey. She argued that the proposed writ was overbroad because it" }, { "docid": "4690499", "title": "", "text": "relied principally on the Silversword Inn’s sale for the required funds, the court found that Corey had enough assets, even aside from the Inn, to pay her creditors’ claims in full. The plan was approved on the basis of the Louis’s votes in favor of confirmation. See Order Confirming Plan Proposed by Loui Creditors (June 24, 1988). Although Ellis, his controlled entities and Helen Ryan, Ellis’s trustee in bankruptcy, opposed the plan, the court did not count their votes because it had previously estimated their claims against the Corey estate to be worthless. The district court was more concerned about appellants’ continuing claims that they were the sole owners of the Silvers-word Inn. On February 9, 1988, the court announced that it would conduct a hearing to resolve the mortgage question and determine ownership of the Inn. This would enable Corey to sell the Inn free and clear of any liens or other interests, and to resolve the Ellis-controlled entities’ claims against Corey arising from their alleged ownership of the Inn. Commencing on June 15, 1988, the district court conducted a five-day bench trial to determine the ownership of the Silvers-word Inn. At this time, the court also denied a number of the Ellis-controlled entities’ pre-trial motions, including a request for a jury trial. Following the trial, the court found that: (1) in accordance with our decision in In re Ellis, it was required to determine the “true substance” of the March 1971 transaction, based on the intent of the parties, Bankr. No. 70-249, Decision and Order (Aug. 12, 1988) at 2, 47-48; (2) the parties to the transaction intended it to be a conveyance in fee simple, not a mortgage, id. at 48-50; and (3) Ellis’s actions were intended solely “to frustrate the efforts of both the Louis and, later, Corey, to gain control of the Inn property,” id. at 40-41. Therefore, the court concluded, Corey was “the sole owner of legal and beneficial title to the unencumbered fee simple interest” in the Silversword Inn. Bankr. Nos. 84-0371, 72-391 and 70-249, Judgment (Aug. 29, 1988) at 2. As a" }, { "docid": "4690500", "title": "", "text": "1988, the district court conducted a five-day bench trial to determine the ownership of the Silvers-word Inn. At this time, the court also denied a number of the Ellis-controlled entities’ pre-trial motions, including a request for a jury trial. Following the trial, the court found that: (1) in accordance with our decision in In re Ellis, it was required to determine the “true substance” of the March 1971 transaction, based on the intent of the parties, Bankr. No. 70-249, Decision and Order (Aug. 12, 1988) at 2, 47-48; (2) the parties to the transaction intended it to be a conveyance in fee simple, not a mortgage, id. at 48-50; and (3) Ellis’s actions were intended solely “to frustrate the efforts of both the Louis and, later, Corey, to gain control of the Inn property,” id. at 40-41. Therefore, the court concluded, Corey was “the sole owner of legal and beneficial title to the unencumbered fee simple interest” in the Silversword Inn. Bankr. Nos. 84-0371, 72-391 and 70-249, Judgment (Aug. 29, 1988) at 2. As a result, Ellis, Ryan and the Ellis-controlled entities, including the Auna Foundation, which claimed to be the current successor to Ellis’s and Upland’s chain of title, were held to have no interest in the property. Finally, on November 30, 1988, the district court ordered the Ellis entities to relinquish possession of the Inn to Corey, pursuant to the turnover provisions of 11 U.S.C. § 542 (1988). The court also enjoined Ellis and his controlled entities from interferring with any efforts by Corey to sell the Inn. II A. Confirmation of the Louis’s Plan for Reorganization 1. Appellants contend that the Louis’s plan for reorganization should have been deemed rejected because Ellis, Ryan and the Ellis-controlled entities, claiming in excess of one million dollars against the Corey estate, voted against the plan. Appellants’ claims included unliquidated sums for “emotional distress,” “paralegal services” and “lost rent” on the Silversword Inn. The Louis’s claims against the estate, by comparison, were approximately $700,000. Thus, if appellants’ claims were valid, their votes against confirmation of the plan would have been sufficient" }, { "docid": "4690517", "title": "", "text": "record shows clearly that, to the extent the learned district judge was inclined to rule against appellants, this was the product of his knowledge of the facts of the case gained during judicial proceedings, not of any extrajudicial information. F. Conclusion Appellants make a variety of other arguments, too numerous and too insubstantial to discuss in any detail. Suffice it to say that we have studied the voluminous record in this case thoroughly and have given careful consideration to all of appellants’ contentions. We find no error that would warrant reversal of the judgments below. The bankruptcy court did an admirable job with a difficult case. Doubtless, not everyone is satisfied with the result; perhaps no one is completely satisfied. Yet, there must be an end to every dispute so that the parties may go on with their lives unburdened by the demands and risks of litigation, and the court may turn its attention to other cases. After two decades of litigation, that point has been reached. This case is at an end. . The Honorable Martin Pence, Senior District Judge, presided over Corey’s Chapter 11 proceedings because Hawaii’s only bankruptcy judge recused himself. We treat an appeal from the decision of a district judge in a bankruptcy proceeding as an appeal from the final decision of a district court appealable under 28 U.S.C. § 1291 (1982). Klenske v. Goo (In re Manoa Fin. Co.), 781 F.2d 1370, 1372 (9th Cir.1986) (per curiam), cert. denied sub nom., Yamamoto v. Klenske, 479 U.S. 1064, 107 S.Ct. 948, 93 L.Ed.2d 997 (1987). . Appellant Kulalani also appeals the court’s denial of its request for a jury trial. However, by its own admission, Kulalani neither held title nor possession of the Silversword Inn at the time of trial. Thus, we see no basis for its participation as a party. Because Kulalani could not legitimately claim an interest in the Inn, there were no issues of fact for a jury to consider. . Generally when a party not in possession seeks to establish title to land against one who is in possession, the action" }, { "docid": "4690515", "title": "", "text": "the March 1971 transaction as a sale. C.Summary Judgment Requiring Appellants to Relinquish Possession of the Inn Appellants argue that the bankruptcy court incorrectly held, as a matter of law, that they were required to relinquish possession of the Silversword Inn to Corey. However, under 11 U.S.C. § 542(a) (1988), an entity in control of property that a trustee could use or sell pursuant to 11 U.S.C. § 363 (1988), must turn that property over to the trustee. Appellants may be correct in arguing that, prior to relinquishing control of the property, a creditor is entitled to some form of security; however, appellants do not in fact have any valid claims against Corey’s estate, all such claims having been found worthless. Thus, they cannot claim that their rights as creditors have been prejudiced. On the merits, we hold that the district court’s grant of summary judgment was proper because there were' no material issues of fact in dispute. Even if equitable defenses such as laches were available to defeat the operation of section 542, appellants have failed to show they would be entitled to any such defenses. D. Validity of Injunction Appellants argue that the court’s order enjoining them from communicating with prospective buyers of the Silversword Inn violates their first amendment rights of speech and association. However, the injunction merely bars them from making false claims of ownership regarding the Inn; they are free to speak of anything else they please. Because the injunction only restrains false or misleading commercial speech, it is consistent with the first amendment. See U-Haul Int’l, Inc. v. Jartran, Inc., 793 F.2d 1034, 1042 (9th Cir.1986). E. Judicial Bias Appellants make a broadside attack on the impartiality of Judge Pence sitting as a bankruptcy judge. We are unimpressed. A judge’s comments aimed at facilitating orderly proceedings are not, in and of themselves, evidence of bias. See Hansen v. Commissioner, 820 F.2d 1464, 1467 (9th Cir.1987). Moreover, judicial bias must arise from extrajudicial sources. United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778 (1966). In this case, the" }, { "docid": "18591190", "title": "", "text": "had claimed a mortgage lien against the Silversword Inn, which was released on September 30, 1980. Upland owned and leased furniture and equipment on the Silversword Inn premises until January 1, 1981, but in affidavits signed in November 1980 and March 1981, Upland disclaimed any interest in the property. The Sword, of which Florence Ellis was president and for which Helen Ryan, the trustee in bankruptcy for William Ellis, was the attorney, had leased a portion of the Silversword Inn from Ellis from January 1, 1980 and all of the property from Kulalani from September 1, 1980. The lease terminated on November 30, 1980. The Sword subsequently sold all of its personal property on the premises and disassociated its domicile from the premises. These entities had sought dismissal in the bankruptcy court of the claims involving them on the grounds that any controversy between the Louis and them was rendered moot by their disclaimers of interest in the property. Nevertheless, the bankruptcy court entered judgment against them on the merits. . Appeal No. 80-4021 was properly before this court because the district court (Judge King) issued an order of dismissal of an appeal from the bankruptcy court’s judgment. . See note 9, infra. . In fact, Kulalani never posted the bond. Thus, the stay did not take effect. . The proposed writ listed by name all parties except Lillian Corey, presumably in attempted deference to the state court stay. . Plaintiffs had filed in the district court a Suggestion of Statutory Disqualification of Judge King. . The Intermediate Court of Appeals has concurrent jurisdiction with the Hawaii Supreme Court, H.R.S. § 602-57, and hears cases which are assigned to it by the chief justice of the supreme court or his designee, H.R.S. § 602-5(8). All appeals are filed in the first instance with the supreme court. Id. Generally, the less important cases are assigned to the intermediate court. See Rule 27, Rules of the Supreme Court of the State of Hawaii. . Before that issue can be reached, however, it must appear that this court has jurisdiction to entertain an" }, { "docid": "4690518", "title": "", "text": "Honorable Martin Pence, Senior District Judge, presided over Corey’s Chapter 11 proceedings because Hawaii’s only bankruptcy judge recused himself. We treat an appeal from the decision of a district judge in a bankruptcy proceeding as an appeal from the final decision of a district court appealable under 28 U.S.C. § 1291 (1982). Klenske v. Goo (In re Manoa Fin. Co.), 781 F.2d 1370, 1372 (9th Cir.1986) (per curiam), cert. denied sub nom., Yamamoto v. Klenske, 479 U.S. 1064, 107 S.Ct. 948, 93 L.Ed.2d 997 (1987). . Appellant Kulalani also appeals the court’s denial of its request for a jury trial. However, by its own admission, Kulalani neither held title nor possession of the Silversword Inn at the time of trial. Thus, we see no basis for its participation as a party. Because Kulalani could not legitimately claim an interest in the Inn, there were no issues of fact for a jury to consider. . Generally when a party not in possession seeks to establish title to land against one who is in possession, the action is characterized as one for ejectment, which is legal in nature. See Fort Mojave Tribe v. Lafollette, 478 F.2d 1016, 1018 n. 3 (9th Cir.1973); see also Navajo Tribe of Indians v. New Mexico, 809 F.2d 1455, 1462 n. 15 (10th Cir.1987). In this case, Corey, who is not in possession, is seeking to establish title against Ellis and his entities, who are in possession. Unlike the typical action for ejectment, however, the trial to determine ownership of the Inn did not result directly in an order dispossessing Ellis of the Inn. It was not until three months after the judgment that Corey obtained possession of the Inn pursuant to 11 U.S.C. § 542(a) (1988), which requires an entity in possession of the debtor’s property to deliver that property to the debtor or the trustee. Because we hold that the Auna Foundation was not entitled to a jury trial as an instrumentality of Ellis, we need not express an opinion as to whether there is generally a right to a jury trial under section 542." }, { "docid": "4690512", "title": "", "text": "clouding title to the Inn and frustrating the efforts of both the Louis and Corey to gain control of the Inn. Id. at 40-41. Finally, the record discloses that the Auna Foundation acquired title to the Inn long after notice of the trial had been circulated, barely a week before the scheduled trial date. Because Ellis and a number of his other controlled entities have made substantial claims against Corey’s estate, they would not themselves be entitled to a jury trial. They lacked the power to change that result by placing the Inn into the hands of a fully controlled instrumentality. We look beyond the form of the transaction and conclude that the Foundation was not entitled to a jury trial. 6. Finally, we consider the merits of the district court’s judgment on the mortgage question. Appellants contend that the district court incorrectly found the 1971 transaction between Ellis and Hagopi-an to be an outright sale, rather than a mortgage. As we held in In re Ellis, under Hawaii law, a deed absolute coupled with a repurchase option creates a mortgage when the parties so intend. 647 F.2d at 1247; see Kawauchi v. Tabata, 49 Haw. 160, 413 P.2d 221 (1966). These eases establish that the intent of the parties is the controlling factor in determining whether a transaction is a sale or a mortgage. See In re Ellis, 647 F.2d at 1247; see also In re Estate of Damon, 5 Haw.App. 304, 689 P.2d 204, 209 (1984) (“the intent of the parties is crucial in determining the nature of the transaction”). After a five-day trial, the district court determined that the parties to the March 1971 transaction had intended it to be an outright sale, subject merely to the repurchase option held by Ellis. Unlike the lender in Kawauchi, Corey and Hagopian never discussed with Ellis the prospect of making a loan and they paid a fair market price. These findings are not clearly erroneous, particularly since the intent of the parties, as found by the district court, coincides with the face of the transaction. Moreover, we seriously doubt" }, { "docid": "4690501", "title": "", "text": "result, Ellis, Ryan and the Ellis-controlled entities, including the Auna Foundation, which claimed to be the current successor to Ellis’s and Upland’s chain of title, were held to have no interest in the property. Finally, on November 30, 1988, the district court ordered the Ellis entities to relinquish possession of the Inn to Corey, pursuant to the turnover provisions of 11 U.S.C. § 542 (1988). The court also enjoined Ellis and his controlled entities from interferring with any efforts by Corey to sell the Inn. II A. Confirmation of the Louis’s Plan for Reorganization 1. Appellants contend that the Louis’s plan for reorganization should have been deemed rejected because Ellis, Ryan and the Ellis-controlled entities, claiming in excess of one million dollars against the Corey estate, voted against the plan. Appellants’ claims included unliquidated sums for “emotional distress,” “paralegal services” and “lost rent” on the Silversword Inn. The Louis’s claims against the estate, by comparison, were approximately $700,000. Thus, if appellants’ claims were valid, their votes against confirmation of the plan would have been sufficient to defeat it, see 11 U.S.C. §§ 1126(a), 1129(a) (1988), or at least force the court to use the “cram down” provisions of 11 U.S.C. § 1129(b) (1988). The district court, however, did not consider appellants’ votes because it had estimated their claims against the Corey estate to be zero. Under 11 U.S.C. § 502(c)(1) (1988), a court shall estimate any contingent or unliquidated claims against the estate that “would unduly delay the administration of the case.” Given the highly speculative nature of appellants’ claims, the district court correctly found estimation to be appropriate. Otherwise, the confirmation of the Louis’s plan would have been unduly delayed to the detriment of Corey and her real creditors. A court has broad discretion when estimating the value of an unliquidated claim. Addison v. Langston (In re Brints Cotton Mktg., Inc.), 737 F.2d 1338, 1341 (5th Cir.1984); Bittner v. Borne Chem. Co., 691 F.2d 134, 136 (3d Cir.1982). Here, the court made factual findings regarding the value of appellants’ claims. See, e.g., Withdrawal and Vacating of Order Estimating Claim" }, { "docid": "4690514", "title": "", "text": "whether the rule in Kawauchi applies to this case. The Hawaiian practice of construing certain conveyances in fee simple as mortgages is an equitable concept, designed to protect a mortgagor’s right of redemption from overreaching lenders. See Kahau v. Booth, 10 Haw. 332, 334 (1896) (“Once a mortgage always a mortgage, and the mortgagor is allowed to redeem.”). In this case, however, the district court found that any overreaching was done by Ellis, not Corey. According to the court, Ellis “intended and attempted to use his secret knowledge and interpretation of Kawauchi to ensnare, entrap, and defraud an unsophisticated friend who meant only to help him.” Decision and Order at 52. We do not believe the Hawaii courts would apply an equitable doctrine to reach an inequitable result. See Shinn v. Edwin Yee, Ltd., 57 Haw. 215, 553 P.2d 733, 744 (1976) (a party may not “profit by his own misconduct”); Kawauchi, 413 P.2d at 236 (“he who seeks equity must do equity”) (internal quotations omitted). We hold therefore that the district court properly construed the March 1971 transaction as a sale. C.Summary Judgment Requiring Appellants to Relinquish Possession of the Inn Appellants argue that the bankruptcy court incorrectly held, as a matter of law, that they were required to relinquish possession of the Silversword Inn to Corey. However, under 11 U.S.C. § 542(a) (1988), an entity in control of property that a trustee could use or sell pursuant to 11 U.S.C. § 363 (1988), must turn that property over to the trustee. Appellants may be correct in arguing that, prior to relinquishing control of the property, a creditor is entitled to some form of security; however, appellants do not in fact have any valid claims against Corey’s estate, all such claims having been found worthless. Thus, they cannot claim that their rights as creditors have been prejudiced. On the merits, we hold that the district court’s grant of summary judgment was proper because there were' no material issues of fact in dispute. Even if equitable defenses such as laches were available to defeat the operation of section 542, appellants" }, { "docid": "4690498", "title": "", "text": "substantial judgment against her, Corey filed for protection under Chapter 11 of the 1978 Bankruptcy Code. After unsuccessfully appealing the state court judgment to the Hawaii Supreme Court, Corey commenced an adversary proceeding, No. 85-0185, seeking to challenge the Louis’s state court judgment and to establish her own rights to the Silversword Inn. On September 15, 1986, the district court, sitting in bankruptcy, granted summary judgment in favor of the Louis as to their state court judgment, but permitted Corey to go forward with her claim of ownership to the Inn. However, because the district court apparently believed that the dismissal of Adv. Pro. Nos. 72-391(3) and 72-391(4) barred Corey from making a claim for title of the Inn in her own bankruptcy proceeding, the court sua sponte vacated the dismissal of those actions on April 7, 1988. On February 29, 1988, the Louis filed a proposed Chapter 11 plan of reorganization of Corey’s estate. Under the plan, Corey’s creditors would be paid in full through a staged sale of her assets. Although the plan relied principally on the Silversword Inn’s sale for the required funds, the court found that Corey had enough assets, even aside from the Inn, to pay her creditors’ claims in full. The plan was approved on the basis of the Louis’s votes in favor of confirmation. See Order Confirming Plan Proposed by Loui Creditors (June 24, 1988). Although Ellis, his controlled entities and Helen Ryan, Ellis’s trustee in bankruptcy, opposed the plan, the court did not count their votes because it had previously estimated their claims against the Corey estate to be worthless. The district court was more concerned about appellants’ continuing claims that they were the sole owners of the Silvers-word Inn. On February 9, 1988, the court announced that it would conduct a hearing to resolve the mortgage question and determine ownership of the Inn. This would enable Corey to sell the Inn free and clear of any liens or other interests, and to resolve the Ellis-controlled entities’ claims against Corey arising from their alleged ownership of the Inn. Commencing on June 15," }, { "docid": "18591149", "title": "", "text": "Since we reverse the judgment on which this writ depends, it must be vacated. The third was the oral denial by District Judge Heen of a preliminary injunction sought by three persons not party to the bankruptcy proceedings, and not claiming title through William Ellis, but apparently aligned with him in interest, and apparently in possession of the property. These parties had filed a separate action in the district court seeking a declaration that the judgments issued by Judge King in the bankruptcy proceeding were of no effect as to their interest in and possession of the property. Although that action is still pending, the plaintiffs appeal from the oral denial of their request for a preliminary injunction against the U.S. Marshal. Appeal No. 81-4318. In view of our disposition of the first two appeals, this third one is moot, and we therefore dismiss it. FACTS In March 1971, William Ellis (Ellis) conveyed the Silversword Inn to Bessie Hagopian, the sister of Lillian Corey (Lillian). Lillian acted as Hagopian’s agent in this transaction. The conveyance was subject to a lease and included an option to repurchase which, with extensions, expired unex-ercised on December 31, 1976. In 1972, Ellis filed a Chapter XII proceeding in the bankruptcy court in Hawaii. Despite the 1971 conveyance, one of the items listed in the bankruptcy estate was the Silversword Inn. In July 1973, Hagopian conveyed her interest in the property to Lillian. In January 1977, Herbert and Alberta Loui (Louis) and Lillian executed a standard form Deposit Receipt, Offer and Acceptance (DROA) for the sale of the Silversword Inn for $575,000. In accordance with the DROA, the Louis placed $175,000 in escrow. Lillian refused to proceed with the sale on August 1, 1977, the scheduled closing date. On August 12, 1977, the Louis filed a complaint against Lillian in Hawaii state court for specific performance and damages for breach of contract (Hawaii Civil No. 52308). Among Lillian’s contentions in defense were that Ellis’s transaction with Hagopian was not a sale of the property, but a mortgage transaction in the form of a sale. Thus," }, { "docid": "4690511", "title": "", "text": "title to the Inn. The Foundation therefore has not subjected itself to the court’s equitable power to consider claims against the estate. Id. at 2799 n. 14 (citing Katchen v. Landy, 382 U.S. 323, 335, 86 S.Ct. 467, 475, 15 L.Ed.2d 391 (1966)). Thus, in order to determine whether the Foundation was entitled to a jury trial, we normally would be required to consider whether the district court’s determination of the title issue was legal or equitable in nature. We need not handle this prickly issue , however, because the Foundation was not, in any event, entitled to a jury trial as it is the controlled instrumentality of an entity that, under Granfinanciera, itself was not entitled to a jury. The district court found that the Foundation is under the sole control of Ellis and members of his “immediate and controlled family.” Bankr. Nos. 84-0371, 72-391 and 70-249, Decision and Order (Aug. 12,1988) at 40. The court also found that the transactions leading up to the Foundation’s claim were carried out with the intent of clouding title to the Inn and frustrating the efforts of both the Louis and Corey to gain control of the Inn. Id. at 40-41. Finally, the record discloses that the Auna Foundation acquired title to the Inn long after notice of the trial had been circulated, barely a week before the scheduled trial date. Because Ellis and a number of his other controlled entities have made substantial claims against Corey’s estate, they would not themselves be entitled to a jury trial. They lacked the power to change that result by placing the Inn into the hands of a fully controlled instrumentality. We look beyond the form of the transaction and conclude that the Foundation was not entitled to a jury trial. 6. Finally, we consider the merits of the district court’s judgment on the mortgage question. Appellants contend that the district court incorrectly found the 1971 transaction between Ellis and Hagopi-an to be an outright sale, rather than a mortgage. As we held in In re Ellis, under Hawaii law, a deed absolute coupled with" }, { "docid": "18591187", "title": "", "text": "the conclusions just stated. Kaplan v. Guttman, 217 F.2d 481 (9th Cir. 1954), did not involve property that was actually or constructively in the possession of the bankrupt or trustee. The same may be said of the disputed certificates of deposit in First State Bank & Trust Co. v. Sand Springs State Bank, 528 F.2d 350 (10th Cir. 1976). Nor has our research disclosed any authorities to the contrary. We conclude that the bankruptcy court did have jurisdiction to adjudicate the competing claims to the subject property of all the parties to the adversary proceeding. II. Appeal No. 81-4213 and Appeal No. 81-4318 On April 20, 1981, on motion of the Louis, Judge King ordered the issuance of a writ of assistance directing the marshal to eject from the Silversword Inn Ellis and other named parties, and “all and every person and entity holding possession of said premises.” The appeal is taken on the basis that the writ was overbroad because it ran, by its terms, against persons who were not party to or bound by the underlying judgment, and on the basis that the issuance of such a writ was barred by the supersedeas order then in effect, staying execution of the state court judgment obtained by the Louis against Lillian. In view of our decision reversing and remanding the underlying judgment, the writ must be vacated. We need not reach the substantive questions raised by the appellants. When the writ of assistance was issued, William Ellis’s wife, Florence Ellis, was in possession of the premises as the lessee of William Ellis’s daughter, Lei-Anne Grouard. Grouard claimed a title independent of that claimed by William Ellis in the bankruptcy proceedings. The marshal notified Florence Ellis and Grouard that he would execute the writ against them on June 3. They went to federal district court seeking a declaration that the bankruptcy court judgment and writ were ineffective against them, and requesting a preliminary injunction against execution of the writ. The request for preliminary injunction was denied orally by Judge Heen, and plaintiffs took this appeal. Because we have determined that" }, { "docid": "4690510", "title": "", "text": "findings of fraud, misrepresentation and estoppel not pleaded by Corey, as required by Bankr.R. 7009 (incorporating Fed.R.Civ.P. 9(b)). However, the court explained that its decision that Corey was the true owner of the Sil-versword Inn was not dependent on these findings; the court’s decision rested on its interpretation of the 1971 transaction be-' tween Ellis and Hagopian as a sale rather than a mortgage. 5. Appellant Auna Foundation argues that the court improperly denied it a jury trial on the issue of who owns the Inn. In Granfinanciera, S.A. v. Nordberg, — U.S. -, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989), the Supreme Court established the limits of the seventh amendment jury right in the context of bankruptcy proceedings. The Court held that the seventh amendment does not protect a creditor’s right to jury trial in a bankruptcy proceeding when that creditor has made claims against the debtor’s estate. Id. 109 S.Ct. at 2799. The Auna Foundation, however, has not itself made a claim against Corey’s bankruptcy estate; it merely opposes Corey’s effort to establish title to the Inn. The Foundation therefore has not subjected itself to the court’s equitable power to consider claims against the estate. Id. at 2799 n. 14 (citing Katchen v. Landy, 382 U.S. 323, 335, 86 S.Ct. 467, 475, 15 L.Ed.2d 391 (1966)). Thus, in order to determine whether the Foundation was entitled to a jury trial, we normally would be required to consider whether the district court’s determination of the title issue was legal or equitable in nature. We need not handle this prickly issue , however, because the Foundation was not, in any event, entitled to a jury trial as it is the controlled instrumentality of an entity that, under Granfinanciera, itself was not entitled to a jury. The district court found that the Foundation is under the sole control of Ellis and members of his “immediate and controlled family.” Bankr. Nos. 84-0371, 72-391 and 70-249, Decision and Order (Aug. 12,1988) at 40. The court also found that the transactions leading up to the Foundation’s claim were carried out with the intent of" }, { "docid": "4690504", "title": "", "text": "U.S. 462, 476, 103 S.Ct. 1303, 1311, 75 L.Ed.2d 206 (1983); Worldwide Church of God v. McNair, 805 F.2d 888, 890-91 (9th Cir.1986). 3. Appellants’ claim that the state court improperly interfered with the federal courts’ exclusive jurisdiction over bankruptcy proceedings is also without merit. The Hawaii judgment was against Corey who, throughout the state court proceed ings, was not yet under the protection of federal bankruptcy laws. Thus, the judgment could not prejudice her rights as a Chapter 11 debtor. We also reject appellants’ claim that the Hawaii judgment was an unlawful preference, because appellants have failed to show that Corey was insolvent or in danger of becoming insolvent at the time the judgment was recorded, see 11 U.S.C. § 547(b) (1988) (“the trustee may avoid any transfer of an interest of the debtor in property ... made while the debt- or was insolvent”). The state court judgment also did not interfere with the Ellis bankruptcy proceedings, as the state court never purported to grant title to the Louis or to affect Ellis’s use or possession of the Silversword Inn. The judgment thus did not affect Ellis’s rights as a debtor under the federal bankruptcy laws. Compare Gonzales v. Parks, 830 F.2d 1033, 1035-36 (9th Cir.1987) (state court was without jurisdiction to consider whether filing of bankruptcy petition constituted abuse of process). 4. Similarly unavailing is appellants’ challenge to the Louis’s plan on the grounds that it was not proposed in good faith as required by 11 U.S.C. § 1129(a)(3) (1988). In order to satisfy the statutory requirement of good faith, a plan must be intended to achieve a result consistent with the objectives of the Bankruptcy Code. Stolrow v. Stolrow’s, Inc. (In re Stolrow’s, Inc.), 84 B.R. 167, 172 (Bankr. 9th Cir.1988); Jorgensen v. Federal Land Bank of Spokane (In re Jorgensen), 66 B.R. 104, 108-09 (Bankr. 9th Cir.1986). Granting the district court’s findings substantial deference, we find no absence of good faith on the part of the Louis in proposing this plan. The Louis's plan appears to be a fair and well-reasoned effort to end the years" }, { "docid": "4690505", "title": "", "text": "or possession of the Silversword Inn. The judgment thus did not affect Ellis’s rights as a debtor under the federal bankruptcy laws. Compare Gonzales v. Parks, 830 F.2d 1033, 1035-36 (9th Cir.1987) (state court was without jurisdiction to consider whether filing of bankruptcy petition constituted abuse of process). 4. Similarly unavailing is appellants’ challenge to the Louis’s plan on the grounds that it was not proposed in good faith as required by 11 U.S.C. § 1129(a)(3) (1988). In order to satisfy the statutory requirement of good faith, a plan must be intended to achieve a result consistent with the objectives of the Bankruptcy Code. Stolrow v. Stolrow’s, Inc. (In re Stolrow’s, Inc.), 84 B.R. 167, 172 (Bankr. 9th Cir.1988); Jorgensen v. Federal Land Bank of Spokane (In re Jorgensen), 66 B.R. 104, 108-09 (Bankr. 9th Cir.1986). Granting the district court’s findings substantial deference, we find no absence of good faith on the part of the Louis in proposing this plan. The Louis's plan appears to be a fair and well-reasoned effort to end the years of litigation surrounding the Corey and Ellis bankruptcies; it results in payment in full of all creditors, with a substantial portion of the estate remaining in the debtor, an uncommon result in bankruptcy proceedings. The district court was well within its discretion in approving the plan. B. Ownership of the Silversword Inn Central to this dispute is the question of ownership of the Silversword Inn. Appellants raise a number of objections, both procedural and substantive, to the district court’s finding that Corey owns the Inn. We address each of these in turn. 1. Appellants first challenge the district court’s sua sponte order of April 7, 1988, vacating its earlier order dismissing adversary proceedings Nos. 72-391(3) and 72-391(4). They contend that Fed.R.Civ.P. 60(b), as made applicable by Bankr.R. 9024, prohibits a district court from vacating an earlier decision on its own motion. They further argue that the dismissal of Nos. 72-391(3) and 72-391(4) bars Corey from litigating ownership of the Inn. Thus, appellants contend, because the earlier dismissal was improperly vacated, the district court’s judgment finding" }, { "docid": "18591148", "title": "", "text": "FERGUSON, Circuit Judge: These three consolidated appeals arise out of a complicated series of transactions, in and out of court, over the last decade. William Ellis and parties roughly aligned with him in interest, in various combinations, appeal from three dispositions adverse to their claims to an improved parcel of land in Hawaii known as the Silversword Inn. The first judgment, entered by District Judge King in consolidated adversary proceedings Nos. 72-391(3) and 72-391(4) in a Chapter XII proceeding filed by Ellis in 1972, summarily declared that the defendants-appellees, Herbert and Alberta Loui, are the owners of the subject property and that the other parties to Bankruptcy Nos. 72-391(3) and 72-391(4) have no interest in it. Appeal No. 81-4081. For the reasons stated below, we reverse the judgment and remand the case for further proceedings. The second judgment, a writ of assistance issued by Judge King, directed the marshal to put the Louis in possession of the Silvers-word Inn as against “all and every person and entity holding possession of said premises.” Appeal No. 81-4213. Since we reverse the judgment on which this writ depends, it must be vacated. The third was the oral denial by District Judge Heen of a preliminary injunction sought by three persons not party to the bankruptcy proceedings, and not claiming title through William Ellis, but apparently aligned with him in interest, and apparently in possession of the property. These parties had filed a separate action in the district court seeking a declaration that the judgments issued by Judge King in the bankruptcy proceeding were of no effect as to their interest in and possession of the property. Although that action is still pending, the plaintiffs appeal from the oral denial of their request for a preliminary injunction against the U.S. Marshal. Appeal No. 81-4318. In view of our disposition of the first two appeals, this third one is moot, and we therefore dismiss it. FACTS In March 1971, William Ellis (Ellis) conveyed the Silversword Inn to Bessie Hagopian, the sister of Lillian Corey (Lillian). Lillian acted as Hagopian’s agent in this transaction. The conveyance" }, { "docid": "4690497", "title": "", "text": "intervention in No. 72-391(3), the court consolidated Nos. 72-391(3) and 72-391(4). On September 12, 1980, the bankruptcy court issued a ruling that, as a matter of law, the March 1971 transaction between Ellis and\" Hagopian was a transfer in fee simple and not a mortgage. Ellis and his entities appealed this judgment, and we reversed. We held that the bankruptcy court improperly relied on the face of the documents in the 1971 transaction without, as required by Hawaii law, examining the intent of the parties. See In re Ellis, 674 F.2d at 1247. We remanded for the bankruptcy court to make a “fresh determination of the mortgage question.” Id. at 1250. Before the bankruptcy court could resolve the mortgage question, however, appellants moved to dismiss the adversary proceeding. Meanwhile, the Louis returned to state court and, on April 24, 1984, obtained a judgment for $757,000 in the form of “delay damages” for the rental value of the property from August 1, 1977, to April 30, 1983, attorney’s fees and emotional distress. In response to this substantial judgment against her, Corey filed for protection under Chapter 11 of the 1978 Bankruptcy Code. After unsuccessfully appealing the state court judgment to the Hawaii Supreme Court, Corey commenced an adversary proceeding, No. 85-0185, seeking to challenge the Louis’s state court judgment and to establish her own rights to the Silversword Inn. On September 15, 1986, the district court, sitting in bankruptcy, granted summary judgment in favor of the Louis as to their state court judgment, but permitted Corey to go forward with her claim of ownership to the Inn. However, because the district court apparently believed that the dismissal of Adv. Pro. Nos. 72-391(3) and 72-391(4) barred Corey from making a claim for title of the Inn in her own bankruptcy proceeding, the court sua sponte vacated the dismissal of those actions on April 7, 1988. On February 29, 1988, the Louis filed a proposed Chapter 11 plan of reorganization of Corey’s estate. Under the plan, Corey’s creditors would be paid in full through a staged sale of her assets. Although the plan" } ]

[ { "docid": "23394245", "title": "", "text": "the standard applied in Lincoln Engineering Co. v. Stewart-Warner Corp., quoted supra, and rejected the argument that since two courts had made findings of fact' in favor of the alleged invention the Supreme Court should not undertake to review them. It said (340 U.S. at page 153, 71 S.Ct. at page 131): “The questions of general importance considered here are not contingent upon resolving conflicting testimony, for the facts are little in dispute. We set aside no finding of fact as to invention, for none has been made except as to the extension of the counter, which cannot stand as a matter of law.” (Emphasis added) The courts of appeals began to recognize that in the Great A. & P. Tea Co. decision the Supreme Court had now more precisely defined the nature of the judicial process by which the question of invention is to be determined and from that time on this court has generally adhered to the rule which Judge Lemmon has so well stated for us in this decision. The first real test of where this court stood following the Great A. & P. Tea Co. case came in Himes v. Chadwick, 9 Cir., 199 F.2d 100. In that case a jury returned a verdict finding the claims in issue to be valid and infringed. Upon a motion for judgment notwithstanding the verdict, the court (Judge Lemmon presiding), granted the motion and entered judgment holding the claims in issue to be invalid. On appeal it was argued that the question of the presence or absence of patentable invention was a question of fact within the province of the jury to determine and the right of the court to determine invalidity of the patents notwithstanding the jury’s verdict was challenged. In dealing with the question of the right and duty of the trial judge to direct a verdict in a patent case, where the circumstances indicated that the jury had departed from the relevant legal criteria for determining patentability, this court cited and relied upon the Third Circuit’s decision in Packwood v. Briggs & Stratton Corp., 195 F.2d" } ]

[ { "docid": "17229865", "title": "", "text": "S. Time Corp., supra, 165 F.2d at p, 854. On the other hand, competition must be “fair” both to the consumer, and so far as possible, to the trade. Consumer protection has been limited (in this context) to the prevention of confusion, i. e., the customer should not be misled into purchasing an article from one producer in the belief that it was made by someone else or emanates from some other (but unidentified) source. Norwich Pharmacal Co. v. Sterling Drug, Inc., supra, 271 F.2d at p. 571. In order to recover on this theory, the plaintiff must show that a “special significance attaches in the public mind to the nonfunctional attributes of its wares”; or, in other words, that they have a “secondary meaning.” Ibid.; American-Marietta Co. v. Krigsman, 275 F.2d 287, 289 (2nd Cir. 1960). To establish such secondary meaning in this case Hygienic must prove that (1) the soap dish design is a mark of distinction identifying its source, and, also that (2) purchasers are moved to buy the soap dish because of its source. Blisscraft of Hollywood v. United Plastics Co., 294 F.2d 697; Lucien Lelong, Inc. v. Lander Co., Inc., 164 F.2d 395, 397 (2nd Cir. 1947). This it has not done. In this connection the trial court stated it was of the opinion that “there can be no doubt that plaintiff failed to prove that its soap dish was associated with the plaintiff in the mind of the buying public.” 189 F.Supp. 793., Even if we assume, as the lower court apparently did, that “the deceptive similarities” between Hygienic’s and Hutzler’s soap dishes made it seem that they both emanated from the same source (not identified as Hygienic) and thereby established secondary meaning, Mastercrafters Clock & Radio Co. v. Vacheron & Constantin-LeCoultre Watches, Inc., 221 F.2d 464, 466 (2nd Cir. 1955), cert. denied, 350 U.S. 832, 76 S.Ct. 67, 100 L.Ed. 743 (1955), Hygienic has not shown that a single consumer bought one of these soap dishes because of its source. On the contrary, we agree entirely with the trial judge that “it is" }, { "docid": "17229872", "title": "", "text": "began to use the bags when it was selling Hygienic’s dish, and merely continued to use this not unusual wrapping for its own dishes after the “break” in 1954. Nor did Hutzler copy the merchandising technique from Hygienic; indeed, the opposite is true, and Hygienic adopted the idea years later in 1957. Similarly, it was Hutzler that first used saddle tops in 1954 when it was packaging Hygienic’s dishes under the Hutzler manufacturing imprint—apparently without objection from any quarter. And despite the fact that Hygienic was not wrapping its own dishes in this manner (in 1954) Hutzler substituted a new and distinctive label on the packages which contained the Hutzler dish. The trial court’s finding that Hutzler’s packaging practices were copied from Hygienic is wholly without support in the evidence; and the conclusions which rest upon it cannot stand. Furthermore, there was no attempt to mislead retail outlets into buying Hutzler’s dishes from Salzman in the belief that they were continuing to get Hygienic’s product as before. On November 17, 1954, the very day that Salzman notified Hygienic that it was terminating their relationship (as it had the right to do), Salzman circulated a letter to all of its customers which began: “Dear Customer: “Please be advised that we no longer represent the Hygienic Specialties Co., for the sale of Hygienic * * * Soap Dishes * * ” (PI. Exh. #9). This letter, in addition to factors already mentioned, is completely inconsistent with Hygienic’s claim that Salzman was “palming off.” ■ Finally, the court below based its holding that appellants engaged in unfair competition on a finding that Salzman and Hutzler violated Hygienic’s property rights. Liability can sometimes be predicated on such a theory, Blisscraft of Hollywood v. United Plastics Co., 2 Cir., 294 F.2d 698; Lincoln Restaurant Corp. v. Wolfies Restaurant Inc., supra, but the theory’s reach is uncertain. So far, it appears to have been limited to cases involving deceptive misappropriation of property rights and cases in which there was interference with confidential or contractual relationships. Norwich Pharmacal Co. v. Sterling Drug, Inc., supra, 271 F.2d at" }, { "docid": "17229869", "title": "", "text": "not because of their source, we are unwilling to infer from the mere fact of Hutzler’s commercial success that actual deception occurred. We next turn to the trial court’s finding that Hutzler was “palming off” its soap dish for Hygienic’s product. It has long been settled that: “A man is not to sell his own goods under the pretence that they are the goods of another man; he cannot be permitted to practice such a deception, nor to use the means which contribute to that end. He cannot therefore be allowed to use names, marks, letters, or other indicia, by which he may induce purchasers to believe, that the goods which he is selling are the manufacture of another person.” Perry v. Truefitt, 6 Beav. 72, 49 Eng.Rep. 749, 752 (Rolls, 1842). Goodyear’s India Rubber Glove Mfg. Co. v. Goodyear Rubber Co., 128 U.S. 598, 604, 9 S.Ct. 166, 32 L.Ed. 535 (1888); 1 Nims, Unfair Competition and Trademarks § 9a. Traditionally, a plaintiff complaining of “palming off” must prove the perpetration of fraud, “i. e., that the defendant is so foisting his product on the market that there is resulting confusion or a likelihood of confusion as to its source in the mind of the buying public.” Speedry Products, Inc. v. Dri Mark Products, Inc., 271 F.2d 646, 648 (2nd Cir. 1959). In the present case the claim of “palming off” is based on (1) the similarity of the Hygienic and Hutzler dishes, (2) the manner in which Hutzler packaged and labeled its product, and (3) Salzman’s distribution practices. The first argument is clearly not enough to establish unfair competition. True, Hutzler’s soap dish is similar to the Hygienic product—but all two-piece polyethylene soap dishes must be similar because their design is, for the most part, dictated by their function. As we have already pointed out, Hygienic’s design was admittedly controlled by utilitarian requirements. A fortiori, Hutzler’s dish, regardless of Hutzler’s intentions, was subject to the same limitations. To paraphrase Gertrude Stein’s commentary on a rose, a dish is a dish is a dish. Moreover, the soap dishes were" }, { "docid": "17229864", "title": "", "text": "disturbed by Hutzler’s “slavish imitation” of Hygienic’s “successful product.” This reaction is understandable. “[A]t first glance it might seem intolerable that one manufacturer should be allowed to sponge on another by pirating * * * without license or recompense and reap the fruits sown by another. Morally and ethically such practices strike a discordant note. It cuts across the grain of justice to permit an intruder to profit not only by the efforts of another but at his expense as well.” American Safety Table Co. v. Schreiber, supra, 269 F.2d at pp. 271-272. But, as Judge Medina points out in the quoted opinion, “this initial response to the problem has been curbed in deference to the greater public good,” apparently on the principle that “imitation is the life blood of competition.” Id. at p. 272. Therefore, the courts have repeatedly held that the copying of an unpatented design does not in itself constitute unfair competition. Algren Watch Findings Co., Inc. v. Kalinsky, 197 F.2d 69, 70 (2nd Cir. 1952); General Time Instruments Corp. v. U. S. Time Corp., supra, 165 F.2d at p, 854. On the other hand, competition must be “fair” both to the consumer, and so far as possible, to the trade. Consumer protection has been limited (in this context) to the prevention of confusion, i. e., the customer should not be misled into purchasing an article from one producer in the belief that it was made by someone else or emanates from some other (but unidentified) source. Norwich Pharmacal Co. v. Sterling Drug, Inc., supra, 271 F.2d at p. 571. In order to recover on this theory, the plaintiff must show that a “special significance attaches in the public mind to the nonfunctional attributes of its wares”; or, in other words, that they have a “secondary meaning.” Ibid.; American-Marietta Co. v. Krigsman, 275 F.2d 287, 289 (2nd Cir. 1960). To establish such secondary meaning in this case Hygienic must prove that (1) the soap dish design is a mark of distinction identifying its source, and, also that (2) purchasers are moved to buy the soap dish because" }, { "docid": "17229873", "title": "", "text": "Salzman notified Hygienic that it was terminating their relationship (as it had the right to do), Salzman circulated a letter to all of its customers which began: “Dear Customer: “Please be advised that we no longer represent the Hygienic Specialties Co., for the sale of Hygienic * * * Soap Dishes * * ” (PI. Exh. #9). This letter, in addition to factors already mentioned, is completely inconsistent with Hygienic’s claim that Salzman was “palming off.” ■ Finally, the court below based its holding that appellants engaged in unfair competition on a finding that Salzman and Hutzler violated Hygienic’s property rights. Liability can sometimes be predicated on such a theory, Blisscraft of Hollywood v. United Plastics Co., 2 Cir., 294 F.2d 698; Lincoln Restaurant Corp. v. Wolfies Restaurant Inc., supra, but the theory’s reach is uncertain. So far, it appears to have been limited to cases involving deceptive misappropriation of property rights and cases in which there was interference with confidential or contractual relationships. Norwich Pharmacal Co. v. Sterling Drug, Inc., supra, 271 F.2d at p. 572; Continental Casualty Co. v. Beardsley, Inc., 151 F.Supp. 28, 43-45 (S.D.N.Y.1957), aff’d, 253 F.2d 702 (2nd Cir.), cert. denied, 358 U.S. 816, 79 S.Ct. 25, 3 L.Ed.2d 58 (1958). (a) Misappropriation Although certain kinds of “goodwill” have long been recognized by this Court as constituting property, Washburn v. National Wall-Paper Co., 81 F. 17, 20 (C.C.A.2, 1897), there is one kind of good-will that is not: “It is usually described as the good-will of the product. It is the favor which an article of commerce, regardless of the identity of its maker, wins from the public, not because of its origin nor because of any peculiar skill or care that has gone into its manufacture but because of the nature, usefulness and other characteristics of the article itself. It represents the popularity of an article without regard to its manufacturer or seller. Such good-will cannot be bought or sold. It does not belong to anyone, not even to him who may have created it by popularizing the article which is involved. It is" }, { "docid": "17229862", "title": "", "text": "invention is an elusive one, especially when applied to elements of design. However, we are convinced that Hygienic’s soap dish clearly does not meet the statutory test. Furthermore, the Hygienic soap dish patent is invalid for another reason; it is not ornamental. In order to qualify for a patent a design “must be the product of aesthetic skill and artistic conception.” Blisscraft of Hollywood v. United Plastics Co., supra; Burgess Vibrocrafters, Inc. v. Atkins Industries, Inc., 204 F.2d 311, 313 (7th Cir. 1953). The inventor of the soap dish design, Barnet D. Kaplan, admitted that the only design element not resulting from a mechanical function was a group of horizontal lines on the side of the dish. A design dictated solely by mechanical or functional requirements is not patentable, Hopkins v. Waco Products, Inc., 205 F.2d 221, 223 (7th Cir. 1953); Blisscraft of Hollywood v. United Plastics Co., 189 F.Supp. 333, 337 (S.D.N.Y.1960), aff’d, 294 F.2d 694 (2nd Cir. 1961), and Hygienic’s soap dish, much like the Blisscraft pitcher, “has no particular aesthetic appeal in line, form, color, or otherwise. It contained no dominant artistic motif either in detail or in its overall conception. * * * The reaction which [it] inspires is simply that of the usual, useful and not unattractive piece of kitchenware.” 294 F.2d 696. It is true that a presumption of validity attaches to the issuances of a patent; but this presumption is rebuttable. Blisscraft of Hollywood v. United Plastics Co., 2 Cir., 294 F.2d 696. In this case, for the reasons stated, we hold the design patent is invalid. Therefore, the trial court erred in refusing to enter a judgment notwithstanding verdict in favor of Salzman and Hutzler, and in granting Hygienic’s motion for judgment n. o. v. against Cotton. In view of this holding, we do not reach the question of infringement. Bergman v. Aluminum Lock Shingle Corp., 251 F.2d 801, 804 (9th Cir. 1957). Unfair Competition Since Hygienic’s soap dish was not protected by a valid design patent, there was little to prevent others from producing similar articles. The District Court was greatly" }, { "docid": "17229877", "title": "", "text": "privileges by contract. This we cannot do. We know of no law which requires a distributor to give up the right to deal with manufacturers of its choosing absent contractual restrictions on that free choice or other considerations not present here. And where the distributor exercises that choice, without having deliberately diverted business from a manufacturer while it was an agent, and without resorting to deception or palming off afterwards, there is no unfair competition. Similarly, it was not unlawful for Hutzler to propose to Salzman that the distributor substitute Hutzler’s line for Hygienic’s where this would not violate Hygienic’s contract rights. We believe that in holding to the contrary the court below overlooked “the difference between a deliberate attempt to deceive and a deliberate attempt to compete.” Norwich Pharmacal Co. v. Sterling Drug, Inc., supra, 271 F.2d at p. 572. Reversed and complaint dismissed. . Appellants’ counterclaim for unfair competition against Hygienic was dismissed for a failure of proof, but this ruling is not challenged on appeal. . Hygienic Specialties Co. v. H. G. Salzman, Inc., 189 F.Supp. 790 (S.D.N.Y. (1960). . Hygienic does not appeal Judge MacMahon’s decision on the trademark issue. . U. S. Design Patent D-149,066 (Pl.Exh. #3) was issued to Barnet D. Kaplan (inventor), and Abner Weiner (assignee of one-half interest) on March 23, 1948. They, in turn, formed Hygienic as a partnership. . In 1957 Hygienic, for the first time, began to wrap its own soap dishes in individual polyethylene bags with a cardboard saddle top having the words “2 Pc. Unbreakable Plastic Hygienic Soap Dish, U. S. Patent No. 149066,” on one side, and “Hygienic Specialties Co., New York 13, N. Y.” on the other. The saddle top was approximately the same size as the one originally used by Hutzler, but Ilygienic’s was colored read, white, and blue. The trial court found that Hygienic had done this as early as 1954. D.C., 189 F.Supp. 792. This is clearly erroneous. Rule 52(a), Fed.R.Civ.P., 28 U.S.C. . A jury in a patent case is not free to treat invention as a concept broad enough to" }, { "docid": "17229855", "title": "", "text": "KAUFMAN, Circuit Judge. Hygienic Specialties, Inc. (Hygienic) brought suit against H. G. Salzman, Inc. (Salzman), Hutzler Mfg. Co. (Hutzler), and C. B. Cotton & Co., Inc. (Cotton), for alleged infringement of its design patent on a soap dish and infringement of the trademark “Hygienic.” The complaint also alleged that Salzman and Hutzler had engaged in unfair competition. The issues of design patent validity and infringement were submitted to a jury. It returned a verdict against Salzman and Hutzler but not against Cotton. Denying a motion by Salzman and Hutzler for judgment notwithstanding verdict, Judge MacMahon granted Hygienic’s motion for judgment n. o. v. against Cotton. Subsequently, as trier of fact on the remaining counts of the complaint, the judge found Salzman and Hutzler guilty of unfair competition; however, he denied Hygienic’s claim for trademark infringement. The defendants appeal from the judgments against them, and Salzman and Hutzler ask review of the denial of their motion for judgment notwithstanding verdict. Hygienic was organized in 1947 to manufacture and sell a two-piece plastic soap dish on which it held a design patent. The unique feature of this soap dish was a latticed tray upon which a bar of soap could rest while excess water dripped into a receptacle below. The enterprise was modestly successful from the start. However, Hygienic did not “clean up” (the dish being, so to speak, a “wash out”) until it engaged Salzman, a manufacturer’s representative dealing in household items, as its exclusive sales agent for metropolitan New York, northern New Jersey, and the City of Philadelphia. In the five years that Salzman continued in this capacity (1949-1954), Hygienic’s net earnings increased from $6,000. to $15,000. One of Salzman’s earliest customers for Hygienic’s soap dish was Hutzler, a wholesaler who bought the dishes in bulk and resold them to retail outlets. Sometime between February and April of 1949 Hutzler initiated the practice of wrapping the soap dishes in individual translucent polyethylene bags. Affixed to these bags was a five inch cardboard label, folded in half. This label, or “saddle top” as it is called, was colored yellow, white, and" }, { "docid": "14651168", "title": "", "text": "MacMAHON, District Judge. This is an action for damages for infringement of plaintiff’s design patent on a plastic soap dish. Plaintiff also seeks to recover for trademark infringement and unfair competition. The issue of patent infringement was tried before a jury which found the patent valid and infringed by the defendants H. G. Salzman, Inc. and Hutzler Mfg. Co. Although the defendants stipulated that defendant C. B. Cotton & Co., Inc., had molded the infringing soap dish, the jury found, nevertheless, that Cotton had not infringed the patent. On motion, at the conclusion of the trial, the Court dismissed for failure of proof counterclaims for unfair competition and for a qui tam penalty. The issues remaining for decision are: (1) plaintiff’s claim for unfair competition; (2) plaintiff’s claim for trademark infringement; (3) plaintiff’s motion for judgment against C. B. Cotton & Co., Inc., notwithstanding the verdict; and (4) damages suffered by plaintiff. The parties stipulated not to submit the question of damages to the jury, but to reserve this for the Court’s determination. The material facts relevant to the claim for unfair competition are in the main not disputed. Barnet Kaplan, a semi-retired accountant, and Abner Weiner, a part-time salesman, organized Hygienic Specialties Co. in 1947 to manufacture and sell a soap dish which Kaplan had designed. The soap dish consists of a 4%\" by 3Yz\" dish, approximately 1 deep, supporting a latticed tray which holds a bar of soap above the bottom of the dish. The bar of soap is kept dry by the dripping of excess water into the dish where it is ’held out of contact with the soap. Originally the product was made of cellulose acetate in various colors and was sold by Hygienic to jobbers and wholesalers in either individually wrapped packages or in bulk lots for ultimate sale to the public at 39 cents each. The organizers, who devoted only part of their time to Hygienic’s fledgling business, retained representatives to sell the product. The business prospered in a modest way, and by 1949 Hygienic’s annual net profits had reached approximately $6,000. In 1949," }, { "docid": "17229861", "title": "", "text": "1912, 195 F. 522, 523. But the utilization of old elements in combination must represent an exercise of inventive skill and creative talent beyond that of the ordinary designer chargeable with knowledge of the prior art. (Citations omitted.) What plaintiff did amounted to nothing more than an unstartling regrouping of old elements which demonstrated no originality born of inventive faculty. This is not enough. Knickerbocker Plastic Co. v. Allied Molding Corp., 2 Cir., 1950, 184 F.2d 652, 655. It is not sufficient that plaintiff has shown the talent of an adapter; a manifestation of the art of the inventor was required. Blisscraft v. Rona Plastic Corp., D.C.S.D.N.Y.1954, 123 F.Supp. 552, affirmed 2 Cir., 1955, 219 F.2d 238. * * * ” 294 F.2d 696. The fact that the design may be “new and pleasing enough to catch the trade” alone is not sufficient. Nat Lewis Purses, Inc. v. Carole Bags, Inc., 83 F.2d 475, 476 (C.C.A.2, 1936); Amerock Corp. v. Aubrey Hardware Mfg., Inc., 275 F.2d 346, 348 (7th Cir. 1960). Concededly, this concept of invention is an elusive one, especially when applied to elements of design. However, we are convinced that Hygienic’s soap dish clearly does not meet the statutory test. Furthermore, the Hygienic soap dish patent is invalid for another reason; it is not ornamental. In order to qualify for a patent a design “must be the product of aesthetic skill and artistic conception.” Blisscraft of Hollywood v. United Plastics Co., supra; Burgess Vibrocrafters, Inc. v. Atkins Industries, Inc., 204 F.2d 311, 313 (7th Cir. 1953). The inventor of the soap dish design, Barnet D. Kaplan, admitted that the only design element not resulting from a mechanical function was a group of horizontal lines on the side of the dish. A design dictated solely by mechanical or functional requirements is not patentable, Hopkins v. Waco Products, Inc., 205 F.2d 221, 223 (7th Cir. 1953); Blisscraft of Hollywood v. United Plastics Co., 189 F.Supp. 333, 337 (S.D.N.Y.1960), aff’d, 294 F.2d 694 (2nd Cir. 1961), and Hygienic’s soap dish, much like the Blisscraft pitcher, “has no particular aesthetic appeal in" }, { "docid": "23158965", "title": "", "text": "talent of an. adapter; a manifestation of the art of' the inventor was required. Blisscraft. v. Rona Plastic Corp., D.C.S.D.N.Y.1954, 123 F.Supp. 552, affirmed 2 Cir., 1955, 219 F.2d 238. We agree with the district court that plaintiff’s pitcher is lacking in the indispensable inventive ingredient. Plaintiff’s commercial success, in marketing its pitcher does not, without invention, make for patentability. Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 1950, 340 U.S. 147, 153, 71 S.Ct. 127, 95 L.Ed. 162; Toledo Pressed Steel Co. v. Standard Parts, Inc., 1939, 307 U.S. 350, 357, 59 S.Ct. 897, 83 L.Ed. 1334. Plaintiff’s patent was invalid for another reason. To be patentable, a design, in addition to being new and inventive, must be ornamental. This means, that it must be the product of aesthetic-skill and artistic conception. Burgess Vibrocrafters, Inc. v. Atkins Industries, 7 Cir., 1953, 204 F.2d 311. Plaintiff’s pitcher has no particularly aesthetic appeal in line, form, color, or otherwise. It contained no dominant artistic motif either in detail or in its overall conception. Its lid, body, handle and base retain merely their individual characteristics when used in conjunction with each other without producing any combined artistic effect. The reaction which the pitcher inspires is simply that of the usual, useful and not unattractive piece of kitchenware. The design fails to meet the ornamental prerequisite of the statute. While the issuance of the patent entitles it to a presumption of validity, this presumption is rebuttable. Here it must yield to the evidence of lack of invention and lack of ornamentation. The view which we take of the matter makes it unnecessary for us to consider whether the utilitarian or mechanical features of the pitcher were so dominant in the design conception as to prevent patentability. The issue of infringement is, of course, moot. Unfair Competition (Count 2) This count charges defendant with unfair competition in selling plastic pitchers which copy the form and configuration of the pitchers manufactured by similar to the labels used by plaintiff, plaintiff, and in affixing labels deceptively The complaint alleges that as a result of" }, { "docid": "14651181", "title": "", "text": "Infringement Plaintiff’s claim of trademark infringement is rejected because the plaintiff failed to show on the trial that the term “Hygienic”, as used in connection with its product, had acquired the rights of a trademark. A mark which is merely descriptive of the article manufactured and which can be employed with truth by other manufacturers is not entitled to legal protection as a trademark. Q-Tips, Inc. v. Johnson & Johnson, 3 Cir., 1953, 206 F.2d 144, certiorari denied 1953, 346 U.S. 867, 74 S.Ct. 106, 98 L.Ed. 377. In this case, “Hygienic” was used in a descriptive sense and was employed in a general manner. Indeed, plaintiff’s advertising appears to have stressed the term “2 Piece” as much as “Hygienic”. Furthermore, there is no proof that the defendants used the term “Hygienic” after November, 1954, and it is abundantly clear that the plaintiff permitted, or at least acquiesced in, its use by the defendants before that time. Judgment Notwithstanding Verdict Against C. B. Cotton & Co., Inc. Plaintiff’s motion for judgment against C. B. Cotton & Co., Inc., notwithstanding the verdict in Cotton’s favor, is granted. It was stipulated that Cotton molded the soap dishes for the defendants. Hutzler testified that Cotton had molded between one and two million of the infringing dishes. Unquestionably, Cotton was an infringer. 35 U.S.C.A. § 271. Just as a single sale of an infringing article may be sufficient to establish infringement, B. B. Chemical Co. v. Cataract Chemical Co., D.C.W.D.N.Y. 1938, 25 F.Supp. 472, so also the manufacture of a single infringing item subjects the maker to suit for infringement. Caterpillar Tractor Co. v. International Harvester Co., 9 Cir., 1939, 106 F.2d 769. Here it is undisputed that Cotton manufactured not one but more than a million of the infringing soap dishes. The Court clearly charged the jury on Cotton’s participation in the proscribed activities almost in the language of the statute. The jury, having found the patent valid and infringed, its verdict in favor of Cotton was clearly against the evidence. The judgment hereby directed against Cotton is limited to the patent infringement" }, { "docid": "17229863", "title": "", "text": "line, form, color, or otherwise. It contained no dominant artistic motif either in detail or in its overall conception. * * * The reaction which [it] inspires is simply that of the usual, useful and not unattractive piece of kitchenware.” 294 F.2d 696. It is true that a presumption of validity attaches to the issuances of a patent; but this presumption is rebuttable. Blisscraft of Hollywood v. United Plastics Co., 2 Cir., 294 F.2d 696. In this case, for the reasons stated, we hold the design patent is invalid. Therefore, the trial court erred in refusing to enter a judgment notwithstanding verdict in favor of Salzman and Hutzler, and in granting Hygienic’s motion for judgment n. o. v. against Cotton. In view of this holding, we do not reach the question of infringement. Bergman v. Aluminum Lock Shingle Corp., 251 F.2d 801, 804 (9th Cir. 1957). Unfair Competition Since Hygienic’s soap dish was not protected by a valid design patent, there was little to prevent others from producing similar articles. The District Court was greatly disturbed by Hutzler’s “slavish imitation” of Hygienic’s “successful product.” This reaction is understandable. “[A]t first glance it might seem intolerable that one manufacturer should be allowed to sponge on another by pirating * * * without license or recompense and reap the fruits sown by another. Morally and ethically such practices strike a discordant note. It cuts across the grain of justice to permit an intruder to profit not only by the efforts of another but at his expense as well.” American Safety Table Co. v. Schreiber, supra, 269 F.2d at pp. 271-272. But, as Judge Medina points out in the quoted opinion, “this initial response to the problem has been curbed in deference to the greater public good,” apparently on the principle that “imitation is the life blood of competition.” Id. at p. 272. Therefore, the courts have repeatedly held that the copying of an unpatented design does not in itself constitute unfair competition. Algren Watch Findings Co., Inc. v. Kalinsky, 197 F.2d 69, 70 (2nd Cir. 1952); General Time Instruments Corp. v. U." }, { "docid": "17229870", "title": "", "text": "e., that the defendant is so foisting his product on the market that there is resulting confusion or a likelihood of confusion as to its source in the mind of the buying public.” Speedry Products, Inc. v. Dri Mark Products, Inc., 271 F.2d 646, 648 (2nd Cir. 1959). In the present case the claim of “palming off” is based on (1) the similarity of the Hygienic and Hutzler dishes, (2) the manner in which Hutzler packaged and labeled its product, and (3) Salzman’s distribution practices. The first argument is clearly not enough to establish unfair competition. True, Hutzler’s soap dish is similar to the Hygienic product—but all two-piece polyethylene soap dishes must be similar because their design is, for the most part, dictated by their function. As we have already pointed out, Hygienic’s design was admittedly controlled by utilitarian requirements. A fortiori, Hutzler’s dish, regardless of Hutzler’s intentions, was subject to the same limitations. To paraphrase Gertrude Stein’s commentary on a rose, a dish is a dish is a dish. Moreover, the soap dishes were not identical. In addition to differences in the legs and side decoration, the Hygienic and Hutz ler names were displayed prominently on the bottom of their respective soap dishes. In any event, the combination of neeessary similarity and actual differences would make it clearly erroneous to infer from the soap dishes alone that Hutzler was “palming off.” However, it would seem that the lower court based its finding not merely on the similarity of the dishes, but on its observation that Hutzler wrapped each of its dishes in a “translucent bag identical to Hygienic’s,” a bag which “effectively clouds” differences. Furthermore, the court was impressed by Hutzler’s “slavish” imitation of Hygienic’s “style of packaging and labeling,” a practice considered all the more deceptive because “defendants treacherously substituted their copy into the same market through the identical channels of distribution previously enjoyed by plaintiff.” We do not agree. Hutzler did not begin to use translucent bags in order to hide the differences between its product and the Hygienic dish, as the lower court’s opinion suggests. Hutzler" }, { "docid": "17229881", "title": "", "text": "of unfair competition, although jurisdiction was predicated on 28 U.S.C. § 1838(b), and the evidence indicates multi-state activity. 189 F.Supp. 794 n. 1. Compare the majority opinion in Maternally Yours, Inc. v. Your Maternity Shop, Inc., 234 F.2d 538, 540 n. 1 (2nd Cir. 1956) with Judge Clark’s dissent at p. 545. The issue is complex; and, as these opinions vividly demonstrate, it is capable of evoking considerable controversy. See 1 Moore, Federal Practice, 659-661, 3770-3773 (2nd ed. 1960); American Safety Table Co., Inc. v. Schreiber, 269 F.2d 255, 270-271 (2nd Cir.), cert. denied, 361 U.S. 915, 80 S.Ct. 259, 4 L.Ed.2d 185 (1959). The parties in this case do not discuss the matter, and no assertion has been made that the result reached below or by this court would be in any way dependent upon a choice of federal or state law. Cf. Norwich Pharmacal Co. v. Sterling Drug, Inc., 271 F.2d 569, 571 (2nd Cir. 1959), cert. denied, 362 U.S. 919, 80 S.Ct. 671, 4 L.Ed.2d 739 (1960). Nor do we think such choice is crucial, for the federal and state law is not essentially different; and both federal and state courts have readily borrowed decisions from one another and from the entire body of law in this field. American Safety Table Co., Inc. v. Schreiber, supra, 269 F.2d at p. 270. Under the circumstances we shall rely upon the “indeterminate general law.” Blisscraft of Hollywood v. United Plastics Co., 2 Cir., 294 F.2d 694, 697. . 189 F.Supp. 793. . It must be remembered that the imitation complained of must be the design, and not the functional elements of the dish, which are in the public domain. American-Marietta Co. v. Krigsman, supra. We have not researched the genealogy of soap dishes but they have been around about as long as soap; and Hygienic is not the inventor of polyethylene. . Since we hold that Hygienic failed to establish any secondary meaning, it is unnecessary to review, at this point, the lower court’s finding that the sale of Hutzler’s soap dishes was likely to produce confusion—which it is" }, { "docid": "17229867", "title": "", "text": "unlikely” that a buyer would “give any thought at all to the identity of the producer. Manifestly, a purchaser of this simple and inexpensive household item * * * relies not on the reputation of the producer, but upon the apparent quality and eye appeal of the product itself.” 189 F. Supp. 794. And as Judge Learned Hand stated almost a half a century ago, “it is an absolute condition to any relief whatever” on this theory “that the public cares who does make them, and not merely for their appearance and structure.” Crescent Tool Co. v. Kilborn & Bishop Co., 247 F. 299, 300 (C.C.A.2, 1917); Chas. D. Briddell, Inc. v. Alglobe Trading Corp., supra, 2 Cir., 194 F.2d 416. The absence of secondary meaning does not always preclude recovery on a claim for unfair competition, because competition must be “fair” to the trade as well as to the consumer. Thus, the law recognizes a right of relief against certain practices having destructive effect primarily on a producer’s competitive position, to wit, actual deception of purchasers, palming off, and appropriation of property rights. Blisscraft of Hollywood v. United Plastics Co., 294 F.2d 698; Lincoln Restaurant Corp. v. Wolfies Restaurant Inc., 291 F.2d 302, 303 (2nd Cir.), cert. denied, 368 U.S. 889, 82 S.Ct. 143, 7 L.Ed.2d 88 (1961); Norwich Pharmacal Co. v. Sterling Drug, Inc., supra, 271 F.2d at p. 571 and federal and New York cases cited therein. We note that the trial court found that there was an “absence of direct evidence of confusion.” 189 F.Supp. 793. Hutzler sold more than a million of its own soap dishes, but Hygienic did not produce any customer who had been actually misled. See Lucien Lelong, Inc. v. Lander Co., Inc., supra, 164 F.2d at p. 397. Inasmuch as some confusion is a natural, and very likely an unavoidable result of permissible imitation, American Safety Table Co., Inc. v. Schreiber, supra, 269 F.2d at p. 273, and, as we have already held, it is manifest that a customer would purchase these soap dishes because of their quality and appearance, and" }, { "docid": "17229858", "title": "", "text": "17, 1954, informed the manufacturer that it no longer intended to handle Hygienic’s product. Thereafter Salzman sold Hutzler’s soap dishes exclusively. Bearing the identification “Hutzler, Made in U. S. A.,” these dishes were packaged in polyethylene bags with the Hygienic-Hutzler saddle top (which had been previously used) for approximately two months. Apparently these labels were “left over” stock. In any event, there is no evidence that Hygienic challenged this practice. Then, a new label made of heavy paper about 3%\" long and colored yellow, white, and green was substituted. It was folded in half, and on one side was printed, “Sanitary, 2 Piece Unbreakable Polyethylene Soap Dish”; on the other side appeared “Made by Hutzler Mfg. Co., Long Island City, N. Y.” The Hutzler-Salzman effort was successful, and before long more than a million Hutzler soap dishes were sold. Although Hygienic began to copy Hutzler’s merchandising methods in early 1957, by this time it was unable to recapture a major portion of the expanded market for two-piece soap dishes. Its profits dropped substantially ; and Hygienic brought the present action to recover damages. Hygienic was required to comply with the provisions of 35 U.S.C. § 171 in order to obtain the monopoly benefits of our patent laws. The statute provides; “Whoever invents any new, original and ornamental design for an article of manufacture may obtain a patent therefor, subject to the conditions and requirements of this title. “The provisions of this title relating to patents for inventions shall apply to patents for designs, except as otherwise provided.” The courts have passed on the validity of countless design patents under this statute and its predecessors, and the law, in the abstract, has been restated many times. The first requirement is that the design be the result of invention. Blisscraft of Hollywood v. United Plastics Co., 294 F.2d 694, 696 (2nd Cir. 1961); International Silver Co. v. Pomerantz, 271 F.2d 69, 71 (2nd Cir. 1959). It must reveal a greater skill than “that exercised by the ordinary designer who is chargeable with knowledge of the prior art.” General Time Instruments Corp. v." }, { "docid": "17229868", "title": "", "text": "of purchasers, palming off, and appropriation of property rights. Blisscraft of Hollywood v. United Plastics Co., 294 F.2d 698; Lincoln Restaurant Corp. v. Wolfies Restaurant Inc., 291 F.2d 302, 303 (2nd Cir.), cert. denied, 368 U.S. 889, 82 S.Ct. 143, 7 L.Ed.2d 88 (1961); Norwich Pharmacal Co. v. Sterling Drug, Inc., supra, 271 F.2d at p. 571 and federal and New York cases cited therein. We note that the trial court found that there was an “absence of direct evidence of confusion.” 189 F.Supp. 793. Hutzler sold more than a million of its own soap dishes, but Hygienic did not produce any customer who had been actually misled. See Lucien Lelong, Inc. v. Lander Co., Inc., supra, 164 F.2d at p. 397. Inasmuch as some confusion is a natural, and very likely an unavoidable result of permissible imitation, American Safety Table Co., Inc. v. Schreiber, supra, 269 F.2d at p. 273, and, as we have already held, it is manifest that a customer would purchase these soap dishes because of their quality and appearance, and not because of their source, we are unwilling to infer from the mere fact of Hutzler’s commercial success that actual deception occurred. We next turn to the trial court’s finding that Hutzler was “palming off” its soap dish for Hygienic’s product. It has long been settled that: “A man is not to sell his own goods under the pretence that they are the goods of another man; he cannot be permitted to practice such a deception, nor to use the means which contribute to that end. He cannot therefore be allowed to use names, marks, letters, or other indicia, by which he may induce purchasers to believe, that the goods which he is selling are the manufacture of another person.” Perry v. Truefitt, 6 Beav. 72, 49 Eng.Rep. 749, 752 (Rolls, 1842). Goodyear’s India Rubber Glove Mfg. Co. v. Goodyear Rubber Co., 128 U.S. 598, 604, 9 S.Ct. 166, 32 L.Ed. 535 (1888); 1 Nims, Unfair Competition and Trademarks § 9a. Traditionally, a plaintiff complaining of “palming off” must prove the perpetration of fraud, “i." }, { "docid": "14651179", "title": "", "text": "When Kaplan complained to Salzman about the substitution of Hutz-ler’s imitation, Salzman replied, “So what of it? You can do what you want about it.” Clearly these defendants were prohibited by fiduciary ties from acting in any manner inconsistent with their trust and to exercise the utmost good faith and loyalty in the performance of their agency. Yet both of them palpably imitated the plaintiff’s product, eliminated the plaintiff, and diverted its customers to themselves in an unconscionable appropriation of opportunities gained in their fiduciary capacities. Surely such conduct is intolerable and unfair. Duane Jones Company, Inc. v. Burke, 1954, 306 N.Y. 172, 117 N.E.2d 237. The evidence here admits of no other conclusion. Hutzler’s offer to buy out Hygienic was rejected in May, 1954, and the actions thereafter of both Hutzler and Salzman require a finding that they then determined to combine their efforts to copy plaintiff’s successful product and eliminate Hygienic. The delay until November, 1954 was obviously caused by the preparation necessary to put their own soap dish into production. Hutzler and Salzman acted in concert to appropriate unfairly to themselves plaintiff’s business. Hutzler, by having Cotton mold an almost identical product, pirated Hygienic’s product to its own benefit without compensating Hygienic for its industry and ingenuity. Recently the Court of Appeals for the Eighth Circuit found unfair competition where a customer, in the position of Hutz-ler, who supplied retailers with the plaintiff’s paint, terminated its contract with the plaintiff manufacturer and had a similar product copied. Stewart Paint Mfg. Co. v. United Hardware Distrib. Co., 8 Cir., 1958, 253 F.2d 568, modified on rehearing, 8 Cir., 1958, 259 F.2d 273. And in Raycarr Sales Corp. v. Herman Ryn-veld’s Son Corp., 1st Dept.1956, 1 A.D.2d 952, 150 N.Y.S.2d 619, the Appellate Division unanimously reversed a lower court decision dismissing a counterclaim against a manufacturer’s representative who, like Salzman, had sold a competing product. Undoubtedly, the activity of Salzman and Hutzler is so manifestly unfair that it constitutes that “gun at the head” competition which the New York Court of Appeals condemned in the Duane Jones case. Trademark" }, { "docid": "17229882", "title": "", "text": "choice is crucial, for the federal and state law is not essentially different; and both federal and state courts have readily borrowed decisions from one another and from the entire body of law in this field. American Safety Table Co., Inc. v. Schreiber, supra, 269 F.2d at p. 270. Under the circumstances we shall rely upon the “indeterminate general law.” Blisscraft of Hollywood v. United Plastics Co., 2 Cir., 294 F.2d 694, 697. . 189 F.Supp. 793. . It must be remembered that the imitation complained of must be the design, and not the functional elements of the dish, which are in the public domain. American-Marietta Co. v. Krigsman, supra. We have not researched the genealogy of soap dishes but they have been around about as long as soap; and Hygienic is not the inventor of polyethylene. . Since we hold that Hygienic failed to establish any secondary meaning, it is unnecessary to review, at this point, the lower court’s finding that the sale of Hutzler’s soap dishes was likely to produce confusion—which it is also required to establish in order to sustain its claim. General Time Instruments Corp. v. U. S. Time Corp., supra, 165 F.2d at p. 855; Lucien Lelong, Inc. v. Lander Co., Inc., supra, 164 F.2d at p. 397. . See p. 618, supra. . We are in as good a position as the trial judge to evaluate exhibit evidence. Chas. D. Briddell, Inc. v. Alglobe Trading Corp., supra, 194 F.2d at p. 420. . 189 F.Supp. 793. . It does appear that for a brief period in 1954 Hutzler used up the old Hygienie-Hutzler labels on packages containing Hutzler dishes. See PI. Exh. #6. But there is no evidence that Hygienic objected to this practice, as it had not objected previously to this “Made by Hutzler Mfg. Co.” label when Hutzler was selling Hygienic dishes. . The cases cited by the Court below do not support the proposition that it is unfair competition for a distributor to discontinue business relations with one manufacturer in order to deal with another who is selling a similar product." } ]

[ { "docid": "8945978", "title": "", "text": "additional compensation, in violation of Mr. Hurcomb’s advice. In 2007, a group of field employees sued Pure Energy for its violation of the FLSA, based on, inter alia, its failure to pay sufficient overtime. See Condos v. Pure Energy Servs. (USA), Inc., 07-CV-00127-ABJ (D.Wyo. filed June 12, 2007). The district court granted the Condos plaintiffs partial summary judgment, finding that Pure Energy had failed to pay the overtime required by the FLSA. Shortly thereafter, Pure Energy and the Condos plaintiffs settled. Plaintiffs in this case are similarly situated to the plaintiffs in Condos, and as such, Pure Energy has already admitted it owes Plaintiffs back pay for missed overtime. There were only two issues at summary judgment: first, whether Plaintiffs may be awarded compensatory damages under the extended three-year statute of limitations for Pure Energy’s “willful” violation of the FLSA; and second, whether Pure Energy should be required to pay liquidated damages. The district court denied Pure Energy’s motion and granted Plaintiffs’ motion in part, reserving judgment on the liquidated damages issue until after trial. The parties agreed to have the court rule on liquidated damages based on their existing briefs, and the district court then found Pure Energy liable for the full amount of liquidated damages. This appeal followed. DISCUSSION I. We first consider whether the district court erred in concluding at summary judgment that Pure Energy’s violation of the FLSA was willful. We review the district court’s decision de novo, applying the same legal standard as the district court and viewing the evidence in the light most favorable to the nonmoving party. See In re Wal-Mart Stores, Inc., 395 F.3d 1177, 1189 (10th Cir.2005). Summary-judgment is proper if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The FLSA generally imposes a two-year statute of limitations unless the defendant’s violations are shown to be willful, in which case a three-year period applies. See 29 U.S.C. § 255(a). To fall under the three-year limitation, the plaintiff must show that “the employer either knew or" } ]

[ { "docid": "20400846", "title": "", "text": "dumping superfluous, unexcerpted exhibits in the court file is improper, and contravenes the Local Rules' directive that \"[i]f discovery materials are germane to any motion or response, only the relevant portions of the material shall be filed with the motion or response.” LR 5.5(c). Although the parties’ evidentiary submissions will be accepted as filed, this Court will not scour the uncited portions for any scrap of evidence that may advance their respective positions. See, e.g., Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 672 (10th Cir.1998) (federal courts \"are wary of becoming advocates who comb the record of previously available evidence and make a party's case for it”); Preis v. Lexington Ins. Co., 508 F.Supp.2d 1061, 1068 (S.D.Ala.2007) (\"Parties may not, by the simple expedient of dumping a mass of evidentiary material into the record, shift to the Court the burden of identifying evidence supporting their respective positions.”); Witbeck v. Embry Riddle Aeronautical University, Inc., 219 F.R.D. 540, 547 (M.D.Fla.2004) (\"That judges have no duty to scour the file in search of evidence is an obvious corollary to the requirement that parties specifically identify the portions of the case file which support their assertions regarding whether genuine issues remain for trial.”); Vigor v. City of Saraland, 2008 WL 5225821, *1 n. 1 (S.D.Ala. Dec. 11, 2008) (similar). \"Instead, review of the parties' submissions is restricted to the portions of the record they have cited....” Rowell v. Winn Dixie, 2008 WL 4369003, *1 n. 3 (S.D.Ala. Sept. 23, 2008) (citations omitted). . In an apparent clerical error, defendant's summary judgment submission includes two different exhibits labeled Exhibit P. (Doc. 56, at 6, 7.) The second Exhibit P consists of excerpts from the deposition of Shelitha Jones. . In both their brief (doc. 58) and the Hillery Affidavit, plaintiffs recite the date of loss as December 14, 2007. The discrepancy is not material for summary judgment purposes; however, the Court observes that numerous other documents, including both the Complaint and the police report (Defendant’s Exhibit E), peg the date of loss as December 15th, not the 14th. . The record includes a" }, { "docid": "4591719", "title": "", "text": "under Federal Rule of Evidence 402 arguing that the evidence is irrelevant or inadmissible under Rule 403. PL’s Supplemental Objections to Witnesses & Exs. (“PL’s Supplemental Objections”) at 1. Specifically, she seeks to preclude (1) testimony from True; (2) testimony from Constance Bails; (3) testimony to from Watts; (4) testimony from Eiland; (5) emails to or from True; (6) an e-mail from Bails; (7) e-mails to or from Watts; (8) an e-mail from Eiland; (9) Banks’s Performance Appraisals in 2006 and 2007; (10) exhibits regarding Banks retaining copies of certain documents; and (11) the 2007 Letter of Direction. The USDA counters “that the Court should defer its ruling on this evidence until trial.” Def.’s Mem. of P. & A. in Opp’n to Pl.’s Supplemental Objections (“Def’s Opp’n”) at 2. The USDA further argues that the “witnesses and exhibits which Plaintiff seeks to exclude are relevant to Defendant’s defense concerning Plaintiffs job performance, and may be relevant on a number of issues and for a number of purposes.” Id. at 1. DISCUSSION “While neither the Federal Rules of Civil Procedure nor the Federal Rules of [E]vidence expressly provide for motions in limine, the Court may allow such motions ‘pursuant to the district court’s inherent authority to manage the course of trials.’ ” Barnes v. District of Columbia, 924 F.Supp.2d 74, 78 (D.D.C.2013) (quoting Luce v. United States, 469 U.S. 38, 41 n. 4, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984)). “[T]rial judges are afforded broad discretion in rendering evidentiary rulings, a discretion which extends to assessing the probative value, of the proffered evidence and weighing any factors against admissibility.” Graves v. District of Columbia, 850 F.Supp.2d 6, 11 (D.D.C.2011) (citing Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384, 128 S.Ct. 1140, 170 L.Ed.2d 1 (2008)). “ ‘In some instances it is best to defer rulings until trial, when decisions can be better informed by the context, foundation, and relevance of the contested evidence within the framework of the trial as a whole.’ ” Herbert v. Architect of the Capitol, 920 F.Supp.2d 33, 38 (D.D.C.2013) (quoting Casares v. Bernal, 790 F.Supp.2d" }, { "docid": "2640648", "title": "", "text": "limitations because I found that there was insufficient evidence presented that the County willfully violated the FLSA. See 29 U.S.C. § 255(a) (allowing for a three (3) year statute of limitations for causes of action arising out of a willful violation of the FLSA). Additionally, the jury rejected Plaintiffs’ equitable tolling theory, and Plaintiffs' recovery was therefore limited to events that occurred within the two (2) years prior to the filing of their complaints. . This hearing was held at the Defendant’s request, in which Plaintiffs did not concur. However, given the parties’ vigorous dispute over the requested fee award, this hearing was necessary. See, e.g., Smith v. Phila. Hous. Auth., 107 F.3d 223, 225 (3d Cir.1997) (\"If hourly rates are disputed, the district court must conduct a hearing to determine the reasonable market rates.”) (emphasis added). . Plaintiffs argue that they are entitled to a $400.00 hourly billing rate for counsel because this is her usual billing rate. Although counsel’s usual billing rate is the starting point in ascertaining a reasonable hourly rate, it is not dispositive. See Loughner v. Univ. of Pittsburgh, 260 F.3d 173, 180 (3d Cir.2001). . For this same reason, I do not find Plaintiffs’ reliance on Attorney Richard L. Orloski's declaration filed in connection with a fee petition in Todd v. Luzerne County Children et al. (No. 3:04-cv-2637) or Plaintiffs’ reliance on a Legal Intelligencer news article discussing contractual fees currently being paid to the attorneys representing Pennsylvania Attorney General Kathleen Kane and others in her office in civil suits particularly helpful. (See Doc. 191 (Orloski Decl.); Doc. 185-5, Ex H. (Todd opinion); Doc. 190 (The Legal Intelli-gencer news article).) For example, Todd involved claims for violations of substantive and procedural due process and equal protection under section 1983 and state law. Having adjudicated this action myself, I do not find that the legal services provided were comparable to the one at hand. . In Lukawski, Attorney Sabatini’s requested hourly rate of $315.00 was reduced to $300.00. See Lukawski v. Client Servs., No. 3:12-CV-02082, 2013 WL 6154544, at *2-*3 (M.D.Pa. Nov. 22, 2013). Plaintiffs" }, { "docid": "525784", "title": "", "text": "limine a “vehicle for a party to ask the Court to weigh the sufficiency of the evidence,” Bowers v. Nat’l Collegiate Athletic Ass’n, 563 F.Supp.2d 508, 532 (D.N.J.2008). Rather, parties should target their arguments to demonstrating why certain items or categories of evidence should (or should not) be introduced at trial, and direct the trial judge to specific evidence in the record that would favor or disfavor the introduction of those particular items or categories of evidence. U.S. ex rel. El-Amin v. George Washington Univ., 533 F.Supp.2d 12, 19 (D.D.C.2008). In short, motions in limine are a means for arguing why “evidence should or should not, for evidentiary reasons, be introduced at trial.” Williams v. Johnson, 747 F.Supp.2d 10, 18 (D.D.C.2010) (emphasis in original). In deference to their familiarity with the details of the case and greater experience in evidentiary matters, trial judges are afforded broad discretion in rendering evidentiary rulings, a discretion which extends to assessing the probative value of the proffered evidence and weighing any factors against admissibility. Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384, 128 S.Ct. 1140, 170 L.Ed.2d 1 (2008). The trial judge’s discretion extends not only to the substantive evidentiary ruling, but also to the threshold question of whether a motion in limine presents an evidentiary issue that is appropriate for ruling in advance of trial. [See, e.g.,] United States v. Valencia, 826 F.2d 169, 172 (2d Cir.1987).... The trial judge has the “discretion to rule in limine or to await developments at trial before ruling.” Stephen A. Saltzburg et al., Federal Rules of Evidence Manual § 103.02[13] (9th ed. 2006). “[I]n some instances it is best to defer rulings until trial, [when] decisions can be better informed by the context, foundation, and relevance of the contested evidence within the framework of the trial as a whole.” Casares v. Bernal, 790 F.Supp.2d 769, 775 (N.D.Ill.2011) (citation omitted). Id. at 10-11. While the Court has broad discretion to make judgments about whether proffered evidence is sufficiently relative or overly prejudicial, see United States v. Project on Gov’t Oversight, 526 F.Supp.2d 62, 66 (D.D.C.2007), the" }, { "docid": "4591720", "title": "", "text": "Rules of Civil Procedure nor the Federal Rules of [E]vidence expressly provide for motions in limine, the Court may allow such motions ‘pursuant to the district court’s inherent authority to manage the course of trials.’ ” Barnes v. District of Columbia, 924 F.Supp.2d 74, 78 (D.D.C.2013) (quoting Luce v. United States, 469 U.S. 38, 41 n. 4, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984)). “[T]rial judges are afforded broad discretion in rendering evidentiary rulings, a discretion which extends to assessing the probative value, of the proffered evidence and weighing any factors against admissibility.” Graves v. District of Columbia, 850 F.Supp.2d 6, 11 (D.D.C.2011) (citing Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384, 128 S.Ct. 1140, 170 L.Ed.2d 1 (2008)). “ ‘In some instances it is best to defer rulings until trial, when decisions can be better informed by the context, foundation, and relevance of the contested evidence within the framework of the trial as a whole.’ ” Herbert v. Architect of the Capitol, 920 F.Supp.2d 33, 38 (D.D.C.2013) (quoting Casares v. Bernal, 790 F.Supp.2d 769, 775 (N.D.Ill.2011)). However, it is within a trial judge’s discre tion to decide “whether a motion in limine presents an evidentiary issue that is appropriate for ruling in advance of trial.” Graves, 850 F.Supp.2d at 11 (citing United States v. Valencia, 826 F.2d 169, 172 (2d Cir.1987)). Federal Rule of Evidence 401 provides that “[e]vidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Fed.R.Evid. 401. “Irrelevant evidence is not admissible.” Fed.R.Evid. 402. The proponent of the evidence bears the burden of establishing that the evidence is relevant. See Dowling v. United States, 493 U.S. 342, 351 n. 3, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990). Even if the evidence is relevant, the court may still exclude it “if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly" }, { "docid": "525783", "title": "", "text": "Gr'aves: Broadly speaking, the Federal Rules of Evidence permit the admission of “relevant evidence” — that is, evidence that “has any tendency to make a fact [of consequence] more or less probable than it would be without the evidence,” Fed. R.Evid. 401 — provided it is not otherwise excluded by the Rules, the Constitution of the United States, or an Act of Congress, Fed.R.Evid. 402, and its probative value is not “substantially outweighed by a danger of ... unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence,” Fed.R.Evid. 403. In light of their limited purpose, motions in limine “should not be used to resolve factual disputes,” which remains the “function of a motion for summary judgment, with its accompanying and crucial procedural safeguards.” C & E Servs., Inc. v. Ashland Inc., 539 F.Supp.2d 316, 323 (D.D.C.2008).... In other words, “[factual questions should not be resolved through motions in limine,” Goldman v. Healthcare Mgmt. Sys., Inc., 559 F.Supp.2d 853, 871 (W.D.Mich.2008) (citation omitted), nor is a motion in limine a “vehicle for a party to ask the Court to weigh the sufficiency of the evidence,” Bowers v. Nat’l Collegiate Athletic Ass’n, 563 F.Supp.2d 508, 532 (D.N.J.2008). Rather, parties should target their arguments to demonstrating why certain items or categories of evidence should (or should not) be introduced at trial, and direct the trial judge to specific evidence in the record that would favor or disfavor the introduction of those particular items or categories of evidence. U.S. ex rel. El-Amin v. George Washington Univ., 533 F.Supp.2d 12, 19 (D.D.C.2008). In short, motions in limine are a means for arguing why “evidence should or should not, for evidentiary reasons, be introduced at trial.” Williams v. Johnson, 747 F.Supp.2d 10, 18 (D.D.C.2010) (emphasis in original). In deference to their familiarity with the details of the case and greater experience in evidentiary matters, trial judges are afforded broad discretion in rendering evidentiary rulings, a discretion which extends to assessing the probative value of the proffered evidence and weighing any factors against admissibility. Sprint/United Mgmt. Co. v. Mendelsohn," }, { "docid": "14263151", "title": "", "text": "plaintiffs’ attorneys with the names and home addresses of all employees who may be potential plaintiffs in this case. However, DWS shall not disclose the employees’ personal telephone numbers or social security numbers unless ordered by the court. See Martinez, 2009 WL 5034479, at *11 (denying plaintiffs’ request for personal phone numbers and social security numbers); Houston v. URS Corp., 591 F.Supp.2d 827, 836 (E.D.Va.2008) (denying plaintiffs’ request for personal phone numbers). FLSA violations are subject to a three-year statute of limitations if the violation is willful, and a two-year statute of limitations if the violation is not willful. 29 U.S.C. § 255(a); Fast, 243 F.R.D. at 364. For timing purposes, an action is commenced under the FLSA when the party files suit. Fast, 243 F.R.D. at 364. In the case of a collective action, the action is commenced when a party files his or her written consent to join. Id. In his affidavit, Littlefield asserted that Management at DWS had received complaints about failing to award overtime pay. (Doc. 17, Ex. 1 at ¶ 8.) Whether a violation is willful is an issue of fact, often addressed during summary judgment or at trial. Houston, 591 F.Supp.2d at 835. In addition, judicial economy is served by conditionally certifying a larger, more inclusive class, at this stage in the proceedings. Id. Accordingly, the statute of limitations is a three-year period. Finally, DWS requests that the notice inform potential plaintiffs of the possible costs they might incur by joining the lawsuit. Because this notice might discourage plaintiffs from joining the litigation, the request is denied. See Martinez, 2009 WL 5034479, at *9 (denying a similar request). The plaintiffs’ proposed notice to potential class members is therefore approved, pending one correction. In section 10, the plaintiffs shall delete the word “District,” so that the phrase reads “Eastern District of Missouri, Eastern Division.” The plaintiffs’ proposed consent to join form is approved. IV. CONCLUSION For the reasons stated above, IT IS HEREBY ORDERED that the motion of plaintiffs, Daniel J. Littlefield, and others, to conditionally certify a class (Doc. 16) is sustained. IT IS" }, { "docid": "14263150", "title": "", "text": "*7 (E.D.Mo. Feb. 3, 2009). In Greenwald, the notice invited potential plaintiffs to discuss the lawsuit with the plaintiffs’ counsel. (Doc. 26, Ex. 1 at 14.) In Huang, Judge Richard E. Webber of this court approved a notice issued by plaintiffs’ counsel, that contained two separate paragraphs listing the attorneys’ contact information. (Doc. 26, Ex. 4 at 24, 26); Huang, 248 F.R.D. at 228-29. Accordingly, the court does not find that the proposed notice inappropriately solicits potential plaintiffs. The court will not appoint a neutral administrator to issue the notice. See Ruggles v. WellPoint, Inc., 591 F.Supp.2d 150, 163 (N.D.N.Y.2008) (denying defendant’s request for a third-party administrator to collect the names and addresses of putative class members). To insure that potential plaintiffs receive “accurate and timely” notice, courts frequently order the defendant to disclose the names of potential plaintiffs to plaintiffs’ attorneys. See e.g. Martinez, 2009 WL 5034479, at *11; Fast v. Applebee’s Int’l, Inc., 243 F.R.D. 360, 364 (W.D.Mo.2007); Gjurovich v. Emmanuel’s Marketplace, Inc., 282 F.Supp.2d 101, 108 (S.D.N.Y.2003). Accordingly, DWS shall provide the plaintiffs’ attorneys with the names and home addresses of all employees who may be potential plaintiffs in this case. However, DWS shall not disclose the employees’ personal telephone numbers or social security numbers unless ordered by the court. See Martinez, 2009 WL 5034479, at *11 (denying plaintiffs’ request for personal phone numbers and social security numbers); Houston v. URS Corp., 591 F.Supp.2d 827, 836 (E.D.Va.2008) (denying plaintiffs’ request for personal phone numbers). FLSA violations are subject to a three-year statute of limitations if the violation is willful, and a two-year statute of limitations if the violation is not willful. 29 U.S.C. § 255(a); Fast, 243 F.R.D. at 364. For timing purposes, an action is commenced under the FLSA when the party files suit. Fast, 243 F.R.D. at 364. In the case of a collective action, the action is commenced when a party files his or her written consent to join. Id. In his affidavit, Littlefield asserted that Management at DWS had received complaints about failing to award overtime pay. (Doc. 17, Ex. 1 at ¶" }, { "docid": "4284316", "title": "", "text": "action is appropriate by evaluating all the facts that have thus far been placed before it. Thus, procedurally, the court is not making any final decisions, and Tyson will have an opportunity to later decertify the class if the court approves conditional certification and authorizes notice. Furthermore, substantively, the court will ultimately use the more onerous second stage analysis to account for all the important facts learned through discovery that inform what putative plaintiffs, if any, are similarly situated to existing plaintiffs. Many other courts have done likewise, although not specifically recognizing the procedural/substantive difference. See Villanueva-Bazaldua v. TruGreen Ltd. Partners, 479 F.Supp.2d 411, 415 (D.Del.2007) (“District courts in other circuits have adopted an intermediate approach to the ‘similarly situated’ inquiry when the parties voluntarily engage in discovery prior to a decision on conditional certification.”); Jimenez, 2007 WL 4454295, at *3 (stating, because the parties had engaged in six months of pre-certification discovery, that “the Court will review Plaintiffs’ allegations and affidavits in conjunction with the evidence gleaned through discovery”); Thiessen v. General Electric Capital Corp., 996 F.Supp. 1071, 1080 (D.Kan.1998) (“Thus, the court adopts an ‘intermediate approach’ in analyzing the ‘similarly situated’ issue.”). 2. Conditional certification Plaintiffs request the court to conditionally certify and to approve notice to all potential collective action class members, which Plaintiffs define as: All current and former hourly production and support employees of Tyson Foods, Inc., or Tyson Fresh Meats, Inc.’s Storm Lake, Iowa, processing facility who have been employed at any time from February 7, 2004 to the present. Dkt. # 34, Exhibit A. Plaintiffs indicate February 7, 2004, because the complaint was filed on February 6, 2007, and the FLSA provides a maximum three year statute of limitations. See 29 U.S.C. § 255 (providing a three year statute of limitations for willful violations). Plaintiffs also indicate Tyson’s Storm Lake facility because the parties voluntarily agreed to dismiss Plaintiffs’ claims against Tyson’s De-nison facility. Dkt. #40. In their reply brief, Plaintiffs refine their proposed collective action class: “To be clear, Plaintiffs would define the certified collective action ‘class’ as including all hourly employees" }, { "docid": "5706611", "title": "", "text": "Opinion filed contemporaneously with this entry, IT IS HEREBY ORDERED, ADJUDGED and DECREED that Defendant’s partial motion to dismiss Plaintiffs negligence and certain damages claims (Doc. No. 10) is granted. FURTHER ORDERED that Plaintiffs motion for leave to file amended complaint (Doc. No. 21) is also granted. . Defendant notes that it should be properly identified as Taco Bell Corp. . Paragraphs B and E are the same in Rosa-nia's proposed amended complaint. . The FLSA provides in pertinent part: Any employer who violates the provisions of 215(a)(3) of this title shall be liable for such legal or equitable relief as may be appropriate to effectuate the purposes of section 215(a)(3) of this title, including without limitation employment, reinstatement, promotion, and the payment of wage lost and an additional amount as liquidated damages. 29 U.S.C. § 216(b). . In Hayes v. City of Memphis, 23 Fed.Appx., 529, 531 (6th Cir.2001) (per curiam), the Sixth Circuit observed that it had not yet addressed whether a former employee’s retaliation claim against an employer may be based on post-termination conduct so long as the \"protected activity occurred during their employment.” The Hayes court noted, however, that policies underlying the statute should be given their proper effect. Id. . Courts outside of the Sixth Circuit have found Outback Steakhouse to be persuasive. See Hernandez v. Data Sys. Int’l, Inc., 266 F.Supp.2d 1285, 1306 (D.Kan.2003); Ward v. Wal-Mart Stores, Inc., 140 F.Supp.2d 1220, 1231 (D.N.M.2001). . In BE & K, the Supreme Court confronted the issue of whether the NLRB could declare \"reasonably based but [completed] unsuccessful lawsuits” brought for retaliatory purposes as lawful. BE & K, 536 U.S. at 531, 122 S.Ct. 2390. . Even if Rosania demonstrates that Defendant is not entitled to First Amendment im munity, Plaintiff must still prove all substantive elements of his proposed retaliation claim. Id. at 61, 113 S.Ct. 1920. . In Bill Johnson’s, the Court indicated that the NLRB might look to the standards governing motions for summary judgment or directed verdicts for guidance. Id. at 746 n. 11, 103 S.Ct. 2161. . Since he was no" }, { "docid": "8905877", "title": "", "text": "255. They disagree, however, as to how to calculate that three-year period for purposes of the notice. Plaintiffs proposed Notice defines the collective to include all current and former Dealers and Slot Reps who worked at Empress “during the period beginning three years prior to the filing of the original complaint (i.e., January 3, 2008) through the present.” (Id. at 18). Empress argues that the three-year period should be calculated instead from the date of the Notice. (Doc. 55, at 31). In response, Plaintiff claims that Empress agreed on June 2, 2011 to toll the statute of limitations pending resolution of a motion to dismiss, and suggests that this date represents a fair compromise. (Doc. 58-1, at 21). Empress disputes this, and Plaintiff provides no documentary support for the alleged June 2, 2011 agreement. The Court finds that the tolling of the limitations period lasted at most one week. The tolling issue was first discussed during a status hearing before this Court on May 13, 2011. Defendants’ counsel indicated that Empress would agree to a stay as to Dealers and Slot Reps who worked at Empress if that meant the casino would not have to respond to Plaintiffs certification motion prior to a ruling on the pending motion to dismiss. The parties did not conclusively resolve the issue at that time, but shortly thereafter, on May 19, 2011, Defendants’ counsel sent the Court a letter (copied to opposing counsel) confirming that Empress agreed to toll the statute of limitations from May 13, 2011 until the Court ruled on the motion to dismiss. As it turned out, the Court ruled on the motion to dismiss the following day on May 20, 2011. 790 F.Supp.2d 787 (N.D.Ill.2011). Under the circumstances, the three-year period will be calculated from the date of the Notice unless Plaintiff has a feasible proposal for how to incorporate the one-week stay. 2. Opt-in Period Empress next objects to giving potential plaintiffs 120 days to decide whether they wish to consent to be in the case. In Empress’s view, a 45-day opt-in period is reasonable and sufficient. Garcia v." }, { "docid": "6240891", "title": "", "text": "201. Subsequently, the parties stipulated to the dismissal of defendants TT USA and Travcorp USA. Docs # 204, 206. Plaintiffs filed an amended complaint on May 18, 2004. Doc # 207. The remaining three defendants filed then- answer on June 8, 2004. Doc #212. Plaintiffs filed the instant motions to certify a FLSA class and a Rule 23(b)(3) class on June 17, 2004. Docs #215, 216, 218, 219. The court took oral argument on the motions on August 12, 2004. II As a preliminary matter, the court must address plaintiffs’ objections to defendants’ evidence. In connection with them reply brief, plaintiffs filed a twenty-two page document in which they object to almost every declaration defendants filed in support of them opposition papers. See Doc #272. The bulk of plaintiffs’ objections deal with matters pertaining to relevancy of evidence. Because none of plaintiffs’ objections would change the outcome of the court’s decision on the pending motions, the court need not rule on any of them at this stage of the litigation. III The court first addresses plaintiffs’ motion to certify a FLSA collective action pursuant to § 216(b). Plaintiffs’ proposed class consists of all current or former DA and Contiki tour directors who at any time from April 1, 2000, to the present worked in the United States or resided in the United States while working for DA or Contiki. See Not Mots (Doc # 215) at 2:22-26. A The FLSA provides a right of action to an employee against his employer when the employer fails to pay overtime wages. See 29 USC §§ 203, 207. Such an employee may also bring a collective action on behalf of similarly situated employees. Id. at § 216(b); see also Does v. Advanced Textile Corp., 214 F.3d 1058, 1064 (9th Cir.2000); Pfohl v. Farmers Ins. Group, 2004 WL 554834, *2, 2004 U.S. Dist LEXIS 6447, *6 (C.D.Cal.2004) (Tevrizian, J.). The district court may authorize the named FLSA plaintiffs to send notice to all potential plaintiffs and may set a deadline for those potential plaintiffs to join the suit. Pfohl, 2004 WL 554834 at *2," }, { "docid": "18236430", "title": "", "text": "common group for FLSAcompliance purposes. Of course, the accu racy and weight of this allegation, as well as the parties’ competing views of the duties of research associates, will be tested at the close of discovery. The Complaint and the Cohen Affidavit are sufficient to warrant preliminary certification of a collective action in this case. In so concluding, I reiterate that there is a “low bar for allegations required for collective action certification,” Mendoza, 2008 WL 938584, at *2, that a plaintiffs burden is “minimal,” Lee, 236 F.R.D. at 197, and that a court making a preliminary certification determination does not resolve factual disputes, decide ultimate issues on the merits, or make credibility determinations. Lynch, 491 F.Supp.2d at 368. See also Hoffmann-La Roche, 493 U.S. at 174, 110 S.Ct. 482 (“trial courts must take care to avoid even the appearance of judicial endorsement of the merits of the action”). Lastly, I authorize notice to potential opt-in class members. Section 216(b) does not expressly provide for court-authorized notice to potential opt-in plaintiffs in a collective action, but it is well settled that district courts have the power to authorize an FLSA plaintiff to send such notice. See Id. at 170-71, 110 S.Ct. 482; Braunstein v. E. Photographic Labs., Inc., 600 F.2d 335, 336 (2d Cir.1978). By authorizing notice, the court thereby “certifies” the collective action. See Damassia, 2006 WL 2853971, at *2; Lee, 236 F.R.D. at 197. The FLSA has a two-year statute of limitations except in the case of willful violations, for which the statute of limitations is three years. See 29 U.S.C. § 255(a). The Second Circuit has explained that “a violation is willful for purposes of the FLSA limitations provision only if the employer knowingly violates or shows reckless disregard for the provisions of the Act.” Brock v. Superior Care, Inc., 840 F.2d 1054, 1062 (2d Cir.1988). Plaintiff contends that the contents of any notice should provide for a three-year statute of limitations afforded to claims of willful violations of the FLSA, as opposed to a two-year limitations period. Although Gerson opposes the motion for preliminary certification and" }, { "docid": "14315770", "title": "", "text": "have alleged and made a pre liminary showing that Defendant's FLSA violations were willful. See 29 U.S.C. § 255(a) (for claims for unpaid overtime under the FLSA, “a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued”); Allen, 495 F.3d at 1323 (“Although the ordinary statute of limitations in cases brought under the FLSA is two years, a cause of action arising out of a willful violation of the FLSA may be commenced within three years after the cause of action accrued.”). It will be Plaintiffs' burden at trial to show that the alleged violations were willful, so as to trigger the three-year limitations period, rather than the two-year period that would otherwise apply. See Rodriguez v. Farm Stores Grocery, Inc., 518 F.3d 1259, 1274 (11th Cir.2008). . In collaborating on the joint notice, the parties are instructed to bear in mind the Supreme Court's guidance that \"[i]n exercising the discretionary authority to oversee the notice giving process, courts must be scrupulous to respect judicial neutrality. To that end, trial courts must take care to avoid even the appearance of judicial endorsement of the merits of the action.” Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 174, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989). The parties are further reminded that there are legion authorities containing potentially helpful analysis concerning the proper contours, format and wording of notice in the § 216(b) context. See, e.g., Russell, 575 F.Supp.2d at 938-39; Rubery, 569 F.Supp.2d at 338; Bowens, 546 F.Supp.2d at 84-85; Gerlach, 2006 WL 824652, at *4; Flores v. Lifeway Foods, Inc., 289 F.Supp.2d 1042, 1046-47 (N.D.Ill.2003). The parties would be well advised to consult these and other decisions in crafting a jointly acceptable form of notice. . Pursuant to this ruling, any opt-in plaintiff's action against HL-A herein will be considered to be commenced \"on the subsequent date on which such written consent is filed in the court in which the action was commenced.” 29 U.S.C. § 256(b). . Defendant has requested oral argument. Pursuant to Local Rule 7.3," }, { "docid": "3379299", "title": "", "text": "to testify that his opinions are based on his 2001 article. IV. Wyeth’s Motions in Limine A. Motions in Limine and Admissible Evidence Motions in limine are generally used to ensure evenhanded and expeditious management of trials by eliminating evidence that is clearly inadmissible for any purpose, see Jonasson v. Lutheran Child and Family Serv., 115 F.3d 436, 440 (7th Cir.1997). The court has the power to exclude evidence in limine only when evidence is clearly inadmissible on all potential grounds. Cf. Luce v. United States, 469 U.S. 38, 41 n. 4, 105 S.Ct. 460, 463 n. 4, 83 L.Ed.2d 443 (1984) (federal district courts have authority to make in limine rulings pursuant to their authority to manage trials). Unless evidence meets this high standard, evidentiary rulings should be deferred until trial so that questions of foundation, relevancy and potential prejudice may be resolved in proper context, (citations omitted). Denial of a motion in limine does not necessarily mean that all evidence contemplated by the motion will be admitted at trial. Denial merely means that without the context of trial, the court is unable to determine whether the evidence in question should be excluded. The court will entertain objections on individual proffers as they arise at trial, even though the proffer falls within the scope of a denied motion in limine. See United States v. Connelly, 874 F.2d 412, 416 (7th Cir.1989) (citing Luce, 469 U.S. at 41, 105 S.Ct. at 463) (“Indeed, even if nothing unexpected happens at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling.”); Hawthorne Partners v. AT & T Technologies, Inc., 831 F.Supp. 1398, 1400-1401 (N.D.Ill.1993). Evidence is relevant when it has a “tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed.R.Evid. 401. Generally, “[a]ll relevant evidence is admissible,” Fed.R.Evid. 402, unless “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury," }, { "docid": "3137238", "title": "", "text": "Joseph G. Sankoorikal, M.D., a physical medicine specialist (doc. 153). Even though Dr. Bickelhaupt is a board-certified psychiatrist, whom plaintiff proposes to call to testify about his diagnosis and treatment of plaintiff for PTSD, Union Pacific argues his proposed testimony is improper under Fed.R.Evid. 702 and 703, and the Supreme Court’s rulings in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Finally, both parties have filed non-expert motions in limine. Plaintiff seeks to exclude at trial any reference to or evidence of: (1) plaintiffs receiving railroad retirement, sickness, or disability benefits, or any payments from any private insurance company or other collateral source; (2) the criminal records of plaintiff or any of his witnesses; (3) plaintiffs prior marriages and divorces; and (4) materials received from the National Transportation and Safety Board (NTSB) (doc. 158). Union Pacific seeks to exclude at trial any reference to or evidence that FELA is the only manner for railroad employees to be compensated for on-the-job injuries, and that workers’ compensation benefits are unavailable to railroad employees (doc. 163). II. Plaintiffs Motion for Summary Judgment. A. Applicable Procedural Standards. Summary judgment is appropriate if the moving party demonstrates there is “no genuine issue as to any material fact” and that it is “entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). The court must view the evidence and all reasonable inferences that may be drawn from that evidence in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). A fact is material if, under the applicable substantive law, it is essential to the proper disposition of the claim. Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). An issue is genuine if there is sufficient evidence on each side so that" }, { "docid": "1507898", "title": "", "text": "at 256, 106 S.Ct. at 2514. The nonmoving party “may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.” Id.; Devery Implement Co. v. J.I. Case Co., 944 F.2d 724, 726 (10th Cir.1991). “In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial.” Conaway v. Smith, 853 F.2d 789, 793 (10th Cir.1988), aff'd 939 F.2d 901 (10th Cir.1991). The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Anderson, 477 U.S. at 256, 106 S.Ct. at 2514. Where the nonmoving party fails to properly respond to the motion for summary judgment, the facts as set forth by the moving party are deemed admitted for purposes of the summary judgment motion. D.Kan. Rule 56.1. The court reviews the evidence in a light most favorable to the nonmoving party, see e.g., Washington v. Board of Public Utilities, 939 F.2d 901, 903 (10th Cir.1991), under the substantive law and the evidentiary burden applicable to the particular claim. Anderson, 477 U.S. at 255, 106 S.Ct. at 2513-14. II. Implied in Fact Employment Contract Claim McDonald’s complaint claims that Ray-theon’s general policy governing absences, Policy No. 32-3001, see n. 2, supra, constitutes a promise by Raytheon that employees will be discharged only for good cause, and only in accordance with the discharge procedures set forth in Policy No. 32-3001 (Doc. 1 at 6). Raytheon contends in its partial motion for summary judgment that no implied employment contract existed, and even if one did exist, Raytheon did not breach it (Doc. 8 at 8-9). Further, Raytheon argues that if McDonald is basing his claim on breach of the collective bargaining agreement, then it is preempted by § 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185, and is barred for several reasons (Doc. 8 at 10)." }, { "docid": "3137276", "title": "", "text": "suffers from antisocial personality disorder. IV. The Parties’ Non-Expert Motions in Limine. A. Applicable Procedural Standards. In First Savings Bank v. U.S. Bancorp, 117 F.Supp.2d 1078 (D.Kan.2000), Judge Sam A. Crow concisely summarized the law governing motions in limine in federal practice as follows: The motion in limine is a creature of neither the Federal Rules of Civil Procedure nor the Federal Rules of Evidence. Deghand v. Wal-Mart Stores, Inc., 980 F.Supp. 1176, 1179 (D.Kan.1997). Such motions do “aid the trial process by enabling the Court to rule in advance of trial on the relevance of certain forecasted evidence, as to issues that are definitely set for trial, without lengthy argument at, or interruption of, the trial.” Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir.1996) (quoting Banque Hypothecate Du Canton De Geneve v. Union Mines, Inc., 652 F.Supp. 1400, 1401 (D.Md.1987)). They also may save the parties time, effort and costs of preparing and presenting their cases. Pivot Point Intern., Inc. v. Charlene Products, Inc., 932 F.Supp. 220, 222 (N.D.Ill. 1996). At the same time, it is the better practice to wait until trial to rule on objections when admissibility substantially depends upon what facts may be developed there. See Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975), cert. denied, 423 U.S. 987, 96 S.Ct. 395, 46 L.Ed.2d 303 (1975); Hunter v. Blair, 120 F.R.D. 667 (S.D.Ohio 1987). The movant has the burden of demonstrating that the evidence is inadmissible on any relevant ground. Plair v. E.J. Brack & Sons, Inc., 864 F.Supp. 67, 69 (N.D.Ill. 1994). The court may deny a motion in limine when it “lacks the necessary specificity with respect to the evidence to be excluded.” National Union v. L.E. Myers Co. Group, 937 F.Supp. 276, 287 (S.D.N.Y.1996). At trial, the court may alter its limine ruling based on developments at trial or its sound judicial discretion. Luce v. United States, 469 U.S. 38, 41, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). “Denial of a motion in limine does not necessarily mean that all evidence contemplated by the motion will" }, { "docid": "3137275", "title": "", "text": "apply to Dr. Bickelhaupt with equal force. Finally, the court is unpersuaded by Union Pacific’s argument that Dr. Bickelhaupt’s proposed testimony, as limited by the court above, nevertheless somehow runs afoul of Daubert or Fed.R.Evid. 702. As indicated above, Dr. Bickelhaupt is a board-certified psychiatrist with academic experience and training dealing with PTSD. He has treated hundreds of patients with PTSD. Based on the record provided by the parties, at this juncture it appeal's to the court that Dr. Bickelhaupt’s proposed testimony is based upon sufficient facts or data, that his testimony is the product of reliable principles and methods, and that he has applied those principles and methods reliably to the facts of this case. Putting aside for now whether Union Pacific’s cross-examination of .Dr. Bickelhaupt may impair or effectively destroy his credibility, he appears to be qualified. Further, it appears his specialized knowledge may assist the jury to understand the evidence or to determine a fact in issue, including but not limited to whether plaintiff actually suffers from PTSD or whether he merely suffers from antisocial personality disorder. IV. The Parties’ Non-Expert Motions in Limine. A. Applicable Procedural Standards. In First Savings Bank v. U.S. Bancorp, 117 F.Supp.2d 1078 (D.Kan.2000), Judge Sam A. Crow concisely summarized the law governing motions in limine in federal practice as follows: The motion in limine is a creature of neither the Federal Rules of Civil Procedure nor the Federal Rules of Evidence. Deghand v. Wal-Mart Stores, Inc., 980 F.Supp. 1176, 1179 (D.Kan.1997). Such motions do “aid the trial process by enabling the Court to rule in advance of trial on the relevance of certain forecasted evidence, as to issues that are definitely set for trial, without lengthy argument at, or interruption of, the trial.” Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir.1996) (quoting Banque Hypothecate Du Canton De Geneve v. Union Mines, Inc., 652 F.Supp. 1400, 1401 (D.Md.1987)). They also may save the parties time, effort and costs of preparing and presenting their cases. Pivot Point Intern., Inc. v. Charlene Products, Inc., 932 F.Supp. 220, 222 (N.D.Ill. 1996). At the same" }, { "docid": "12927384", "title": "", "text": "has been tolled during the pendency of the present motion. Therefore, the total amount of untolled time is 439 days, or approximately fourteen-and-a-half months. This is within the two-year FLSA statute of limitations for non-willful violations, as well as within the three-year statute of limitations for willful violations. 29 U.S.C. § 255. It is unclear to the Court why Plaintiff did not file his consent originally when he filed his Complaint, as provided in 29 U.S.C. § 256(a), and the Court finds questionable Plaintiffs timing for moving for a collective action on the same date imposed by the Court for pre-trial submissions. However, because of the unique procedural posture of the ease, whereby the Court directed Plaintiff after he had filed his Complaint to postpone any motions for collective or class action until after its decision regarding summary judgment, the Court finds Plaintiffs claims are not time-barred. 2. Potential Plaintiffs Defendants also argue that the statute of limitations has run on the claims of potential plaintiffs who have not yet opted into the collective action. Of the approximately forty-four potential plaintiffs identified thus far, seventeen, like Plaintiff, last worked for the Defendants in 1999, eight last worked for Defendants in 1998, and nine last worked for Defendants in 1997. (Little Deck, Ex. G.) Therefore, equitable tolling is necessary for any of these claims to proceed. Equitable tolling generally may be applied to “avoid inequitable circumstances” and may be applied “as a matter of fairness where a [party] has been prevented in some extraordinary way from exercising his rights.” Iavorski v. United States I.N.S., 232 F.3d 124, 129 (2d Cir.2000); Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.2000) (explaining that equitable tolling only applies in extraordinary or exceptional circumstances). Plaintiff argues that equity demands that the Court toll the statute of limitations for all class members who may file consents in response to the authorized notice. (PL Reply Mem. Law at 3-4). In an analogous ease in which Plaintiff moved to proceed collectively under both the FLSA and state labor laws, the Realite court authorized notice to employees who worked" } ]

[ { "docid": "21558829", "title": "", "text": "Opinion for the court filed by Circuit Judge HENDERSON. KAREN LeCRAFT HENDERSON, Circuit Judge: Petitioner Consolidated Rail Corporation (Conrail) seeks reversal of the issuance by the Interstate Commerce Commission (ICC or Commission) of a certificate of abandonment for a one and one-half mile section of elevated railroad track in New York City owned by Conrail and known as the Highline. Intervenors Chelsea Property Owners (CPO), who own property adjacent to the elevated track, and the City of New York, the Metropolitan Transit Authority of New York, the New York Convention Center Development Corporation and the New York State Department of Transportation (New York parties) ask that the issuance of the certificate be affirmed. As cross-petitioners, the New York parties ask that the ICC’s decision to condition the abandonment on the posting of a surety bond by CPO be reversed. CPO supports the New York parties on the surety bond issue and Conrail supports the ICC. This case involves an unusual practice known as adverse abandonment. In a typical abandonment case a railroad requests the ICC to allow it to discontinue service over a particular line. If the ICC finds that the public convenience and necessity require or permit abandonment, it issues an abandonment certificate. See 49 U.S.C. § 10903(a). In an adverse abandonment, the carrier wants to continue service; it is a third party who seeks the issuance of an abandonment certificate. Generally, a third party seeks abandonment because it wants the rail line condemned; an abandonment certificate can be used in state court to establish that the line is not required for rail service in interstate commerce and therefore is not exempt from local or state condemnation. See Kansas City Pub. Serv. Freight, 7 I.C.C.2d 216, 225 (1990) (quoting Modern Handcraft, Inc., 363 I.C.C. 969, 972 (1981)). Once an abandonment certificate issues, property owners with reversionary rights in the rail line may be able to have the fine condemned and their property restored. This case follows the typical pattern: CPO seeks the abandonment certificate so that the Highline can be condemned and its members can assert their reversionary rights" } ]

[ { "docid": "17393248", "title": "", "text": "in the additional deep channel areas would drop below Maryland water quality standards, rendering aquatic life virtually impossible. The second aspect of the Project is the terminal itself, which includes facilities to process the approximately 3.7 million cubic yards of contaminated material to be dredged from the harbor. The processing of the dredged material as called for under the Project involves both the de-watering of the dredged spoil and the mixing of the de-watered spoil with Portland cement and other additives in an effort to bind the contaminants within the processed dredged material (the PDM). Depending on the success of that process in preventing the leaching of historical contaminants, AES hopes to make the PDM available as fill material for mine reclamation projects, construction fill, and other development projects, with placement in land fills as a secondary option. The final aspect of the Project is the installation of a natural gas pipeline, thirty inches in diameter and approximately eighty-eight miles long, from Baltimore Harbor to Eagle, Pennsylvania, where the pipeline would connect with three existing interstate pipelines. Among other things, the pipeline would cross streams and wetlands in Maryland, raising concerns regarding the destruction of aquatic habitat and water quality through sedimentation. B. Relevant Statutes and Agencies Involved in Authorizing the Project. The Natural Gas Act, 15 U.S.C. §§ 717 to 717z, requires a party seeking to construct a LNG terminal to obtain authorization from the Federal Energy Regulatory Commission (FERC). Id. § 717b(a). In order to do so, applicants must comply with the Natural Gas Act’s requirements as well as complete FERC’s extensive pre-filing process. 18 C.F.R. § 157.21. FERC must then consult with the appropriate state agencies on numerous state and local issues. 15 U.S.C. § 717b-1(b). FERC carries out reviews under the Natural Gas Act and the National Environmental Policy Act, 42 U.S.C. §§ 4321-4370f, and, as the statutorily designated “lead agency,” coordinates other agencies’ reviews related to a LNG project under other applicable statutes. 15 U.S.C. § 717n(b)(1). The FERC docket serves as a central conduit and repository for information requests and responses and is the" }, { "docid": "14763775", "title": "", "text": "cross-motions for preliminary injunc-tive relief. First, defendant Egg Harbor LLC moved to preliminarily enjoin plaintiff (and counterclaim defendant) EH Yacht LLC from using the mark Egg Harbor in connection with its new company. Defendant Egg Harbor LLC, to prevail on its motion, must show, among other requirements for preliminary injunctive relief, that it is likely to prevail on the merits of its claim against EH Yacht LLC. Egg Harbor LLC has the trial burden of demonstrating by clear and convincing evidence that the trademark was abandoned within the meaning of section 45 the Lan-ham Act, 15 U.S.C. § 1115. This burden will require examination whether there was absence of an intent to resume use of the trademark by those having the right to do so. In the cross-motion for preliminary in-junctive relief, plaintiff EH Yacht LLC seeks to demonstrate that it is the owner of the Egg Harbor trademark as the holder in due course of the assets of the company once known as Egg Harbor Yacht Co. by virtue of an acquisition, for fair market value, of the EGG HARBOR name and mark from the statutory receiver appointed to dispose of Marine’s assets. Plaintiff will have the burden of proving its ownership at trial by a preponderance of the evidence, and alleges that it is likely to succeed in meeting this burden. If EH Yacht LLC is able to demonstrate that the statutory receiver indeed possessed all right, title and interest to the mark at the time the receiver sold it to plaintiff, then it should prevail at trial. Both sides assert that their adversary’s actions are unlawful and are causing much confusion in the public’s perception of Egg Harbor Yachts. Specifically, the yacht-buying market is unable at this point to tell who is the rightful successor to Egg Harbor’s prestigious and venerable name and mark. Both sides assert that they are suffering irreparable harm at the hands of the other company due to confusion in the marketplace and a consequent loss of Egg Harbor’s market share. The facts of this case present an unusual combination of federal trademark" }, { "docid": "20180850", "title": "", "text": "the Pennsylvania Railroad Company to and from the places of business of shippers and consignees in the Boroughs of Manhattan, Brooklyn and Queens, instead of to and from the waterfront stations as now and as for a long time heretofore provided, is intended of accomplishment by means of motor truck conveyance between the waterfront yards of the Pennsylvania Railroad Company on the New Jersey side of the harbor and the places of business of shippers and consignees in the Boroughs of Manhattan, Brooklyn’ and Queens, which such motor trucks will among the other methods move across the harbor under their own power through tunnels and over bridges, using for that purpose the many miles of streets of the Cities of New Jersey and New York.” Complainants aver that such purpose of the defendant' constitutes in law an extension and abandonment of its lines of railroad and the operation of additional new lines of railroad for the transportation of interstate commerce contrary to the provisions of section 1 of the Interstate Commerce Act (49 USCA § 1). That act'requires application to be made for a certificate of convenience and necessity for certain purposes therein described. No answer has been filed to the bill, but a formal motion to dismiss was filed by defendant, averring lack of jurisdiction in this court and denying that the averments in the bill show that the defendant is undertaking or contemplating the extension or abandonment of its line of railroad. The act of Congress creating the Interstate Commerce Commission was passed to vest in the Interstate Commerce Commission the power and responsibility of deciding the questions of railroad management and control enumerated in the act. Section 1 et seq. (49 USCA § 1 et seq.). Within the scope of these enumerated powers and responsibilities the Commission is supreme. Jurisdiction is vested in the United States courts to enjoin under certain circumstances. Is this case one of such circumstances as to warrant the issuance of a preliminary injunction? - On a motion for a preliminary injunction the court is of the opinion that, as a general rule," }, { "docid": "20834957", "title": "", "text": "1.8 miles long. This connects with some 13.56 miles of track in Brooklyn and car-float and towage facilities that are operated by the Railroad but are owned and had previously been operated by Bush Terminal, allegedly as agent for the Railroad and for trunk line carriers serving New York Harbor. In Bush Terminal R.R. Co. Operation, 257 I.C.C. 375 (1944), the Commission authorized the Railroad, pursuant to § 1(18) of the Interstate Commerce Act, to extend its railroad by acquiring through lease the trackage and other facilities owned by Bush Terminal. The lease took effect on January 1, 1945. Since then the Railroad, as a common carrier, has moved cars between industries in and near the Bush Terminal in Brooklyn across New York Harbor to and from various trunk line terminals in New Jersey. In December, 1968, Bush Terminal, having changed its name and become a conglomerate, controlled by Universal Consolidated Industries, Inc., a still more conglomerated conglomerate, conveyed all its real estate, including some of the land over which the Railroad operates, to a newly organized, wholly owned subsidiary, Bush Terminal Company, Inc. This new subsidiary assumed its parent’s obligations under the lease to the Railroad. We will generally refer to Bush Universal, Inc. and Bush Terminal Company, Inc., simply as “the Terminal Company.” The Railroad, on October 23, 1969, filed an application under § 1(18) of the Interstate Commerce Act for permission to abandon the operation both of its owned and of its leased properties. Hearings were held in late June, 1970. The application was opposed by users of the service, governmental and quasi-governmental bodies and labor organizations representing the Railroad’s employees. In their post-hearing briefs the City, the State, and the Users Association for the first time raised the issue that authorization of abandonment by the lessee, the Railroad, would not relieve the lessor, the Terminal Company, of its independent obligation to operate the leased properties, an obligation that would revive upon discontinuance of operations by the lessee. See Lehigh Valley R.R. Co. Proposed Abandonment of Operation, 202 I.C.C. 659, 663 (1935); Norfolk S.R.R. Co. Receivers Abandonment," }, { "docid": "919941", "title": "", "text": "the bridges approved by the Department are specially authorized by Congress. The others are approved under consent of State legislatures in accordance with the authority found in Section 9 of the River and Harbor Act of March 3, 1899, and those of this class hereafter approved, will not be subject to the proviso unless existing law is modified. Bridges of this class include some of the largest and most costly in the United States, such for example, as the arch bridge crossing the East River at Hall Gate, New York City, and two of the suspension bridges ^over that river between New York and Brooklyn. Some of the other important waterways which have been or may be bridged on plans approved under authority of State law, are Portland Harbor, No. 1 Boston Harbor, Mass.; New London Harbor, Conn.; Baltimore Harbor, Md.; Norfolk Harbor, Va.; Galveston Harbor, Tex.; San Francisco and the Golden Gate, Calif.; and Puget Sound, Wash. Congress may and frequently does authorize the construction of bridges over waters, the navigable portions of which are wholly within the limits of a single State. It may be expected to take similar action in the future and it is quite probable therefore that the following will result, of two bridges crossing the same waterway, one constructed under plans approved subject to the proviso in question, and the other constructed on plans approved subject to the provisions of State law. The former will represent a considerably greater cost on account of additional expense due to the checking of its plans and the supervision of construction by Federal authorities, and as far as interest earnings on investment is concerned will be at a disadvantage as compared with the other structure. The delay and expense that will be caused applicants for approval of plans by the proviso will arise from the fact that applicants must present and the Department must verify, far more information and detailed plans than is now required. Under the practice prevailing hitherto, the Department’s examination has ordinarily been confined to the effect of the structure upon commerce and navigation, and" }, { "docid": "22557441", "title": "", "text": "city appeared to the suit and filed its answer, admitting all the allegations of fact in the\" bill. A subsequent motion by the complainant to remand the case to the state court was denied. 16 Fed. Rep. 881. The pleadings were afterwards altered in various particulars. An • amended information or bill was filed by the Attorney General, and the city filed a cross-bill for affirmative relief against the State and the coippany. The latter appeared to the cross-bill and answered it,'as did the Attorney General for the State. Each party has. prosecuted a separate appeal. The object of the suit is to obtain a judicial determination of the title of certain lands- on the east or lake front, of the city of Chicago, situated between the Chicago River and Six- ■ t'eenth street, which have been reclaimed from the waters of the lake, and are occupied by the tracks, depots, warehouses, piers arid other structures used by the railroad company in its business; and also óf the title claimed by the company to the submerged lands, constituting the bed of the lake, lying east of its tracks, within the corporate limits of the city, for the distance of a mile, and between the south line of the south pier near Chicago River extended eastwardly, and a line extended, in ■ the same direction, from the south line of lot 21 near the company’s round-house and machine shops. The determination of the title of the company will involve a consideration of its fight to construct, for its- own business, as well as for public convenience, wharves, piers and docks in the harbor. We agree with the court below that, to a clear understanding of ■ the numerous questions presented in this case, it was necessary to trace the history of the title to the several parcels of-land- claimed by the company. And the court, in its elaborate opinion, (33 Fed. Rep. 730,) for that purpose referred to the legislation of the United States and of the State, and to ordinances of the. city and proceedings thereunder, and stated, with great" }, { "docid": "11884041", "title": "", "text": "COLEMAN, Circuit Judge. The Lake Charles Harbor and Terminal District was created in 1924 as a political subdivision of the State of Louisiana. It has constructed, developed, maintained, and operated harbor and terminal facilities since its inception. In connection with these facilities, it has, from time to time, issued bonds and other indebtedness for capital improvement of the Port facilities. In 1965 the District filed its suit in State Court to expropriate (condemn) 26.62 acres of land, the property of the appellants. The owners, being nonresidents of Louisiana, removed the case to the United States District Court for the Western District of Louisiana. In vigorously contested proceedings which developed a record of 1700 pages, that Court ordered the lands expropriated and fixed just compensation, 260 F.Supp. 756 (1966). The landowners appeal and the District has cross appealed. The Judgment of the District Court will be vacated and remanded. The landowner appellants challenge the constitutionality of the taking and the amount of compensation. The cross appellant complains that the compensation was excessive. Quite logically, the hearing in the District Court was divided into two parts. The first part, comprising 946 pages of the appellate record, considered the question of the right to expropriate. The paramount issue was whether the District intended to use the lands for the construction of a coke plant as alleged in its petition. Such a coke plant was held to be for a public use by the Louisiana Court of Appeals in a companion case, Lake Charles Harbor & Terminal District v. Farquhar, 196 So.2d 847 (1967). The proof raised very strongly the likelihood that the lands would not, in fact, be used for the purpose alleged in the petition. There was much talk about a bulk storage plant of some, undefined nature. The record reveals that on the witness stand two officials of the Harbor Board declined to state who might use the storage tank (if that were the facility constructed) or what might be stored in it. After hearing the evidence as to the use to which the lands were to be put, the Court" }, { "docid": "7754809", "title": "", "text": "WEBSTER, Circuit Judge. Richard and Barbara Hysell, husband and wife, instituted this diversity action for the recovery of damages for personal injuries from the Iowa Public Service Company (IPS) and the City of Sioux City, Iowa. IPS and Sioux City joined the Irving F. Jensen Company and Thurman Simpson, an employee of Jensen Company, as third-party defendants for indemnity or contribution. Sioux City also filed a cross-claim against IPS seeking contractual indemnification. The principal facts are undisputed: Richard Hysell was employed by Jensen Company as a grading and paving laborer on the construction of city streets. On May 18, 1973, Hysell and other Jensen Company employees were working in Sioux City, Iowa, on the completion of Murray Street, an unplatted road which intersected Harbor Drive from the west. IPS owned an uninsulated power line transmitting 12,420 volts of electric current that stood at a maximum height of nineteen and one-half feet above and twelve to fifteen feet within the western boundary of the right-of-way of Harbor Drive in the area of its intersection with Murray Street. No signs or other devices warning of possible danger from the line were placed in the area. At approximately 5:15 p.m., Thurman Simpson was operating a boom truck used in the transportation and placement of street paving forms. The maximum height of the boom in normal operating position was nearly twenty-one feet. As a form was being unloaded along Murray Street near the intersection with Harbor Drive, the boom came into contact with the IPS power line. Hysell reached into a compartment of the boom truck at the same time the contact with the line occurred, and he received a severe electric shock and burns, resulting in the substantial injuries which are the subject of this suit. Various officers and employees of IPS knew that construction was increasing in the area of the intersection of Harbor Drive and Murray Street and that the particular grading and paving project involved here had been undertaken. Sioux City, though not a party to the contract under which the project was performed, frequently sent inspectors to the construction" }, { "docid": "22074831", "title": "", "text": "of\" December, 1921, adopted by the two states in 1922. Laws of N. Y., 1922, c. 43; Laws of N. J., 1922, c. 9. In conformity to the plan, and pursuant to further legislation of the two states, the Authority has con structed the Outerbridge Crossing Bridge, the Goethals Bridge, the Bayonne'Bridge, and the George Washington Bridge, interstate vehicular bridges all passing over waters of the harbor or adjacent to it. It has also constructed the Holland Tunnel and the Lincoln Tunnel, interstate vehicular tunnels passing under the Hudson River. These enterprises were finánced in large part by funds advanced by the two states and by the Port Authority’s issue and sale of its bonds. In addition, the Authority operates an interstate bus line over the Goethals Bridge. It has erected and operates the Port Authority Commerce Building in New York City, which houses Inland Terminal No. 1, devoted to usé as a freight terminal in connection with a plan to coordinate transportation facilities and reduce congestion. The terminal has no physical connection with any railroad facilities, dock or pier, but is used as .a transfer terminal for interchange of freight brought by truck from and to the terminal and to and from eight railroad terminals. The Port Authority collects tolls for the use of the bridges and tunnels, and derives income from the operation of the bus line and terminal building, but it has no stock and no stockholders, and is owned by no private persons or corporations. Its projects are all said to be operated in behalf of the two states and in the interests of the public, and none of its profits enure to the benefit of private persons. Its property and the bonds and other securities issued by it are exempt by statute from state taxation. The Joint Resolution of Congress consenting to the comprehensive plan of port improvement, Pub. Res.. No., 66, 67th Cong., H. J. Resolution No. 337, July 1, 1922, declares that the activities of the Port Authority under the plan “will the better promote and facilitate commerce between thé States and between" }, { "docid": "14763777", "title": "", "text": "law and creditors’ rights. The Court is called upon to determine what, if any, rights a creditor has to a registered trademark when the trademark owner discontinues manufacture of the trademarked product and becomes insolvent. As will be discussed in further detail below, if the trademark was abandoned before the creditor’s rights vest, then the creditor’s interest in the trademark is dissolved. If, on the other hand, the trademark was not abandoned, then the creditor’s rights to the trademark vest upon seizure of the debtor’s assets. The principal issue then boils down to the question of trademark abandonment, i. e., whether defendant will likely be able to prove by clear and convincing evidence that the trademark was abandoned with no intent to resume use in a reasonable period of time. If abandonment is not demonstrated to this standard, the issue becomes whether the plaintiff is likely to succeed in its claim of rightful ownership though its acquisition of the Egg Harbor trademark from the statutory receiver. For reasons discussed herein, the Court will resolve all issues in favor of the plaintiff, EH Yacht LLC, and will deny defendants’ application for preliminary injunctive relief. For these same reasons, the Court will grant plaintiffs cross-motion for preliminary in-junctive relief, and will enjoin Egg Harbor LLC from using the Egg Harbor name and logo in connection with the manufacture and sale of luxury yachts. This Court has received into evidence the numerous exhibits and affidavits accompanying the parties’ briefs, together with the arguments of counsel on December 13, 1999. The following findings are entered pursuant to Rules 52(a) & 65, Fed. R.CivJP. II. FINDINGS OF FACT The Egg Harbor Yacht Co. (“EHYC”), founded in 1946, once was one of the nation’s most prominent boat builders, and one of Egg Harbor City’s biggest employers. The Egg Harbor name has been in use in connection with inboard motor boats, yachts, and cruisers since the company’s inception in 1946. The most recent renewal of the company’s trademark on the Egg Harbor name was filed on behalf of the Egg Harbor Yacht Co. in December 1994, and" }, { "docid": "8973009", "title": "", "text": "MEMORANDUM OPINION AND ORDER LOZANO, District Judge. This matter is before the Court on the United States’ Motion for Partial Summary Judgment under the United States’ First Claim for Relief filed February 7, 1992, the United States’ Motion for Partial Summary Judgment Under the United States’ Second Through Sixth Claims for Relief, filed on February 18, 1992, The United States’ Motion to Strike the Defendant’s Citation of Supplemental, Dispositive Authority, filed October 19, 1992, the Defendants’ four motions for partial summary judgment on issues regarding Subtitle C of RCRA, and the Defendant’s Cross-Motion for Partial Summary Judgment on Corrective Action Issues, both filed on February 18, 1992, and the Defendant’s Supplemental Cross-Motion for Partial Summary Judgment on Corrective Action Issues, filed April 14, 1992. For the reasons set forth below, this Court hereby GRANTS the United States’ Motions and DENIES the Defendant’s Motions. BACKGROUND In this case, the Plaintiff, the United States (“the United States”) alleges that a series of environmental violations have occurred and continue to occur at the Defendant, Bethlehem Steel Corporation’s (the “Defendant”), integrated steelmaking facility located in Burns Harbor, Indiana. The United States asserts six claims for relief in its Complaint based upon two federal environmental statutes. In its first claim for relief, the United States alleges that the Defendant violated the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6901 et seq., and the Safe Drinking Water Act (“SDWA”), 42 U.S.C. § SOOfet seq., by failing to perform the corrective action program required by two Underground Injection Control (“UIC”) permits that the Environmental Protection Agency (the “EPA”) issued to the Defendant. The United States alleges in its remaining five claims that the Defendant violated numerous RCRA requirements in its operation and management of three hazardous waste management units at its Burns Harbor facility, i.e., a landfill and two terminal polishing lagoons (“the lagoons”). The United States seeks both injunctive relief and civil penalties for each of its six claims. DISCUSSION Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is proper only if it is demonstrated that there is no" }, { "docid": "5888512", "title": "", "text": "revenues from the fare box would be adequate only to finance operations and maintenance, and that public subsidies would be needed to raise the funds to pay for the fixed transit system and the rolling stock. . The principal differences between 10-D and 3-A as modified are: Segment 10 has become an Interstate spur, 1-170. Segment 13, the Gwynns Falls corridor, is wholly new, extending I-70N to 1-95. Segment 11a, the City Boulevard from 1-170 south and east to Battery Avenue, although not part of the Interstate System, is a Federal-aid primary highway. Segment lib, the City Boulevard from 1-170 north and east to Mount Royal Avenue is wholly new, and is not part of the Interstate funding program. Segment 6, 1-395, from the Middle Branch of the Patapsco to Henrietta Street has become a spur on the Interstate System. The crossing of the Inner Harbor by 1-95 has been eliminated. Segment 14, 1-95 from Russell Street east to O’Donnell Street, through Locust Point with a crossing of the Harbor at Fort McHenry, is wholly new. . The “Final Form of Consensus Reached at 9/15/72 Meeting Concerning Baltimore 3-A Highway System” states the consensus, as follows: “1. A large number of EPA's critical comments can be addressed through the preparation of final impact statements on the present segment basis. EPA will receive a copy of these final impact statements. “2. On the comments of EPA which involves regional impact considerations the following procedure was agreed upon: “A. The Franklin-Mulberry corridor portion of 1-170 will be processed through to the Council on Environmental Quality with the understanding that this project can function as an independent part of the interstate system. Because the construction of this project is not viewed as a commitment to the entire 3-A system, it will not be required to address R.I.C.’s. “B. For all remaining segments under environmental review, TEU, after satisfying its other criteria, will transmit the final environmental impact statement to the Council on Environmental Quality with the administrative stipulation that neither PS&E approval, nor further ROAV approval will be granted until a Regional Impact" }, { "docid": "23312197", "title": "", "text": "the run-off would flow downhill from the TAS property, onto Niagara Flats, and from Niagara Flats into the harbor. MVO learned of TAS’s truck-washing operation when it purchased the Niagara Flats property from NMPC. At or about the time the MVO facility became operational a year later, MVO finished construction of a separator device designed to intercept the run off from TAS before it reached the harbor, and to separate the kerosene and tar from the water. Osley testified that the purpose of the separator was to catch contaminants from TAS’s truck-washing operations “[a]nd anything that leaked off our trucks or something like that.” Three or four years later, MVO built a berm to prevent the TAS run-off from reaching MVO’s property. Munsell, MVO’s former manager of operations, testified that he was unaware of any spill while he was employed by MVO. Although he was never stationed at Niagara Flats or the Texaco property, Munsell testified that MVO “kept close track of every gallon” of fuel, and that the MVO monitoring systems were sensitive enough to pick up, on one occasion, the theft of four gallons of fuel. Between 1989 and 1992, NMPC entered into four consent orders with the State of New York requiring environmental remediation of the harbor and the peninsula. NMPC in turn sued MVO, several other companies that owned or operated facilities on the peninsula, and various state agencies, claiming that they all had contributed to the contamination. At the close of discovery, NMPC moved for summary judgment against three of the defendants, including MVO; MVO cross-moved. The court denied NMPC’s motion as to MVO and granted MVO’s cross-motion on the grounds that NMPC had failed to satisfy its burden on • the Navigation Law claim and that MVO had successfully established the third-party defense under CERCLA. NMPC settled with the other defendants, and this appeal followed. II. This Court reviews the district court’s grant of summary judgment de novo. See Young v. County of Fulton, 160 F.3d 899, 902 (2d Cir.1998). In so doing, this Court construes the evidence in the light most favorable to" }, { "docid": "4875166", "title": "", "text": "cover environmental cleanup costs and personal injury claims relating to more than twenty-five sites, including the Harbor Island site. In 2001, several CGL insurers made International a cross-claim defendant in the Harrison County action and sought contribution. RSR also asserted claims against International in the Harrison County action for breach of the Environmental policies, violations of the Texas Insurance Code, and recovery of attorney’s fees. In the Harrison County action, RSR asserted that the CGL insurers were obligated to reimburse it for environmental costs because the pollution had been acci dental. RSR argued that accidental pollution satisfied the CGL policies’ “sudden and accidental” exception to the exclusion of environmental claims. Although the CGL insurers contested this assertion by arguing that the “sudden and accidental” exception could only be triggered by pollution that was both sudden and accidental, the Harrison County court adopted RSR’s reading of the policies in a letter ruling dated March 19, 2003. Between 1993 and 2005, RSR entered into thirty-six separate settlement agreements with its CGL insurers, from which it received an aggregate payment of $76,006,501.00. It dismissed the rest of its CGL insurers from the Harrison County action. It also dismissed International. Following the execution of the last of the settlements, RSR non-suited the Harrison County action. In the meantime, International had initiated the present action in federal court in February 2000, seeking a declaratory judgment that it had no obligations to RSR under the Environmental policies in connection with the Harbor Island site or with another site in West Dallas, Texas. In August 2001, RSR and International tried certain coverage issues relating to the Harbor Island claim before a jury, while reserving unripe coverage and damages issues for future resolution. Issues relating to the West Dallas site were severed into a separate trial and were later settled. After the jury returned its verdict on the Harbor Island issues, the district court entered judgment for RSR, declaring that International was: “contractually obligated to indemnify RSR for any remediation costs and expenses that RSR is or becomes obligated to pay to the United States Environmental Protection Agency" }, { "docid": "919940", "title": "", "text": "the volume and weight of the traffic which will pass over the bridge. It is understood that this proviso will probably appear in all bridge bills hereafter enacted by Congress. The purpose is presumed to be the giving of added assurance to the public concerning the safety of the structures, and also to insure, so far as possible that they will be planned on a scale likely to be sufficient for the increased traffic of the future. The Department does not object to undertaking this work, but it is desired to point out that the proviso will cause great delay and additional expense to applicants in obtaining approval of plans; that it is likely to increase considerably the administration expenses of the Department; will possibly open the door to claims against the United States if approved structures fail and cause destruction of life or property; and that it will not affect the great majority of bridges constructed over navigable waters. The last-mentioned feature of the matter arises from the fact that only about one-fifth of the bridges approved by the Department are specially authorized by Congress. The others are approved under consent of State legislatures in accordance with the authority found in Section 9 of the River and Harbor Act of March 3, 1899, and those of this class hereafter approved, will not be subject to the proviso unless existing law is modified. Bridges of this class include some of the largest and most costly in the United States, such for example, as the arch bridge crossing the East River at Hall Gate, New York City, and two of the suspension bridges ^over that river between New York and Brooklyn. Some of the other important waterways which have been or may be bridged on plans approved under authority of State law, are Portland Harbor, No. 1 Boston Harbor, Mass.; New London Harbor, Conn.; Baltimore Harbor, Md.; Norfolk Harbor, Va.; Galveston Harbor, Tex.; San Francisco and the Golden Gate, Calif.; and Puget Sound, Wash. Congress may and frequently does authorize the construction of bridges over waters, the navigable portions of which" }, { "docid": "22905126", "title": "", "text": "planks or steel sheets at intervals of 5 to 10 feet, together with suitable cross-braces. This method is used when the trench is in hard, compact material. Description of Boston Army Base; Reason for Sheathing Requirement 13. (a) The Boston Army Base is built on a finger of filled land reaching out into Boston Harbor from Summer Street. The Base consists of a main artery, Terminal Street, which is bounded on the north side, as the Base is entered, by a cinder parking lot followed by the Dispensary, the Administration Building, and a series of eight-story warehouse buildings, terminating in the north pier shed. The south side of Terminal Street, as the Base is entered, is first bounded by a parking and open storage area extending to the point opposite the far end of the Administration Building where a series of continuous wharf-shed buildings commence, terminating at the south pier shed. Terminal Street is approximately 86 feet wide but contains two railroad tracks toward the wharf-shed side. The street was subjected to the heavy truck and rail traffic connected with the operation of a port of. embarkation and warehouse storage area. (b) The Base is bounded on its south side by the harbor channel and on the north side by the South Boston Annex of the Boston Navy Yard. Between the back of the warehouse buildings facing on Terminal Street and the Navy Yard is a street — Dry Dock Avenue — located on the Navy Base. Contrasted with the area of Terminal Street between the wharf-shed and warehouse buildings, the Dry Dock Avenue area behind the Army Base was relatively open and unrestricted. (c) The 6,794 linear feet of water main to be replaced formed an oval pattern extending first from the junction of the water main with the City of Boston supply on Sum mer Street down Dry Dock Avenue on Navy Base property, across into the harbor end of the Army Base, to the north and south pier shed areas, hack along Terminal Street, and then across the cinder parking area to join the main on the" }, { "docid": "14763774", "title": "", "text": "OPINION SIMANDLE, District Judge. I. INTRODUCTION In this trademark infringement dispute, two companies each claim the right to use the name EGG HARBOR in connection with the manufacture and sale of luxury sports fishing yachts following the November 1997 cessation of operations of the registered owner of the Egg Harbor mark, Marine Acquisitions, Inc. (“Marine”). Plaintiff — EH Yacht, LLC, and its principal, Dr. Ira Trocki — claims to have purchased title to the name Egg Harbor, and the related trademark of a stylized sailfish wearing a crown, in September 1999 from the statutory receiver court-appointed to wind up Marine’s financial affairs. Plaintiff has readied its manufacturing operations, and is now close to completing its first vessel. Defendants — Egg Harbor LLC, and its principals John and Gigi DiDonato — claim that Marine Acquisitions abandoned the EGG HARBOR trademarks when it ceased operations without intent to reopen the business or otherwise use the mark, and that by May 1998, defendant was taking steps to use the abandoned mark. Presently before the Court are the parties’ cross-motions for preliminary injunc-tive relief. First, defendant Egg Harbor LLC moved to preliminarily enjoin plaintiff (and counterclaim defendant) EH Yacht LLC from using the mark Egg Harbor in connection with its new company. Defendant Egg Harbor LLC, to prevail on its motion, must show, among other requirements for preliminary injunctive relief, that it is likely to prevail on the merits of its claim against EH Yacht LLC. Egg Harbor LLC has the trial burden of demonstrating by clear and convincing evidence that the trademark was abandoned within the meaning of section 45 the Lan-ham Act, 15 U.S.C. § 1115. This burden will require examination whether there was absence of an intent to resume use of the trademark by those having the right to do so. In the cross-motion for preliminary in-junctive relief, plaintiff EH Yacht LLC seeks to demonstrate that it is the owner of the Egg Harbor trademark as the holder in due course of the assets of the company once known as Egg Harbor Yacht Co. by virtue of an acquisition, for fair" }, { "docid": "20834956", "title": "", "text": "temporary restraining order, see 28 U.S.C. § 2284(3). Judge Weinstein denied this but set the City’s motion for a temporary injunction for argument on December 22 before a three-judge court which he asked to have convened, 28 U.S.C. §§ 2321, 2325. At the argument, the Bush Terminal Users Association, Inc., United Transportation Union, the Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employes, and the Department of Transportation of the State of New York were allowed to intervene as plaintiffs. Issuance of a temporary restraining order was again refused, but we reserved decision on the motion for a temporary injunction pending the filing of the record and briefs. The Railroad, organized in 1903, is a wholly-owned subsidiary of Bush Universal, Inc., which had been known as Bush Terminal Company until July, 1968. The purpose of establishing the Railroad was to acquire franchise rights in city streets and extend to new buildings railroad services then being provided in Brooklyn, New York, by Bush Terminal. The line owned by the Railroad is only 1.8 miles long. This connects with some 13.56 miles of track in Brooklyn and car-float and towage facilities that are operated by the Railroad but are owned and had previously been operated by Bush Terminal, allegedly as agent for the Railroad and for trunk line carriers serving New York Harbor. In Bush Terminal R.R. Co. Operation, 257 I.C.C. 375 (1944), the Commission authorized the Railroad, pursuant to § 1(18) of the Interstate Commerce Act, to extend its railroad by acquiring through lease the trackage and other facilities owned by Bush Terminal. The lease took effect on January 1, 1945. Since then the Railroad, as a common carrier, has moved cars between industries in and near the Bush Terminal in Brooklyn across New York Harbor to and from various trunk line terminals in New Jersey. In December, 1968, Bush Terminal, having changed its name and become a conglomerate, controlled by Universal Consolidated Industries, Inc., a still more conglomerated conglomerate, conveyed all its real estate, including some of the land over which the Railroad operates, to a" }, { "docid": "13944880", "title": "", "text": "post-petition right to and did in fact deduct its lease payments from its taxable income. Former IRC Section 168(f)(8), as a safe harbor, requires rigid compliance with its provisions to continue to enjoy the benefits conferred. A deviation from the terms of the contract or tax law is necessarily material if it results in loss of Frito-Lay’s bargained for benefit. {See, Opposition And Affidavits of Frito-Lay at para. 14.) (emphasis in original). Additionally, Frito-Lay argues that “whatever LTV’s interpretation of the literal language of the documents, evidence of the post-petition actions of the parties carrying out the provisions of such agreement will demonstrate the executory nature of the TBT Agreements.” {See, id. at para. 15.) (emphasis in original). Frito-Lay also argues that “to the extent LTV obtained a post-petition benefit under the TBT Agreements, which it has by allegedly retiring and abandoning the Safe Harbor Property, it must take the detriment, namely the obligation to pay Frito-Lay for its repurchase of the Safe Harbor Property.” {See, Frito-Lay’s Application In Support Of Cross-Motion at para. 56.) As stated previously, this opinion is limited to those issues outlined in the Debtor’s Motion For Partial Summary Judgment which are based directly on contractual rights of the parties pursuant to the TBT Agreements, to wit: Whether the Frito-Lay TBT Agreements are executory contracts or unexpired leases under § 365 of the Code, and whether the Indemnity Loss claims being asserted by Frito-Lay are pre-petition general unsecured claims which are not entitled to priority. Frito-Lay’s yet to be filed Cross-Motion seeking adminis trative expense entitlement, which is not presently before the Court, allegedly will involve issues relating to Debtors’ post-petition conduct which are found in tort, conversion, misrepresentation, etc_ Consequently, Frito-Lay’s assertion that these alleged activities render these TBT Agreements executory is misguided. Rather, “[a]t this juncture, the only issue before [this Court] is whether LTV’s contractual obligation to indemnify accords Frito-Lay an administrative or general unsecured claim.” In re Chateaugay Corp., 99 B.R. 206, 208 (S.D.N.Y.1989) (emphasis in original). Therefore, Frito-Lay’s additional grounds for recovery, if any, are matters for another day and do" }, { "docid": "4211385", "title": "", "text": "seals are already accustomed to the shipping traffic and would not be significantly disturbed. 5. Upland habitat. The parties agree that the port terminal would eliminate at least 40 acres of wooded upland habitat which supports several kinds of mammals and birds (including foxes, white-tailed deer, Osprey, and Woodcock). Maine’s DOT and the Corps concluded, however, that the loss was not significant because the 40 acres represent only 4 percent of the island’s total ‘upland habitat’; displaced animals could go elsewhere; and the area has an abundance of such resources. 6. Run-off. Several federal environmental agencies and the Corps noted that the ‘run-off’ of water contaminated by oil, grease, and toxic substances from the marine terminal could pollute water in the harbor. Consequently, the Corps included in its permit for the project the condition that the terminal include facilities capable [of] preventing the discharge of sediment grease and oil associated with storm drainage discharge to the satisfaction of the Division Engineer. 7. Tidal exchange. During each tidal cycle, approximately 22 million cubic feet of water crosses the gravel bar along which the state intends to build the causeway. The Corps has required Maine to include a 24-inch diameter culvert through the causeway to permit some tidal ex change between the two harbors that the causeway will separate. In light of this requirement, and the fact that the 22 million cubic feet of water represents only 3 percent of the total amount of tidal flow in and out of the two harbors, the Corps concluded that any impact on tidal exchange would not prove significant. 8. Dredging and‘spoil’disposal. Construction of the port will require the disposal of over 2 million cubic yards of dredged material (called ‘spoils’) — 1.3 million in the initial phases of the project; 750,000 in the later stages. The Fish and Wildlife Service feared that Maine’s plan to dump the spoils at a special ocean dump site would destroy a “benthic community” — organisms on which fish and other sea animals feed. The Corps concluded that this possibility was not environmentally significant because the dredged material would" } ]

[ { "docid": "23546235", "title": "", "text": "decision about the Settlement is not clearly erroneous. d.The Experience and Views of Counsel The district court did not discuss whether counsel for Plaintiffs were experienced and competent; however, the record confirms that they were and no one asserts otherwise. e.The Reaction of the Class Members to the Proposed Settlement The reaction of the class members to the proposed settlement further supports the conclusion that the district court did not abuse. its discretion in finding that the Settlement was fair, adequate and reasonable. Only one of the 5,400 potential class members to whom notice of the proposed Settlement and Plan of Distribution was sent chose to opt-out of the class and Nadler represented only a handful of objectors at the fairness hearing. f Collusion Between the Parties Finally, the district court, found that there was no collusion between the Class Counsel and Defendants. While Nadler asserts that there was serious circumstantial evidence of collusion indicated by the parties’ vigorous opposition to his entry into the litigation, the district court found that the Plaintiffs had valid reasons for opposing his involvement. Specifically, Nadler did not file his action until after the effective date of the PSLRA and he arguably would have placed the class on a different statutory footing. Further, the district court noted that both the Plaintiffs and Defendants filed declarations stating that their dealings had been conducted on an adversarial, arms-length basis, and Na-dler’s suspicions were unfounded. The district court’s conclusions are not clearly erroneous. g. Conclusion The district court applied the proper legal standard in assessing the relevant factors and its findings of fact were not clearly erroneous. Therefore, we find that the district court did not err in approving the Settlement. B. The Plan Of DISTRIBUTION 1. Standard of Review The district court’s approval of an allocation plan for a settlement in a class action is reviewed for an abuse of discretion. In re Equity Funding Corp. of America Sec. Litig., 603 F.2d 1353, 1362 (9th Cir.1979). 2. Discussion The Plan of Distribution allocates the net Settlement according to the rescissory measure of damages. The rescissory measure" } ]

[ { "docid": "17662940", "title": "", "text": "objectors. Only a handful of managed care companies and a small number of self-funded third party payor plans, totaling fourteen third party payors, have opted out of United Wisconsin. Similarly, only seventeen have opted out of Arkansas Carpenters. See, e.g., 11/14/01 Affidavit of Bernard Persky 11 94. The fact that such an overwhelming majority of class members elected to stay in the class evidences a favorable reaction by the class to the settlement. And although several objections were filed by a relatively few members of the class, for the reasons discussed at length above they ultimately present no obstacle to final approval. Accordingly, this factor supports final approval of the settlements. (e) Opinion of Experienced Counsel Class counsel has substantial experience in litigating and resolving complex cases, including pharmaceutical overcharge antitrust matters on behalf of classes of sophisticated third party payors. See, e.g., 11/14/01 Affidavit of Richard W. Cohen 114. Given the arms-length negotiations conducted by counsel, counsel’s consultation with the plaintiffs’ retained expert, and their extensive discovery and investigation, the Court will credit counsel’s opinion that these settlements are fair, reasonable, and adequate. (2) Final Approval of the Allocation and Distribution Plan For the specific reasons discussed at length above respecting the Allocation and Distribution Plan in each case, see supra pp. 392-97, the Court finds the plans fair and reasonable and will approve them. (3) Final Approval of Attorneys’ Fees and Costs In United Wisconsin, Third Party Payor Lead Class Counsel specifically seek approval of the following: (1) a fifteen percent attorneys’ fee; (2) reimbursement of out-of-pocket litigation costs and expenses in the amount of $278,267.33; and (3) payment of an incentive award of $25,000 for each of the named plaintiffs. In Arkansas Carpenters, Third Party Payor Lead Class Counsel similarly seek: (1) a 22.5% fee; (2) reimbursement of $110,000 in costs; and (3) payment of an incentive award of $10,000 to each of the named plaintiffs in the Middle Tennessee and Cement Masons actions. The IRCs and UnitedHealth object to the fee petitions. Pooling together the fees sought here by United Wisconsin Third Party Payor Lead Class" }, { "docid": "18470249", "title": "", "text": "15 (3d Cir.1993). Thus, silence does.not necessarily constitute tacit consent. Notwithstanding the foregoing, the Court concludes that the reaction of the Class members is overwhelmingly in favor of the proposed settlement. Only 30 Class members have requested to be excluded from the Settlement Class out of the approximately 14,000 Class members given Notice of the proposed settlement. Furthermore, only one objection to the proposed settlement has been received by Class and Derivative Counsel. See Luevano, 93 F.R.D. at 91 (“The fact that only one sixth of one percent of the class has chosen to object to the settlement is important indication of its fairness and adequacy.”). Moreover, this objection came from a shareholder who “opted-out” of the Class and did not present its views at the fairness hearing. E. Class and Derivative Counsel Have an Adequate Appreciation of the Merits of the Case to Reach a Fair, Reasonable and Adequate Settlement. Another factor to be evaluated under “the Girsh test” is whether counsel had an adequate appreciation of the merits of the case before negotiating. Courts generally have found that counsel cannot appreciate the true value of a ease before discovery has been made. Without an appreciation of the true value of a ease, counsel cannot know if the settlement it reaches is fair. Under different circumstances, this factor would weigh against approval of the proposed settlement in this case. This ease has settled very early in the litigation process with little discovery. However, there are few, if any, disputed facts. The case turns on a determination of the authority held by the general partners and the rights held by the shareholders under the Partnership Agreement and the securities in question. A fair evaluation of the claims therefore may be made prior to discovery. This factor, while not supporting approval of the proposed settlement, does not weigh in favor of rejecting it either. F. The Court Will Not Consider the Risks of Establishing Liability and Damages in Evaluating the Fairness of the Proposed Settlement. The Court should measure the fairness of the proposed settlement in light of the risks in" }, { "docid": "5471127", "title": "", "text": "225 F.R.D. 436, 456 (S.D.N.Y.2004). In the Tyco Action, as in the three global settlements of the MDL Cases over which this Court has presided, the factors that weigh most heavily in favor of approval of the settlement are: the positive reaction of prospective class members to the proposed settlement; the great difficulty that the plaintiffs would confront in attempting to establish liability and damages; and the range of reasonableness of the litigation, in light of the attendant risks of pressing forward with this case. As noted, the reaction of the class has been overwhelmingly positive. Counsel received only twelve requests for exclusion and two objections, neither of them substantive, as discussed below, after more than 604,000 notices were sent to potential class members. “If only a small number of objections are received, that fact can be viewed as indicative of the adequacy of the settlement.” Wal-Mart, 396 F.3d at 118. Here, the relatively small number of objections and requests for exclusion militate in favor of approving the settlement as fair, adequate, and reasonable. See, e.g., D'Amato, 236 F.3d at 86 (approving settlement where eighteen objections were filed after notice was sent to 27,883 class members); McBean v. City of New York, 233 F.R.D. 377, 386 (S.D.N.Y.2006) (approving settlement where, after notice was sent to 40,352 class members, only four objected and 36 opted out of settlement); Hicks, 2005 WL 2757792, at *6, 2005 U.S. Dist. LEXIS 24890, at *16 (finding that reaction of class supported approval, where 123 class members out of approximately 100,000 requested exclusion and only three filed objections). The high risk of proceeding with this case and attempting to prove the defendants’ liability and establish damages weighs most heavily in favor of finding the settlement fair, adequate, and reasonable. Here, as in the MDL Cases, plaintiffs suffered in the district court dismissal with prejudice on loss causation grounds. While the parties awaited the scheduling of oral argument on plaintiffs’ pending appeal, the Second Circuit decided Lentell, 396 F.3d at 161, in which the Court of Appeals affirmed on loss-causation grounds Judge Pollack’s with-prejudice dismissal of the" }, { "docid": "12987956", "title": "", "text": "it would take approximately one year to prepare for trial. Given the length of time and the substantial expense required to resolve this matter through continued litigation, the Court finds that this factor favors approval of the Settlement Agreement. See In re Warfarin, 391 F.3d at 536 (upholding the district court’s finding that this factor favored settlement “because continuing litigation through trial would have required additional discovery, extensive pretrial motions addressing complex factual and legal questions, and ultimately a complicated, lengthy trial”). B. Class Reaction As of January 22, 2008, no objection has been filed by any class member. The sole response received was a request to opt out of the Settlement Agreement. Given the large number of Settlement Class members, this factor weighs in favor of approval. See, e.g., In re Linerboard, Antitrust Litig., 292 F.Supp.2d 631, 640 (E.D.Pa.2003) (“The attitude of class members toward the partial settlement of this action, as evidenced by the absence of objections, strongly militates a finding that the settlement is fair and reasonable.”); In re SmithKline Beckman Corp. Sec. Litig., 751 F.Supp. 525, 530 (E.D.Pa.1990) (“Both the utter absence of objections and the nominal number of shareholders who have exercised their right to opt out of this litigation militate strongly in favor of approval of the settlement.”). C. Stage of the Proceedings/Amount of Discovery Completed “The stage-of-proceedings facet of the Girsh test captures the degree of case development that class counsel have accomplished prior to settlement. Through this lens, courts can determine whether counsel had an adequate appreciation of the merits of the case before negotiating.” In re Gen. Motors Corp., 55 F.3d at 813. Plaintiffs have reviewed thousands of relevant documents, permitting them to estimate an accurate potential range of losses suffered by the Plans. Although discovery is not complete, Plaintiffs represent that key documents have been obtained, giving them the ability to weigh the strengths of their claims and of Defendants’ possible defenses. Given the amount of discovery completed, the Court finds that both parties had sufficient evidence to conduct meaningful, arms-length negotiations reflecting the relative strengths of the claims. See," }, { "docid": "17851140", "title": "", "text": "the 3,982,645 potential class members. Further, although 5 Class Members initially filed objections, they subsequently withdrew their objections and decided to opt-out of the Settlement. Accordingly, all of the objections have been withdrawn. Upon considering the high rate of Class Member claims and the relatively low number of requests for exclusion, the Court finds the reaction of the Class to the Settlement favors approval of the Settlement. 3. Conclusion Because the majority of the factors discussed above favor approving the Settlement, the Court finds that the settlement is “fair, adequate and reasonable” under Federal Rule of Civil Procedure 23(e). The Court therefore GRANTS Plaintiffs motion for final approval of this Settlement. B. Motion for Award of Attorneys’ Fees and Costs In her initial motion, Plaintiff requested an attorneys’ fees award of $2,118,750, or 25% of the common fund, and $25,000 in costs. During the fairness hearing, the Court raised some concerns about the amount of attorneys’ fees in light of the results achieved for Class Members and the relative burden of litigation on Class Counsel. In the supplemental briefing on the issue of attorneys’ fees, Class Counsel modified their request for attorneys’ fees and now seeks $1,432,275, or 16.9% of the common fund. 1. Relevant Law Rule 23(h) of the Federal Rules of Civil Procedure provides that, “[i]n a certified class action, the court may award reasonable attorney’s fees and nontaxable costs that are authorized by law or by the parties’ agreement.” Under Ninth Circuit precedent, a court has discretion to calculate and award attorneys’ fees using either the lodestar method or the percentage-of-the-fund method. Vizcaino v. Microsoft Corp., 290 F.3d 1043 (9th Cir.2002). Regardless of whether the Court uses the percentage approach or the lodestar method, the ultimate inquiry is whether the end result is reasonable. Powers v. Eichen, 229 F.3d 1249, 1258 (9th Cir.2000). The Ninth Circuit has identified a number of factors that may be relevant in determining if the award is reasonable: (1) the results achieved; (2) the risks of litigation; (3) the skill required and the quality of work; (4) the contingent nature of the" }, { "docid": "17851138", "title": "", "text": "Settlement Fund weighs in favor of approving the Settlement. (5) Whether the Class has been fairly and adequately represented during settlement negotiations “Great weight is accorded to the recommendation of counsel, who are most closely acquainted with the facts of the underlying litigation. This is because parties represented by competent counsel are better positioned than courts to produce a settlement that fairly reflects each party’s expected outcome in the litigation.” DIRECTV, Inc., 221 F.R.D. at 528; Adorna, 913 F.Supp.2d at 977. Class Counsel asserts that they are both familiar with the specific facts and issues arising in this case and also have considerable expertise in TCPA and class action litigation. For example, Mr. Kazerouni had litigated over 300 consumer class actions, and 50% of his class action practice involves litigating TCPA claims. See Kazerounian Decl., Doc. No. 63-2, ¶ 10. Additionally, Joshua B. Swigart and Todd Friedman also have significant experience in consumer class action litigation, including TCPA lawsuits. See Swigart Decl., Doc. No. 63-8, ¶¶ 8 — 9; Friedman Decl., Doc. No. 63-9, ¶¶ 9-10. It appears the Class was adequately repi-esented by competent counsel. This factor supports approval of the settlement. (6) The reaction of the Class to the proposed settlement The Ninth Circuit has held that the number of class members who object to a proposed settlement is a factor to be considered. Mandujano v. Basic Vegetable Prods. Inc., 541 F.2d 832, 837 (9th Cir.1976). The absence of a large number objectors supports the fairness, reasonableness, and adequacy of the settlement. See In re Austrian & German Bank Holocaust Litig., 80 F.Supp.2d 164, 175 (S.D.N.Y.2000) (“If only a small number of objections are received, that fact can be viewed as indicative of the adequacy of the settlement.”) (citations omitted); Boyd v. Bechtel Corp., 485 F.Supp. 610, 624 (N.D.Cal.1979) (finding “persuasive” the fact that 84% of the class has filed no opposition). As discussed above, there were 308,026 Class Members claims filed out of 3,982,-645 potential class members, resulting in a higher than average claims rate of 7.7%. The Claims Administrator received 168 requests for exclusion out of" }, { "docid": "23708986", "title": "", "text": "formula used in New York' — in large measure due to the participation of the Beckwith objectors in the settlement hearings. However, because the recalled dishwashers had depreciated in value through years of use and the class members had already received a rebate from GE as part of the recall program, the Churchill plaintiffs themselves conceded that recovering more than the settlement consideration at trial would be difficult. The distinct court’s assessment of the amount of the settlement was grounded on a.thorough consideration of the relevant data, and we conclude that the evidence amply justified the court’s determination that the settlement amount was fair. The experience and views of counsel. The district court was well-acquainted with the views of counsel for Churchill, Beck-with, and GE. In addition to the preliminary approval and fairness hearings, the district court considered Churchill’s memorandum in support of settlement approval and the Beckwith objectors’ two motions to intervene. At the fairness hearing, the court also noted and queried Churchill about correspondence from the Missouri and Kansas attorneys general that raised questions about the settlement’s adequacy. In sum, the record shows that the district court approved the settlement with a thorough consideration of not only the views of counsel for the settling plaintiffs and GE, but also the objections of opposing counsel. The reaction of class members to the proposed settlement. The district court was informed that only 45 of the approximately 90,000 notified class members objected to the settlement. And in considering the Beckwith objectors’ motions to intervene and arguments against the settlement at the two hearings, the court was obviously made aware of an array of objections to the settlement. Finally, because the class was certified under Fed.R.Civ.P. 23(b)(3), the district court also reviewed the ultimate list of 500 opt-outs prior to issuing the order finalizing the settlement. The record amply demonstrates that the district court weighed the reactions of members of the proposed settlement class. The possibility of collusion. Beckwith contends that the settlement was negotiated in bad faith, specifically claiming that the RICO claims were pleaded in an effort to contrive federal" }, { "docid": "17662939", "title": "", "text": "Status of Litigation at Time of Settlement The plaintiffs had sufficient information at the time they entered these settlement agreements. As discussed in significant detail above, class counsel conducted an extensive investigation from May 1999 to July 2000 relating to the claims and underlying events and transactions alleged in the complaints. During coordinated discovery, they reviewed hundreds of thousands of pages of party and non-party documents were reviewed, and in excess of seventy party and non-party depositions had been taken. They also consulted with experienced economics experts and ultimately retained John Pisar-kiewicz, Ph.D. in August 1999, whose reports have been filed with the Court, to advise them on matters of class injury and damages. (d) Reaction of Class Pursuant to the Court’s preliminary approval order, over 13,000 copies of the Notice of Settlement of Class Actions, Proof of Claim, and Notice of Exclusion were mailed directly to class members in both actions. Out of large and sophisticated classes in each action, three sets of objections have been filed on behalf of a total of thirteen objectors. Only a handful of managed care companies and a small number of self-funded third party payor plans, totaling fourteen third party payors, have opted out of United Wisconsin. Similarly, only seventeen have opted out of Arkansas Carpenters. See, e.g., 11/14/01 Affidavit of Bernard Persky 11 94. The fact that such an overwhelming majority of class members elected to stay in the class evidences a favorable reaction by the class to the settlement. And although several objections were filed by a relatively few members of the class, for the reasons discussed at length above they ultimately present no obstacle to final approval. Accordingly, this factor supports final approval of the settlements. (e) Opinion of Experienced Counsel Class counsel has substantial experience in litigating and resolving complex cases, including pharmaceutical overcharge antitrust matters on behalf of classes of sophisticated third party payors. See, e.g., 11/14/01 Affidavit of Richard W. Cohen 114. Given the arms-length negotiations conducted by counsel, counsel’s consultation with the plaintiffs’ retained expert, and their extensive discovery and investigation, the Court will credit counsel’s" }, { "docid": "20436378", "title": "", "text": "all the attendant risks of litigation. 495 F.2d at 463. Litigation through trial would be complex, expensive and long. Therefore, the first Grinnell factor weighs in favor of final approval. The class’s reaction to the settlement was positive. The Notices included an explanation of the allocation formula and an estimate of each Class Member’s award. The Rule 23 Notice also informed Rule 23 Class Members of their right to object to or exclude themselves from the Settlement and explained how to do so. No Class Member objected to the Settlement, and only eight of the 1,735 Rule 23 Class Members opted out. This favorable response demonstrates that the class approves of the Settlement and supports final approval. See Willix v. Healthfirst, Inc., No. 07 Civ. 1143, 2011 WL 754862, at *4 (E.D.N.Y. Feb. 18, 2011) (approving settlement where seven of 2,025 class member submitted timely objections and two requested exclusion); Khait v. Whirlpool Corp., No. 06 Civ. 6381, 2010 WL 2025106, at *5 (E.D.N.Y. Jan. 20, 2010) (the fact that no class members objected and two opted out demonstrated favorable response weighing in favor of final approval); Wright v. Stern, 553 F.Supp.2d 337, 344-45 (S.D.N.Y.2008) (“[t]he fact that the vast majority of class members neither objected nor opted out is a strong indication” of fairness). The Parties have completed enough discovery to recommend settlement. The pertinent question is “whether counsel had an adequate appreciation of the merits of the case before negotiating.” In re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 537 (3d Cir. 2004) (internal quotation marks omitted). Here, through an efficient, informal exchange of information, Plaintiffs obtained sufficient discovery to weigh the strengths and weaknesses of their claims and to accurately estimate the damages at issue. The Parties’ participation in a day-long mediation allowed them to further explore the claims and defenses. The third Grinnell factor weighs in favor of final approval. The risk of establishing liability and damages further weighs in favor of final approval. “Litigation inherently involves risks.” In re PaineWebber Ltd. P’ships Litig., 171 F.R.D. 104, 126 (S.D.N.Y.1997). Indeed, the primary purpose of settlement is" }, { "docid": "17278175", "title": "", "text": "length negotiations between counsel for plaintiffs and defendant, in which both consumer counsel and TPP counsel fully participated. The proposed settlement came after more than three years of litigation and discovery, including review of hundreds of thousands of documents produced by defendant, numerous depositions, and consultation with experts. Counsel also declare their experience in this type of complex class action litigation, including involvement in a similar prescription drug overcharge class action for which the district court recently approved settlement. See In re Lorazepam, supra. Finally, only a small fraction of the class objected to the settlement, as discussed more fully below. Accordingly, the court approaches the fairness determination with a presumption that the settlement is fair. B. Girsh Factors To determine whether the settlement is fair, reasonable, and adequate under Rule 23(e), the Third Circuit applies the nine-factor test set forth in Girsh v. Jepson, 521 F.2d 153 (3d Cir.1975). See also In re Cendant, 264 F.3d at 231. 1. Complexity, Expense and Likely Duration of Litigation “This factor captures ‘the probable costs, in both time and money, of continued litigation.’ ” In re Cendant, 264 F.3d at 233. Settlement is particularly favored in a complex class action such as this. Although significant discovery has already taken place, to continue this litigation through trial would require additional discovery, extensive pretrial motions addressing complex factual and legal questions, and a complicated, lengthy trial. The costs would significantly increase the substantial costs already incurred. In addition, any judgment would likely be the subject of posttrial motions and appeals, further prolonging the litigation and reducing the value of any recovery to the class. In sum, this factor strongly supports settlement. 2. Class Reaction “This factor attempts to gauge whether members of the class support the settlement,” although the court needs to be careful not to infer too much from a small number of objectors to a sophisticated settlement. In re Prudential, 148 F.3d at 318. After an extensive nationwide notice program, very few class members filed objections to the proposed settlement: eleven from consumers or consumer groups and two from TPPs. In addition," }, { "docid": "9620264", "title": "", "text": "the proposed settlement, while not conclusive, is entitled to great deal of weight. Williams v. Vukovich, 720 F.2d 909, 922-23 (6th Cir.1983); Cotton v. Hinton, 559 F.2d 1326, 1330 (5th Cir.1977). Both Parties’ negotiation and adoption of the settlement terms, based on their familiarity with the law in this practice area and the strengths and weaknesses of their respective positions, suggests the reasonableness of the settlement. This factor clearly favors settlement. G. Involvement of a Government Entity There are no government participants in this case. Thus, this factor is inapplicable. H. Class Members’ Reaction to the Proposed Settlement Pursuant to the Court’s Order, Notice of Pendency of Class Action was sent to over 41,000 Class Members, published in Investor’s Business Daily, and posted on the internet. The Notice called for all objections to be postmarked and mailed no later than May 7, 2007. To date, no objections to the settlement have been filed. (See Mot. Final Approval of Settlement at 2.) I. The Settlement Did Not Involve Collusion or Fraud Here, Plaintiffs contend that the settlement is the product of arm’s length negotiations and hard-fought litigation by experienced counsel on both sides of the case. Additionally, settlement mediation sessions took place before the Honorable Daniel L. Weinstein (Ret.) and the Honorable Howard B. Wiener (Ret.). There is nothing to suggest that the settlement involved collusion or fraud. Accordingly, the Court APPROVES the settlement agreement and the plan of allocation. Additionally, the Court APPROVES of Mr. Carroll’s requested reimbursement. III. Attorneys’Fees Class counsel has requested that the Court approve a fee of 25% of the settlement award, ie., $2,500,000, plus a reimbursement of “out-of-pocket” expenses of $261,971,79. (See Mot. for Approval of Fees at 1.) Counsel argues that the fee is appropriate based on the complexity of litigation, the favorable result achieved, the normal fees for similar complex cases, the contingency fee nature of the representation, and the lack of objection to the proposed fees. While the Parties appear to have agreed to the attorneys’ fee award, “the district court [has] the authority and duty to pass upon the fairness of" }, { "docid": "21798170", "title": "", "text": "because it did not indicate that court documents from this or other cases could be obtained via PACER. ECF No. 159 at 7-8. Although this district’s guidelines indicate that reference to PACER should be included in class action settlement notices, the Court does not find this omission to render the class notice inadequate. See United States District Court, Northern District of California, Procedural Guidance for Class Action Settlements, https://cand. uscourts.gov/ClassActionSettlement Guidance (last visited Dec. 15, 2017). Moreover, as the Court confirmed with the objector at the hearing, her primary objection is that she believed the settlement should also have included the 2016 Amendment. Three remaining objections express dissatisfaction with the amount of the settlement, claiming that class members are receiving too little of the amounts to which they believe they are entitled. ECF Nos. 136, 140, 155. The final objection states an intent to “appeal the amount the lawyers will receive” and “appeal on the benefits [of] settlement,” which the Court construes as an objection to the amount of the settlement. ECF No. 172 at 1. The Court acknowledges these objectors’ frustrations but, as discussed above, nonetheless finds the settlement amount to be reasonable given the risks and delay of further litigation. On balance, the Court concludes that the reaction of the class weighs in favor of approval. See, e.g., Churchill Vill., 361 F.3d at 577 (holding that approval of a settlement that received 45 objections (.05%) and 500 opt-outs (.56%) out of 90,000 class members was proper). After reviewing all of the required factors, the Court finds the settlement fair, reasonable, and adequate, and grants Plaintiffs’ motion for final approval of the settlement. III. ATTORNEYS’ FEES AND COSTS Class counsel seek attorneys’ fees both under the ERISA fee-shifting statute, 29 U.S.C. § 1132(g)(1), and as a percentage of the common fund in this case. They do not seek double recovery, and they acknowledge that any statutory fee award paid by Defendants (or the Fund’s insurance policy) “shall constitute a credit to any amount awarded to Class Counsel from the Settlement Fund as a percentage of the common fund.” ECF" }, { "docid": "14248412", "title": "", "text": "that the overwhelming majority of the class willingly approved the offer and stayed in the class presents at least some objective positive commentary as to its fairness”). Here, of over 1,188,000 potential Class Members, only 97 have opted out. In addition, only three objections were filed (including one that was not timely), translating into an objection rate of 0.00025%. These statistics indicate a favorable reaction by class members and their overall satisfaction with the Settlement. See Custom LED, 2013WL 6114379, at *9 (granting final approval and characterizing 0.04% exclusion rate, with one objection, as “overwhelmingly positive” reaction); Chun-Hoon v. McKee Foods Corp., 716 F.Supp.2d 848, 852 (N.D.Cal.2010) (explaining that 4.86% opt-out rate strongly supported approval). ix. Risk of Collusion among the Negotiating Parties In addition to examining the eight Churchill factors, when a settlement is reached pri- or to formal class certification the Court must ensure that the settlement is not the product of collusion. See In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 946-47. Collusion may not be evident on its face, thus the Ninth Circuit has provided examples of subtle signs of collusion including: (1) “when counsel receive a disproportionate distribution of the settlement;” (2) “when the parties negotiate a ‘clear sailing’ arrangement providing for the payment of attorneys’ fees separate and apart from class funds;” and (3) “when the parties arrange for fees not awarded to revert to defendants rather than be added to the class fund.” Id. at 947. Here, Plaintiffs’ counsel is seeking for only the “benchmark” 25% fee, which is a lodestar multiplier of less than two. See Dkt. No. 134 at 2. There are no coupons or “soft” values to the settlement amount upon which Plaintiffs’ counsel predicates its fee request. See Dkt. No. 134 at 9. Each settlement class member will automatically receive an account credit or a cheek. See id. Moreover, it is not possible for class counsel or the class representatives to receive any special benefit in the settlement, because them awards are not conditions of the settlement, and any reduction in the awards serves only to increase" }, { "docid": "17742232", "title": "", "text": "trial would have been significant. In re Warfarin Sodium Antitrust Litig., 391 F.3d at 536. The Court concludes that this factor counsels in favor of approving the Settlement. b. The Reaction of the Class to the Settlement The Court must next consider the reaction of the Class to the Settlement Agreement. Notice was sent to 2,572,342 current and former Health Net subscribers, and as noted above, Class Counsel has received 601 opt-outs in addition to the 1,107 timely opt outs received following certification and notice in McCoy and Wachtel. These 1,708 individuals represent approximately 0.066% of the total class. Class Counsel has received only nine objections. In a class of this size, this can only be considered an overwhelmingly favorable response. Cf. Stoetzner v. U.S. Steel Corp., 897 F.2d 115, 118-19 (3d Cir.1990) (holding that “only” 29 objections in 281 member class “strongly favors settlement”); see also In re Prudential, 148 F.3d at 318 (affirming conclusion that class reaction was favorable where 19,000 policyholders out of 8 million opted out and 300 objected). “Such acceptance of the Settlement on the part of the Class is convincing evidence of the Settlement’s fairness and adequacy.” In re Remeron Direct, 2005 WL 3008808, at *6. c. The Stage of Proceedings and Amount of Discovery Completed The Court must next consider the stage of the proceedings and the amount of discovery completed to date. The Third Circuit has explained that this factor is intended to ensure “that a proposed settlement is the product of informed negotiations” and that “[t]he parties ... have an ‘adequate appreciation of the merits of the case before negotiating.’ ” In re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions, 148 F.3d 283, 319 (3d Cir.1998). The procedural history reflected in the 115 page docket sheet of this litigation counsels in favor of the Settlement. The parties engaged in five years of hard-fought discovery, during which time Defendants were sanctioned for discovery violations more than once. The parties made 141 motions, most of which were related to the contentious discovery process. “Given this vast amount of discovery obtained, and" }, { "docid": "23708987", "title": "", "text": "questions about the settlement’s adequacy. In sum, the record shows that the district court approved the settlement with a thorough consideration of not only the views of counsel for the settling plaintiffs and GE, but also the objections of opposing counsel. The reaction of class members to the proposed settlement. The district court was informed that only 45 of the approximately 90,000 notified class members objected to the settlement. And in considering the Beckwith objectors’ motions to intervene and arguments against the settlement at the two hearings, the court was obviously made aware of an array of objections to the settlement. Finally, because the class was certified under Fed.R.Civ.P. 23(b)(3), the district court also reviewed the ultimate list of 500 opt-outs prior to issuing the order finalizing the settlement. The record amply demonstrates that the district court weighed the reactions of members of the proposed settlement class. The possibility of collusion. Beckwith contends that the settlement was negotiated in bad faith, specifically claiming that the RICO claims were pleaded in an effort to contrive federal jurisdiction to permit a settlement to go forward. The objectors raised this same allegation of collusion before the district court, which rejected the suggestion of collusion at the settlement approval hearing. Beckwith presents no real evidence of collusion, and we note that the ostensibly collusive RICO claims were first aired in the Lazar complaint in May 2000 — a year before settlement negotiations began. We therefore conclude that the district court’s finding was not clearly erroneous. See In re Pac. Enters., 47 F.3d at 377 (district court findings of fact reviewed for clear error). Because the record reveals that the district court considered the relevant factors and provided a reasoned response to settlement objections, we conclude that the district court did not abuse its discretion in approving the settlement. VI Florida Counsel contend in their appeal that they were improperly denied attorneys’ fees. A In between the filing of Churchill in November 1999 and Lazar in May 2000, Florida Counsel filed two lawsuits of their own. The first, filed in Florida state court on December" }, { "docid": "419363", "title": "", "text": "made informed decisions, which lead to resolution of the matter with the assistance of a mediator. Consequently, this factor supports preliminary approval of the Settlement. F. Experience and Views of Counsel As addressed above, Plaintiffs counsel are experienced in class action litigation. The Class Counsel “believe[] the instant settlement is in the best interests of the Class Members.” (Doc. 43 at 24.) Further, Defendant “determined that it is desirable and beneficial to it that the Action be settled in the manner and upon the terms and conditions set forth in [the Settlement].” (Doc. 26 at 25, Settlement ¶ 24.) These recommendations of counsel are entitled to significant weight and support approval of the settlement agreement. See Nat’l Rural Tele-comms., 221 F.R.D. at 528 (“Great weight is accorded to the recommendation of counsel, who are most closely acquainted with the facts of the underlying litigation”). G. Reaction of Class Members to Settlement Significantly, no objections were filed by Class Members following service of the Class Notice Packet. In addition, Plaintiff agreed to the terms of the Settlement, and did not have any objections to the terms. (See Doc. 26 at 46.) “[T]he absence of a large number of objections to a proposed class action settlement raises a strong presumption that the terms of a proposed class action settlement are favorable to the class members.” Nat’l Rural Telecomms., 221 F.R.D. at 529. Therefore, this factor weighs in favor of the Settlement. H. Collusion between Negotiating Parties The inquiry of collusion addresses the possibility that the settlement agreement is the result of either “overt misconduct by the negotiators” or improper incentives of class members at the expense of others. Staton, 327 F.3d at 960. The parties utilized an impartial mediator, and settlement negotiations took several weeks to complete. (See Doc. 35 at 11-12; Doc. 43 at 25.) Given the duration of the negotiations, it appears the agreement is the product of non-collusive conduct. IV. Conclusion The factors set forth by the Ninth Circuit weigh in favor of final approval of the Settlement, which appears to be is fair, reasonable, and adequate as required" }, { "docid": "21798171", "title": "", "text": "1. The Court acknowledges these objectors’ frustrations but, as discussed above, nonetheless finds the settlement amount to be reasonable given the risks and delay of further litigation. On balance, the Court concludes that the reaction of the class weighs in favor of approval. See, e.g., Churchill Vill., 361 F.3d at 577 (holding that approval of a settlement that received 45 objections (.05%) and 500 opt-outs (.56%) out of 90,000 class members was proper). After reviewing all of the required factors, the Court finds the settlement fair, reasonable, and adequate, and grants Plaintiffs’ motion for final approval of the settlement. III. ATTORNEYS’ FEES AND COSTS Class counsel seek attorneys’ fees both under the ERISA fee-shifting statute, 29 U.S.C. § 1132(g)(1), and as a percentage of the common fund in this case. They do not seek double recovery, and they acknowledge that any statutory fee award paid by Defendants (or the Fund’s insurance policy) “shall constitute a credit to any amount awarded to Class Counsel from the Settlement Fund as a percentage of the common fund.” ECF No. 134 at 11. Relying on out-of-circuit precedent, Defendants argue that a common fund fee award is unavailable where, as here, the Court awards statutory fees. ECF No. 144 at 25-27 (citing Haggart v. Woodley, 809 F.3d 1336 (Fed. Cir. 2016); Pierce v. Visteon Corp., 791 F.3d 782 (7th Cir. 2015); Brytus v. Spang & Co., 203 F.3d 238 (3d Cir. 2000)). However, Defendants also recognize that the Ninth Circuit has not so held. Id. at 25. To the contrary, the Ninth Circuit has held that, “unléss Congress has forbidden the application of the common fund doctrine in cases in which attorneys could potentially recover fees under the type of fee-shifting statutes at issue here, the courts retain their equitable power to award common fund attorneys’ fees.” Staton v. Boeing Co., 327 F.3d 938, 968 (9th Cir. 2003). “[T]here is no preclusion bn recovery of common fund fees where a fee-shifting statute applies,” id., and “common fund fees can be awarded where statutory fees are available,” id. at. 967. See also In re Bluetooth Headset" }, { "docid": "17851139", "title": "", "text": "9-10. It appears the Class was adequately repi-esented by competent counsel. This factor supports approval of the settlement. (6) The reaction of the Class to the proposed settlement The Ninth Circuit has held that the number of class members who object to a proposed settlement is a factor to be considered. Mandujano v. Basic Vegetable Prods. Inc., 541 F.2d 832, 837 (9th Cir.1976). The absence of a large number objectors supports the fairness, reasonableness, and adequacy of the settlement. See In re Austrian & German Bank Holocaust Litig., 80 F.Supp.2d 164, 175 (S.D.N.Y.2000) (“If only a small number of objections are received, that fact can be viewed as indicative of the adequacy of the settlement.”) (citations omitted); Boyd v. Bechtel Corp., 485 F.Supp. 610, 624 (N.D.Cal.1979) (finding “persuasive” the fact that 84% of the class has filed no opposition). As discussed above, there were 308,026 Class Members claims filed out of 3,982,-645 potential class members, resulting in a higher than average claims rate of 7.7%. The Claims Administrator received 168 requests for exclusion out of the 3,982,645 potential class members. Further, although 5 Class Members initially filed objections, they subsequently withdrew their objections and decided to opt-out of the Settlement. Accordingly, all of the objections have been withdrawn. Upon considering the high rate of Class Member claims and the relatively low number of requests for exclusion, the Court finds the reaction of the Class to the Settlement favors approval of the Settlement. 3. Conclusion Because the majority of the factors discussed above favor approving the Settlement, the Court finds that the settlement is “fair, adequate and reasonable” under Federal Rule of Civil Procedure 23(e). The Court therefore GRANTS Plaintiffs motion for final approval of this Settlement. B. Motion for Award of Attorneys’ Fees and Costs In her initial motion, Plaintiff requested an attorneys’ fees award of $2,118,750, or 25% of the common fund, and $25,000 in costs. During the fairness hearing, the Court raised some concerns about the amount of attorneys’ fees in light of the results achieved for Class Members and the relative burden of litigation on Class Counsel." }, { "docid": "5098565", "title": "", "text": "assist them in the review and analysis of information obtained through discovery.” (Pis.’ Mem. at 14.) The Court concludes discovery has been sufficient to permit the parties to enter into a well-informed settlement, and this factor weighs in favor of approval. 6. The Experience and Views of Counsel As explained above, class counsel have demonstrated experience with class action and complex litigation. Class counsel have indicated that they support the proposed settlement, as “based on the strengths and weaknesses of the case and the uncertainties inherent in further litigation, the settlement is fair, reasonable and adequate.” (Cuneo & Chimicles Decl. ¶ 3.) This factor thus weighs in favor of approval. 7. The Reaction of the Class members to the Proposed Settlement The Court has the benefit of the views of numerous class members here: objectors, class members who opted out, and other class members who submitted communications to class counsel or the Settlement Administrator. The Court summarizes these varied views before discussing whether the reaction of class members as a whole weighs in favor of settlement. (a) The Views of the Objectors As noted above, sixteen class members, including the State of Texas, have “objected” to the settlement. The Court has also received an amicus brief filed on behalf of 26 state officials opposing the settlement as insufficiently beneficial to class members. The Court addresses the views of the various states and state officials separately below. “In an effort to measure the class’s own reaction to the settlement’s terms directly, courts look to the number and vociferousness of the objectors.” In re GMC Pick-Up Litig., 55 F.3d at 812. See also Pallas v. Pacific Bell, No. C-89-2373 DLJ, 1999 WL 1209495, at *6 (N.D.Cal. July 13, 1999) (“The greater the number of objectors, the heavier the burden on the proponents of settlement to prove fairness.”). “However, a combination of observations about the practical realities of class actions has led a number of courts to be considerably more cautious about inferring support from a small number of objectors to a sophisticated settlement.” In re GMC Pick-Up Litig., 55 F.3d at 812," }, { "docid": "14248411", "title": "", "text": "this factor favors approval of settlement. vii. The Presence of a Governmental Participant The Class Action Fairness Act, or “CAFA,” requires that notice of a settlement be given to state and federal officials and provides those officials a window of time to comment. 28 U.S.C. § 1715(b). “Although CAFA does not create an affirmative duty for either state or federal officials to take any action in response to a class action settlement, CAFA presumes that, once put on notice, state or federal officials will raise any concerns that they may have during the normal course of the class action settlement proeedui’es.” Gamer, 2010 WL 1687832, at *14. Here, no state Attorney Genei’al has responded to the CAFA notice, indicating that such officials either do not object to the Settlement. See Dkt. No. 140 at 17-18. Thus, this factor favors the settlement. viii. The Reaction of Class Members A low number of opt-outs and objections in comparison to class size is typically a factor that supports settlement approval. See Hanlon, 150 F.3d at 1027 (“[T]he fact that the overwhelming majority of the class willingly approved the offer and stayed in the class presents at least some objective positive commentary as to its fairness”). Here, of over 1,188,000 potential Class Members, only 97 have opted out. In addition, only three objections were filed (including one that was not timely), translating into an objection rate of 0.00025%. These statistics indicate a favorable reaction by class members and their overall satisfaction with the Settlement. See Custom LED, 2013WL 6114379, at *9 (granting final approval and characterizing 0.04% exclusion rate, with one objection, as “overwhelmingly positive” reaction); Chun-Hoon v. McKee Foods Corp., 716 F.Supp.2d 848, 852 (N.D.Cal.2010) (explaining that 4.86% opt-out rate strongly supported approval). ix. Risk of Collusion among the Negotiating Parties In addition to examining the eight Churchill factors, when a settlement is reached pri- or to formal class certification the Court must ensure that the settlement is not the product of collusion. See In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 946-47. Collusion may not be evident on its face," } ]

[ { "docid": "22236729", "title": "", "text": "away with the jury altogether (Chicago, Rock Island & Pacific Ry. Co. v. Cole, 251 U. S. 54, 56), but in view of its nature and effect, the rule cannot be regarded as one that relates merely to practice or to a “ form ” or “ mode of proceeding.” The provision “ cuts deep into the right, observed at common law, by which a defendant can obtain a decision by the court, upon a proven state of facts.” Atchison, Topeka & Santa Fé Ry. Co. v. Spencer, 20 F. (2d) 714, 716. Even with respect to the burden of proof -as to contributory negligence, this Court has said: “But it is a misnomer to say that the question as to the burden of proof as to contributory negligence is a mere matter of state procedure. For, in Vermont, and in a few other States, proof of plaintiff's freedom from fault is a part of the very substance of his case. . . . But the United States courts have uniformly held that as a matter of general law, the burden of proving contributory negligence is on the defendant. The Federal courts have enforced that principle, even in trials, in States which hold that the burden is on the plaintiff.” Central Vermont Ry. Co. v. White, 238 U. S. 507, 512. See, also, Beutler v. Grand Trunk Junction Ry. Co., 224 U. S. 85, 88. Nor is the provision applicable, which the appellant invokes, that “ the laws of the several States, except where the Constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply.” U. S. C. Tit. 28, § 725. The controlling principle governing the decision of the present question is that state laws cannot alter the essential character or function of a federal court. The function of the trial judge in a federal court is not in any sense a local matter, and state statutes which would interfere with the appropriate" } ]

[ { "docid": "22109299", "title": "", "text": "294-295, 42 S.Ct. 477, 66 L.Ed. 943; Schwartzman v. Southern Air Lines, D.C.Neb., 6 F.R.D. 517; U. S. v. Fritz Properties, D.C.Cal., 89 F.Supp. 772, 777-778 ; Bamhard, Primary Jurisdiction and Administrative Remedies, 30 Georgetown L.Rev. (1942) 545, criticizing Adler v. Chicago & Southern Air Lines, Inc., D.C.E.D.Mo., 41 F.Supp. 360. . See C. A. B. v. Modern Air Transport, 2 Cir., 179 F.2d 622 at page 625. . Judge Learned Hand in Procter & Gamble Distributing Co. v. Sherman, D.C.S.D.N.Y., 2 F.2d 165, 167. . See, e. g., Lovell v. City of Griffin, 303 U.S. 444, 452-453, 58 S.Ct. 666, 82 L.Ed. 949; Smith v. Cahoon, 283 U.S. 553, 562, 51 S.Ct. 582, 75 L.Ed. 1264; Montana Nat. Bank of Billings v. Yellowstone County, 276 U.S. 499, 505, 48 S.Ct. 331, 72 L.Ed. 673. . See, e.g., St. Johns N. F. Shipping Corp. v. S. A. Companhia Geral etc., 263 U.S. 119, 44 S.Ct. 30, 68 L.Ed. 201; Express Company v. Kountze Brothers, 8 Wall. 342, 352-353, 19 L.Ed. 457; Swift & Co. v. Furness, Withy & Co., D.C., 87 F. 345; Smith v. United States Shipping Board Emergency Fleet Corp., 2 Cir., 26 F.2d 337, 338-339, see further federal cases in next footnote; McKahan v. American Express Co., 209 Mass. 270, 95 N.E. 785, 35 L.R.A.,N.S., 1046; Saxon Mills v. New York, N. H. & H. R. Co., 214 Mass. 383, 101 N.E. 1075; Ward v. Gulf, M. & N. R. Co., 23 Tenn.App. 533, 134 S.W.2d 917, 921-922; O. K. Transfer & Storage Co. v. Neill, 59 Okl. 291, 159 P. 272, 274, L.R.A.1917A, 58; Benoit v. Central Vermont Ry., 116 Vt. 266, 73 A. 2d 321; Reynolds v. Adams Express Co., 172 N.C. 487, 90 S.E. 510, 511-512; Texas & P. Ry. Co. v. Eastin & Knox, 100 Tex. 556, 102 S.W. 105; Internationale Guano en Superpliosphaat-Werken v. Robert Macandrew & Co. [1909], 2 K.B. 360; Joseph Thorley, Limited v. Orchis Steamship Company Limited [1907], 1 K.B. 660. See annotations in 35 L.R.A., N.S., 1046. . See, e.g., Calderon v. Atlas Steamship Co., D.C., 64 F." }, { "docid": "23245344", "title": "", "text": "a bill to remove a cloud on title to Texas land, must, under Erie Railroad Co. v. Tompkins, supra, apply the established Texas rule that on an issue of bona fide purchase for value without notice, the burden of proof is upon him who attacks the legal title and asserts a superior equity. Cities Service Oil Co. v. Dunlap, 308 U.S. 208, 60 S.Ct. 201, 203, 84 L.Ed. — - (December 4, 1939). In a brief opinion the court makes the point that the local rule “relates to a substantial right upon which the holder of recorded legal title to Texas land may confidently rely. * * * This was a valuable assurance in favor of its title.” While it is not believed that this holding is necessarily conclusive of the question now before us, the fact that the court cited as authority Central Vermont Railway v. White, 238 U.S. 507, 512, 35 S.Ct. 865, 59 L.Ed. 1433, Ann.Cas.1916B, 252, a case relating to contributory negligence, strengthens our conclusion that the state rule as to burden of proof on the issue of contributory negligence should be followed in the federal court in diversity of citizenship cases. Thus far, the case has been discussed as though suit had been brought in the federal court sitting in tlie state where the alleged tort occurred. But there is the complicating factor that the accident occurred in Maine and suit was brought in Massachusetts. This makes it necessary to consider three further points: First, if the plaintiff had sued in a Massachusetts state court, would the Massachusetts Supreme Judicial Court have allowed the application of the Maine rule as to burden of proof? The answer is, no. The Court would have said that burden of proof is a matter of procedure only, and would have applied the Massachusetts rule that the burden is on the defendant to establish the plaintiff’s contributory negligence. Such was the holding in Levy v. Steiger, 233 Mass. 600, 124 N.E. 477, and Smith v. Brown, Mass., 19 N.E.2d 732. Second, would such a decision by the Supreme Judicial Court" }, { "docid": "23245334", "title": "", "text": "under the Conformity Act, R.S. § 914, 28 U.S.C.A. § 724, by saying that burden of proof was not a mere matter of procedure but concerned substantive rights, as to which the federal courts on a matter of “general law” were free to take their own view. See Herron v. Southern Pacific Co., 283 U.S. 91, 93, 94, 51 S.Ct. 383, 75 L.Ed. 857. The question of classification also arose where suit was brought in one state on an alleged tort committed in another state. But here it was generally held, in the state courts at least, that burden of proof as to contributory negligence was a matter of procedure ; hence the rale of the forum would be applied despite a contrary rule of the locus delicti. Levy v. Steiger, 233 Mass. 600, 124 N.E. 477; Smith v. Brown, Mass., 19 N.E.2d 732; Chicago Terminal R. R. v. Vandenberg, 164 Ind. 470, 73 N.E. 990; Rastede v. Chicago, St. P., M. & O. Railway, 203 Iowa 430, 431, 437, 212 N.W. 751; Jenkins v. Railway, 124 Minn. 368, 373, 145 N.W. 40; Menard v. Goltra, 328 Mo. 368, 40 S.W.2d 1053. See Helton v. Alabama Midland, 97 Ala. 275, 12 So. 276; St. Louis & S. F. R. Co. v. Coy, 113 Ark. 265, 168 S.W. 1106; Prinn v. De Rice, 1930, 129 Me. 479, 149 A. 580; Pennsylvania Co. v. McCann, 54 Ohio St. 10, 42 N.E. 768, 31 L.R.A. 651, 56 Am.St.Rep. 695. Contra: Olson v. Omaha & C. B. S. Railway Co., 131 Neb. 94, 267 N.W. 246; Precourt v. Driscoll, 85 N.H. 280, 157 A. 525, 78 A.L.R. 874. Cf. Lykes Bros. SS. Co. v. Esteves, 5 Cir., 89 F.2d 528; Dela ware & Hudson Co. v. Nahas, 3 Cir., 14 F.2d 56. In these two groups of cases the courts were talking about the same thing and labelling it differently, but in each instance. the result was the same; the court was choosing the appropriate classification to enable it to apply its own familiar rule. In another and quite-different setting the question of classification" }, { "docid": "23245332", "title": "", "text": "do, but upon the contrary charged, in accordance with the Maine law, that the burden was upon the plaintiff to show affirmatively that no want of ordinary care on his part contributed to cause his injuries. The sole question raised is as to the correctness of this charge, and refusal to charge as requested. Inquiry must first be directed to whether a federal court, in diversity of citizenship cases, must follow the applicable state rule as to incidence of burden of proof. If the answer is in the affirmative, the further point to be considered is whether the applicable state rule here is that of Massachusetts, where the action was brought, or Maine, where the accident occurred. It would be an over-simplification to say that the case turns on whether burden of proof is a matter of substance or procedure. These are not clean-cut categories. During the reign of Swift v. Tyson, 1842, 16 Pet. 1, 10 L.Ed. 865, the 'federal courts in diversity of citizenship cases consistently held that the defendant had the burden of proving, the plaintiff’s contributory negligence, even though the suit arose in a state whose local rule was the contrary. Pokora v. Wabash Railway Co., 292 U.S. 98, 100, 54 S.Ct. 580, 78 L.Ed. 1149; Miller v. Union Pacific, 290 U.S. 227, 232, 233, 54 S.Ct. 172, 78 L.Ed. 285; Hemingway v. Illinois Central Railroad Co., 5 Cir., 114 F. 843, 846; Armour & Co. v. Carlas, 2 Cir., 142 F. 721, 722; New Ætna Portland Cement Co. v. Hatt, 6 Cir., 231 F. 611, 615-16; Harmon v. Barber, 6 Cir., 247 F. 1, 6; Bauman v. Black & White Town Taxis Co., 2 Cir., 263 F. 554; Maher v. Chicago, M. & St. P. Rail way Co., 7 Cir., 278 F. 431, 434; Cook Paint & Varnish Co. v. Hickling, 8 Cir., 76 F.2d 718, 721. See Central Vermont Railroad Co. v. White, 238 U.S. 507, 512, 35 S.Ct. 865, 59 L.Ed. 1433, Ann.Cas.1916B, 252; First National Bank v. Liewer, 8 Cir., 187 F. 16, 18. They avoided having to apply the local rule" }, { "docid": "22148091", "title": "", "text": "the appellant. Reversed and remanded. The briefs of the parties agree that tho enemy was Japan. Central Vermont Ry. v. White, 238 U. S. 507, 35 S.Ct. 865, 59 L.Ed. 1433, Ann. Cas.1916B, 252; Atlantic Coast Line R. v. Burnette, 239 U.S. 199, 36 S.Ct. 75, 60 L.Ed. 226; Phillips Co. v. Grand Trunk Ry., 236 U.S. 662, 35 S.Ct. 444, 59 L.Ed. 774; Carpenter v. Erie Ry., 3 Cir., 132 F.2d 362; Pollen v. Ford Instrument Co., 2 Cir., 108 F.2d 762; Bell v. Wabash R. Co., 8 Cir., 58 F.2d 569. Engel v. Davenport, 271 U.S. 33, 46 S.Ct. 410, 70 L.Ed. 813; Bogdanovich v. Gasper, D.C.S.D.Cal., 41 F.Supp. 457; Oliver v. Calmar S. S. Co., D.C.E.D.Pa., 33 F.Supp. 356. Engel v. Davenport, supra; Central Vermont Ry. v. White, supra. Taylor v. Southern R. Co., D.C.E.D. Ill., 6 F.Supp. 259; Wahlgren v. Standard Oil Co., D.C.S.D.N.Y., 42 F.Supp. 992; Oliver v. Calmar S. S. Co., supra. Atlantic Coast Line R. v. Burnette, supra. Cf. Braun v. Sauerwein, 77 U.S. 218, 223, 19 L.Ed. 895. The Protector, 76 U.S. 687, 19 L.Ed. 812; Braun v. Sauerwein, 77 U.S. 218, 19 L.Ed. 895; Levy v. Stewart, 78 U.S. 244, 20 L.Ed. 86; United States v. Wiley, 78 U.S. 508, 20 L.Ed. 211; Caperton v. Bowyer, 81 U.S. 216, 20 L.Ed. 882; Adger v. Alston, 82 U.S. 555, 21 L.Ed. 234; Ross, Adm’r v. Jones, 89 U.S. 576, 22 L.Ed. 730; Brown v. Hiatts, 82 U.S. 177, 21 L.Ed. 128; First National Bank of Pittsburgh v. Anglo-Oesterreichische Bank, 3 Cir., 37 F.2d 564; Borovitz v. American Hard Rubber Co., D.C.N.D. Ohio, 287 F. 368; cf. Commissioner v. Wilson, 10 Cir., 60 F.2d 501, 504; Ex parte Colonna, 314 U.S. 510, 62 S.Ct. 373, 86 L.Ed. 379. Brown v. Hiatts, supra; Borovitz v. American Hard Rubber Co., supra; First National Bank of Pittsburgh v. AngloOesterreichische Bank, supra. Borovitz v. American Hard Rubber Co., supra. Inland Steel Co. v. Jelenovic, 84 Ind. App. 373, 150 N.E. 391; Industrial Commission of Ohio v. Rotar, 124 Ohio St. 418, 179 N.E. 135; Kolundjija v. Hanna" }, { "docid": "23245358", "title": "", "text": "of Laws, § 595, Comment a, it is first stated that the law of the forum governs matters relating to burden of proof. It is then stated that if by the lex loci delicti tho requirement that plaintiff must prove himself free from fault is “interpreted as a condition of the cause of action itself”, then the forum will apply the foreign rule. But to say it is a condition of the eanse of action seems to be merely another way of saying that the plaintiff has the burden of proof; for if this burden is upon tho plaintiff, his recovery is necessarily conditioned upon his convincing tho jury of his freedom from contributory fault. Tho Olson ease, cited in the text, relies upon this section of the Restatement for its authority. In Precourt v. Driscoll, supra, also cited in tho text, the New Hampshire court is affected by the same curious form of statement, which apparently was derived originally from Central Vermont Railway v. White, 238 U.S. 507, 512, 35 S.Ct. 865, 59 L.Ed. 3433, Ann.Cas.1916B, 252. A similar verbal twist could be used to show that a rule putting the burden on tho defendant is a matter of substance. It can be said that where a defendant has negligently caused harm, the requirement that he must affirmatively establish the plaintiff’s contributory negligence is a “condition” of his defense. But putting it this way really proves nothing. If by the lex loci, contributory negligence is not a complete defense but goes only in mitigation of damages, this is clearly a matter of substance as to which the forum would follow the foreign rule. Fitzpatrick v. International Ry. Co., 252 N.Y. 127, 169 N.E. 112, 68 A.L.R. 801; Caine v. St. Louis & S. F. Ry., 1923, 209 Ala. 181, 95 So. 876, 32 A.L.R. 793. So, if by the lex loci, contributory negligence is no defense where defendant had a “last clear chance”, this again is clearly a matter of substantive law. But where the lex loci and the lex fori agree that the plaintiff’s contributory negligence will bar" }, { "docid": "9683706", "title": "", "text": "198 S.W. 817; Baltimore & O. R. Co. v. Newell, 3 Cir., 196 F. 866; Lehigh Valley R. Co. v. Passinier, 3 Cir., 4 F.2d 46; Atlantic Coast Line R. Co. v. Davis, 279 U.S. 34, 49 S.Ct. 210, 73 L.Ed. 601; Ford v. Dickinson, 280 Mo. 206, 217 S.W. 294; Haring v. Great Northern R. Co., 137 Wis. 367, 119 N.W. 325; Texas & P. R. Co. v. Swearingen, 196 U.S. 51, 61, 62, 25 S.Ct. 164, 49 L.Ed. 382; Washington R. & Elec. Co. v. Scala, 244 U.S. 630, 640, 37 S.Ct. 654, 61 L.Ed. 1360; Choctaw, O. & G. R. Co. v. McDade, 191 U.S. 64, 66, 67, 24 S.Ct. 24, 48 L.Ed. 96; Kanawha & M. R. Co. v. Kerse, 239 U.S. 576, 579, 36 S.Ct. 174, 60 L.Ed. 448; Norfolk & W. R. Co. v. Beckett, 4 Cir., 163 F. 479; Harvey v. Texas & Pac. R. Co., 5 Cir., 166 F. 385; West v. Chicago, B. & Q. R. Co., 7 Cir., 179 F. 801; St. Louis, I. M. & S. R. Co. v. Conley, 8 Cir., 187 F. 959; Portland Terminal Co. v. Jarvis, 1 Cir., 227 F. 8; Taber v. Davis, 2 Cir., 280 F. 612; Gray v. Davis, 1 Cir., 294 F. 57; and on second appeal, Davis v. Gray, 1 Cir., 8 F.2d 843; Central of Georgia R. Co. v. Davis, 5 Cir., 7 F.2d 269; Southern R. Co. v. Hobbs, 4 Cir., 35 F.2d 298; Devine v. Delano, 272 Ill. 166, 111 N.E. 742, Ann.Cas.1918A, 689; Illinois Terminal R. Co. v. Thompson, 210 Ill. 226, 71 N.E. 328; South Side Elevated R. Co. v. Nesvig, 214 Ill. 463, 73 N.E. 749; Wallingford v. Terminal R. Ass’n, 337 Mo. 1147, 88 S.W.2d 361; Westover v. Wabash R. Co., Mo.Sup., 6 S.W.2d 843; Howser v. Chicago, Great Western R. Co., 319 Mo. 1015, 1016, 5 S.W.2d 59; McIntyre v. St. Louis-S. F. R. Co., 286 Mo. 234, 227 S.W. 1047; Brown v. Missouri, K. & T. R. Co., 201 Mo.App. 316, 212 S.W. 26; Houston & T. C. R. Co. v." }, { "docid": "23245362", "title": "", "text": "725, so far as it commands anything, commands the federal courts to follow the state law. However this may be, it is not doubted that Congress has power to prescribe the “procedure” for the federal courts, and this would certainly include a power to include within the domain of “procedure” subject-matter falling within the borderland between substance and procedure, and rationally capable of classification within either category. Cf. Rule 43, Federal Rules of Civil Procedure, permitting the federal courts to disregard local exclusionary rules of evidence. See Luria v. United States, 231 U.S. 9, 25-27, 34 S.Ct. 10, 58 L.Ed. 101. See Callahan and Ferguson, Evidence and the New Federal Rules of Civil Procedure, 45 Yale L.J. 622, 627-30; Leach, State Law of Evidence in the Federal Courts, 43 Harv.L.Rev. 554, 583-85. “Rule 8. General Rules Of Pleading * * * (c) Affirmative Defenses. In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. * * * ” Congress in the Act of June 19, 1934 uses “practice and procedure” in contrast with “substantive rights” but does not define these terms. Where statutory language is ambiguous, the courts properly are inclined to adopt the construction put upon the language by the agency charged with carrying out the statute. This would a fortiori be true when, as here, the agency happens to be the Supreme Court of the United States. Cf. Sibbach v. Wilson & Co., 7 Cir., 1939, 108 F.2d 415. In the analogous situation where suit is brought in one state for an alleged tort committed in another, the courts generally classify burden of proof on the issue of contributory negligence as a matter of procedure and apply the lex fori. Levy v. Steiger, 233 Mass. 600, 124 N.E. 477; Chicago Terminal R. R. v. Vandenberg, 164 Ind. 470," }, { "docid": "23245335", "title": "", "text": "Railway, 124 Minn. 368, 373, 145 N.W. 40; Menard v. Goltra, 328 Mo. 368, 40 S.W.2d 1053. See Helton v. Alabama Midland, 97 Ala. 275, 12 So. 276; St. Louis & S. F. R. Co. v. Coy, 113 Ark. 265, 168 S.W. 1106; Prinn v. De Rice, 1930, 129 Me. 479, 149 A. 580; Pennsylvania Co. v. McCann, 54 Ohio St. 10, 42 N.E. 768, 31 L.R.A. 651, 56 Am.St.Rep. 695. Contra: Olson v. Omaha & C. B. S. Railway Co., 131 Neb. 94, 267 N.W. 246; Precourt v. Driscoll, 85 N.H. 280, 157 A. 525, 78 A.L.R. 874. Cf. Lykes Bros. SS. Co. v. Esteves, 5 Cir., 89 F.2d 528; Dela ware & Hudson Co. v. Nahas, 3 Cir., 14 F.2d 56. In these two groups of cases the courts were talking about the same thing and labelling it differently, but in each instance. the result was the same; the court was choosing the appropriate classification to enable it to apply its own familiar rule. In another and quite-different setting the question of classification has frequently arisen, namely, in cases involving the constitutionality of statutes shifting from the plaintiff to the defendant the burden of proof on the issue of contributory negligence, as applied retroactively to alleged torts committed before the date of the enactment. Here the courts, federal as well as state, have upheld the statutes as so applied. Sackheim v. Pigueron, 215 N.Y. 62, 109 N.E. 109; Southern Ind. Ry. v. Peyton, 157 Ind. 690, 693, 61 N.E. 722; Wallace v. Western N. C. R., 104 N.C. 442, 10 S.E. 552; Easterling Lumber Co. v. Pierce, 235 U.S. 380, 35 S.Ct. 133, 59 L.Ed. 279. See Meeker v. Lehigh Valley Rd. Co., 236 U.S. 412, 430, 35 S.Ct. 328, 59 L.Ed. 644, Ann.Cas.1916B, 691; Luria v. United States, 231 U.S. 9, 25-27, 34 S.Ct. 10, 58 L.Ed. 101; Mobile, Jackson & Kansas City Rd. Co. v. Turnipseed, 219 U.S. 35, 42, 31 S.Ct. 136, 55 L.Ed. 78, 32 L.R.A.,N.S., 226, Ann.Cas.1912A, 463; Reitler v. Harris, 223 U.S. 437, 441, 442, 32 S.Ct. 248, 56 L.Ed. 497. The" }, { "docid": "3718646", "title": "", "text": "357, 84 U.S. 357, 382-383, 21 L.Ed. 627, 641; Milwaukee & St. Paul Ry. Co. v. Arms, 1875, 91 U.S. 489, 494-495, 23 L.Ed. 374, 376; Steamboat New World v. King, 1853, 16 How. 469, 57 U.S. 469, 473-474, 14 L.Ed. 1019, 1021-1022. . Cf. S. S. Kresge Co. v. McCallion, 8 Cir., 1932, 58 F.2d 931, 932; Gilbert v. Duluth General Electric Co., 1904, 93 Minn. 99, 100 N.W. 653, 655, 106 Am.St.Rep. 430; see Smith, Liability for Substantial Physical Damage to Land by Blasting, 33 Harv.L.Rev. 542, 553 (1920). . As an Iowa court said in Denny v. Chicago, R. I. & P. Ry. Co., 1911, 150 Iowa 460, 130 N.W. 363, 304, the differentiation of negligence into degrees “has come to mean little more than a matter of comparative emphasis in the discussion of testimony.” . Danzansky v. Zimbolist, 1939, 70 App.D. C. 234, 237, 105 F.2d 457, 460; S. S. Kresge Co. v. McCallion, supra note 7, 58 F.2d at page 934. . Burdine’s, Inc., v. McConnell, 1941, 146 Fla. 512, 1 So.2d 462, 463; cf. Capital Traction Co. v. Copland, 1917, 47 App. D.C. 152, 159. . “The plaintiff in all negligence cases may show that better, safer, and more practicable devices than those used were available to the defendant.” Delmore v. Polinsky, 1945, 132 Conn. 28, 42 A.2d 349, 351; Chicago & Northwestern Ry. Co. v. Bower. 1916. 241 U.S. 470, 474, 36 S.Ct. 624, 625, 60 L.Ed. 1107, 1109; Edgarlon v. H. P. Welch Co., 1947, 321 Mass. 603, 74 N.E.2d 674, 677-678; Bimberg v. Northern Pac. Ry. Co., 1914, 217 Minn. 187, 14 N.W.2d 410, 414. . Cf. Brigham Young University v. Lillywhite, 10 Cir., 1941, 118 F.2d 836, 840-841, 137 A.L.R. 598; Dolan v. Boott Cotton Mills, 1904,185 Mass. 576, 70 N.E. 1025, 1026-1027; Belleville Stone Co. of New Jersey v. Comben, 1898, 61 N.J.L. 353, 39 A. 641, 642; Deschamps v. L. Bamberger, 1942, 128 N.J.L. 527, 27 A. 2d 3, 4; Erickson v. McNeely, 1906, 41 Wash. 509, 84 P. 3, 5; Camenzind v. Freeland Furniture Co., 1918, 89" }, { "docid": "6849138", "title": "", "text": "[Hemingway v. Illinois Central R. R., 114 F. 843, 846 (C. C. A. 5); Harmon v. Barber, 247 F. 1, 6, 7 (C. C. A. 6)]. Here we have a statute, a “law” of the state, which coneededly we must follow; and the question is whether the procedure, adopted by the state courts in its administration, is as authoritative as its text. We think it is. Central Vermont Ry. v. White, 238 U. S. 507, 35 S. Ct. 865, 59 L. Ed. 1433, Ann. Cas. 1916B, 252, came up on appeal from a trial in a court of Vermont. 87 Vt. 330, 89 A. 618. The cause of action arose under the Federal Employers’ Liability Act (45 USCA §§ 51-59), and the question was as to where the burden of proof lay upon the issue of contributory negligence. In Vermont the plaintiff had to show that he had not contributed to his injuries, while, as is well known, the rule is otherwise in a federal court. The Supreme Court held that the procedure was a part of the statute, and that the state courts must conform. We can see no difference between burden of proof and presumption, and the converse must be true. So we think that the New York decisions are controlling in the matter before us. It was settled before the statute was passed, and when liability depended upon the common law, that the possession of a vehicle gave rise to a presumption that the driver was upon the owner’s business (Norris v. Kohler, 41 N. Y. 43, 44; Ferris v. Sterling, 214 N. Y. 249, 253, 108 N. E. 406, Ann. Cas. 1916D, 1161; Potts v. Pardee, 220 N. Y. 431, 433, 116 N. E. 78, 8 A. L. R. 785; Fiocco v. Carver, 234 N. Y. 219, 220, 137 N. E. 309; Moore v. Rosenmond, 238 N. Y. 356, 358, 144 N. E. 639), and the step was a shorter one, after the statute had imposed liability if he had merely consented to its use (Chaika v. Vandenberg, 252 N. Y. 101, 104, 169 N. E." }, { "docid": "23245333", "title": "", "text": "of proving, the plaintiff’s contributory negligence, even though the suit arose in a state whose local rule was the contrary. Pokora v. Wabash Railway Co., 292 U.S. 98, 100, 54 S.Ct. 580, 78 L.Ed. 1149; Miller v. Union Pacific, 290 U.S. 227, 232, 233, 54 S.Ct. 172, 78 L.Ed. 285; Hemingway v. Illinois Central Railroad Co., 5 Cir., 114 F. 843, 846; Armour & Co. v. Carlas, 2 Cir., 142 F. 721, 722; New Ætna Portland Cement Co. v. Hatt, 6 Cir., 231 F. 611, 615-16; Harmon v. Barber, 6 Cir., 247 F. 1, 6; Bauman v. Black & White Town Taxis Co., 2 Cir., 263 F. 554; Maher v. Chicago, M. & St. P. Rail way Co., 7 Cir., 278 F. 431, 434; Cook Paint & Varnish Co. v. Hickling, 8 Cir., 76 F.2d 718, 721. See Central Vermont Railroad Co. v. White, 238 U.S. 507, 512, 35 S.Ct. 865, 59 L.Ed. 1433, Ann.Cas.1916B, 252; First National Bank v. Liewer, 8 Cir., 187 F. 16, 18. They avoided having to apply the local rule under the Conformity Act, R.S. § 914, 28 U.S.C.A. § 724, by saying that burden of proof was not a mere matter of procedure but concerned substantive rights, as to which the federal courts on a matter of “general law” were free to take their own view. See Herron v. Southern Pacific Co., 283 U.S. 91, 93, 94, 51 S.Ct. 383, 75 L.Ed. 857. The question of classification also arose where suit was brought in one state on an alleged tort committed in another state. But here it was generally held, in the state courts at least, that burden of proof as to contributory negligence was a matter of procedure ; hence the rale of the forum would be applied despite a contrary rule of the locus delicti. Levy v. Steiger, 233 Mass. 600, 124 N.E. 477; Smith v. Brown, Mass., 19 N.E.2d 732; Chicago Terminal R. R. v. Vandenberg, 164 Ind. 470, 73 N.E. 990; Rastede v. Chicago, St. P., M. & O. Railway, 203 Iowa 430, 431, 437, 212 N.W. 751; Jenkins v." }, { "docid": "23245343", "title": "", "text": "is to be classified as a matter of substantive law, we are in harmony with the spirit of the Tompkins case, and at the same time are adhering to the classification maintained in an unbroken line of federal court decisions under Swift’ v. Tyson, supra. Federal courts in other circuits have held, since the Tompkins decision, that the state rule as to burden of proof must now be applied in diversity of citizenship cases. Equitable Life Assurance Society v. MacDonald, 9 Cir., 1938, 96 F.2d 437; Schopp v. Muller Dairies, Inc., D.C.N.Y., 1938, 25 F.Supp. 50. See Montgomery Ward & Co., Inc. v. Snuggins, 8 Cir., 1939, 103 F.2d 458; Central Surety & Ins. Corp. v. Murphy, 10 Cir., 1939, 103 F.2d 117; Coca-Cola Bottling Co. v. Munn, 4 Cir., 1938, 99 F.2d 190, 193; Hagan & Cushing Co. v. Washington Water Power Co., 9 Cir., 1938, 99 F.2d 614; Lee v. Cannon Mills Co., 4 Cir., 1939, 107 F.2d 109. The Supreme Court has recently decided that a federal district court in Texas, entertaining a bill to remove a cloud on title to Texas land, must, under Erie Railroad Co. v. Tompkins, supra, apply the established Texas rule that on an issue of bona fide purchase for value without notice, the burden of proof is upon him who attacks the legal title and asserts a superior equity. Cities Service Oil Co. v. Dunlap, 308 U.S. 208, 60 S.Ct. 201, 203, 84 L.Ed. — - (December 4, 1939). In a brief opinion the court makes the point that the local rule “relates to a substantial right upon which the holder of recorded legal title to Texas land may confidently rely. * * * This was a valuable assurance in favor of its title.” While it is not believed that this holding is necessarily conclusive of the question now before us, the fact that the court cited as authority Central Vermont Railway v. White, 238 U.S. 507, 512, 35 S.Ct. 865, 59 L.Ed. 1433, Ann.Cas.1916B, 252, a case relating to contributory negligence, strengthens our conclusion that the state rule as to" }, { "docid": "4034279", "title": "", "text": "field of general law wherein the federal courts were not bound to follow the state decisions but were free to follow their own. The uniform federal rule was that contributory negligence constituted an affirmative defense and the plaintiff was not required to plead or prove due care, or freedom from contributory negligence as part of his case. Washington & G. Railroad Co. v. Glad mon, 15 Wall. 401, 405-408, 21 L.Ed. 114; Chicago Great Western R. Co. v. Price, 8 Cir., 97 F. 423; Cook Paint & Varnish Co. v. Hickling, 8 Cir., 76 F.2d 718; Central Vermont R. Co. v. White, 238 U.S. 507, 35 S.Ct. 865, 59 L.Ed. 1433, Ann. Cas.1916B, 252; Miller v. Union Pac. R. Co., 290 U.S. 227, 54 S.Ct. 172, 78 L.Ed. 285; Pokora v. Wabash R. Co., 292 U.S. 98, 54 S.Ct. 580, 78 L.Ed. 1149, 91 A.L.R. 1049. The last mentioned case arose in Illinois and though the Illinois rule then, as now, was directly to the contrary the Supreme Court said that the burden of proof was on the defendant to make out the defense of contributory negligence. And so the federal courts had held in Illinois from the beginning of the doctrine of Swift v. Tyson, supra. But the decision in Erie R. Co. v. Tompkins, supra, has, legally speaking, “turned the world upside down.” By that decision the independent body of so-called federal substantive law that had been built up through the years in the field of general law under the doctrine of Swift v. Tyson, supra, ceased to be controlling authority in the federal courts. Now each federal court must follow the substantive law of the state where the particular court is located or of the state where the action arose, as settled and declared by the courts of that state. Now the substantive laws of Illinois, as established by the decisions of her courts, as well as by her statutes, must be regarded as the controlling rules of decision in the trial of actions arising in that state in the federal courts. Erie R. Co. v. Tompkins," }, { "docid": "23245363", "title": "", "text": "fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. * * * ” Congress in the Act of June 19, 1934 uses “practice and procedure” in contrast with “substantive rights” but does not define these terms. Where statutory language is ambiguous, the courts properly are inclined to adopt the construction put upon the language by the agency charged with carrying out the statute. This would a fortiori be true when, as here, the agency happens to be the Supreme Court of the United States. Cf. Sibbach v. Wilson & Co., 7 Cir., 1939, 108 F.2d 415. In the analogous situation where suit is brought in one state for an alleged tort committed in another, the courts generally classify burden of proof on the issue of contributory negligence as a matter of procedure and apply the lex fori. Levy v. Steiger, 233 Mass. 600, 124 N.E. 477; Chicago Terminal R. R. v. Vandenberg, 164 Ind. 470, 73 N.E. 990; and cases cited supra, in the text. Certainly the Supreme Court in construing the Act of 1934 could consider its power over procedure as embracing a subject-matter commonly though not universally classified as “procedure”. See Note 2, supra. The explanation probably is that the rules were drafted before Swift v. Tyson, supra, was overruled, and the Advisory Committee assumed that the burden of proof w.as on the defendant because that had been the uniform federal rule under Swift v. Tyson, supra. We do not know, of course, whether the Supreme Court was aware that Swift v. Tyson, supra, was doomed to be overruled, but it may be pointed out that the Rules were transmitted by the Chief Justice to the Attorney General on December 20, 1937, and the Tompkins ease was not argued in the Supreme Court until January 31, 3938. The burden of pleading does not necessarily carry with it the burden of proof. See Wigmore, Evidence 2d ed. § 2486; Clark, Code Pleading, 418. Hence conformity with the state rule" }, { "docid": "7926475", "title": "", "text": "17 Cal.App. 439, 443, 120 P. 53; Palmer v. Atchison, etc., R.R. Co., 101 Cal. 187, 195, 35 P. 630; Cf. Owens v. Hagenbeck-Wallace Shows Co., 58 R.I. 162, 192 A. 158, 163, 164, 112 A.L.R. 113, 121, 122. Cummer Lumber Co. v. Silas, 98 Fla. 1158, 125 So. 372, 374; Co-operative Sanitary Baking Co. v. Shields, 71 Fla. 110, 70 So. 934; Ingram-Dekle Lumber Co. v. Geiger, 71 Fla. 390, 71 So. 552, 554, Ann.Cas.1918A, 971. Accord : Robinson v. Baltimore & Ohio R. R. Co., 237 U.S. 84, 35 S.Ct. 491, 59 L.Ed. 849; New York Cent. Railroad Co. v. Lockwood, 17 Wall. 357, 21 L.Ed. 627; Long v. Lehigh Valley R. Co., 2 Cir., 130 F. 870; McCormick v. Shippy, 2 Cir., 124 F. 48; Chicago, etc., R. Co. v. Wallace, 7 Cir., 66 F. 506, 30 L.R.A. 161; World’s Columbian Exposition Co. v. Republic of France, 7 Cir., 96 F. 687, 694, 695; Bates v. Railroad Co., 147 Mass. 255, 17 N.E. 633; Hosmer v. Railroad Co., 156 Mass. 506, 31 N.E. 652; Barrett v. Conragan, 302 Mass. 33, 18 N.E.2d 369; Clarke v. Ames, 267 Mass. 44, 165 N.E. 696; Northwestern Mut. Fire Ass’n v. Pacific Wharf & S. Co., 187 Cal. 38, 200 P. 934; Weirick v. Hamm Realty Co., 179 Minn. 25, 228 N.W. 175, 176; Holly v. Southern Ry. Co., 119 Ga. 767, 47 S.E. 188, 189; Cato v. Southern Ry. Co., 26 Ga. App. 578, 107 S.E. 98, 99; Niederhaus v. Jackson, 79 Ind.App. 551, 137 N.E. 623, 624; Missouri Pac. R. Co. v. Fuqua, 150 Ark. 145, 233 S.W. 926; Fidelity Union Life Ins. Co. v. Fine, Tex.Civ.App., 120 S.W.2d 138; see also Kansas City, Ft. S. & M. R. Co. v. B. F. Blaker & Co., 68 Kan. 244, 75 P. 71, 64 L.R.A. 81, 1 Ann.Cas. 883. Scotch Mfg. Co. v. Carr, 53 Fla. 480, 43 So. 427, 428; Hall v. O'Neil Turpentine Co., 56 Fla. 324, 47 So. 609, 612, 613, 16 Ann.Cas. 738; Southern Home Ins. Co. v. Putnal, 57 Fla. 199, 49 So. 922, 930;" }, { "docid": "5871456", "title": "", "text": "judgment of the trial court is affirmed. Art. 23, Sec. 6, of the Oklahoma Constitution, Okl.St.Ann., states' “The defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact, and shall, at all times, be left to the jury.” Sapulpa Refining Co. v. Sapulpa, 84 Okl. 93, 202 P. 780; Neversweat Mining Co. v. Ramsey, 84 Okl. 128, 202 P. 787; St. Louis-San Francisco Ry. Co. v. Robinson, 99 Okl. 2, 225 P. 986; Mascho v. Hines, 91 Okl. 295, 217 P. 856; St. Louis-San Francisco Ry. Co. et al. v. Williams, 176 Okl. 465, 56 P.2d 815; S. H. Kress & Co. v. Nash, 183 Okl. 544, 83 P.2d 536; Meiling v. Michael, 182 Okl. 508, 78 P.2d 704. Arizona has a similar constitutional provision and has adopted the Oklahoma construction. Inspiration Consol. Copper Co. v. Conwell, 21 Ariz. 480, 190 P. 88. Herron v. Southern Pacific Company, 283 U.S. 91, 51 S.Ct. 383, 75 L.Ed. 857; A. B. Small Co. v. Lambon & Co., 267 U.S. 248, 45 S.Ct. 300, 69 L.Ed. 597; Barrett v. Virginian Railway Co., 250 U.S. 473, 39 S.Ct. 540, 63 L.Ed. 1092; Central Vermont Railway Co. v. White, 238 U.S. 507, 35 S.Ct. 865, 59 L.Ed. 1433, Ann.Cas.1916B, 252; Southern Pac. Co. v. Pool, 160 U.S. 438, 16 S.Ct. 338, 40 L.Ed. 485; Washington & Georgetown Railway v. Gladmon, 15 Wall. 401, 21 L.Ed. 114; Chambers v. Skelly Oil Co., 10 Cir., 87 F.2d 853; Stanolind Oil & Gas Company v. Kimmel, 10 Cir., 68 F.2d 520; F. W. Woolworth Co. v. Davis, 10 Cir., 41 F.2d 342; People of State of Colorado, for Use of Little, v. Hutchinson et al., 8 Cir., 9 F.2d 275; New Amsterdam Casualty Co. et al. v. Farmers’ Co-op of Lyons, Kansas, 8 Cir., 2 F.2d 214; Miller v. Canadian Northern Ry. Co., 8 Cir., 281 F. 664. Courts have held the doctrine of Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, inapplicable to this particular function of the federal courts." }, { "docid": "4034278", "title": "", "text": "263 Ill.App. 325; Dee v. City of Peru, 343 Ill. 36, 174 N.E. 901. The defendant insists that the federal court is bound in this case to apply the law of negligence and contributory negligence laid down by the Illinois courts' in the decisions listed in the foregoing paragraph and in similar decisions. To support his contention he relies upon the recent decision of the United States Supreme Court in the case of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487 (decided April 25, 1938), which overruled the-long prevailing doctrine of Swift v. Tyson, 16 Pet. 1, 10 L.Ed. 865, that upon questions of general law the federal courts are free, in the absence of a state statute or a local law, to exercise their independent judgment as to what the law is. Prior to the decision in the case of Erie R. Co. v. Tompkins, supra, the law of negligence and of contributory negligence was uniformly held by the federal courts to be in the field of general law wherein the federal courts were not bound to follow the state decisions but were free to follow their own. The uniform federal rule was that contributory negligence constituted an affirmative defense and the plaintiff was not required to plead or prove due care, or freedom from contributory negligence as part of his case. Washington & G. Railroad Co. v. Glad mon, 15 Wall. 401, 405-408, 21 L.Ed. 114; Chicago Great Western R. Co. v. Price, 8 Cir., 97 F. 423; Cook Paint & Varnish Co. v. Hickling, 8 Cir., 76 F.2d 718; Central Vermont R. Co. v. White, 238 U.S. 507, 35 S.Ct. 865, 59 L.Ed. 1433, Ann. Cas.1916B, 252; Miller v. Union Pac. R. Co., 290 U.S. 227, 54 S.Ct. 172, 78 L.Ed. 285; Pokora v. Wabash R. Co., 292 U.S. 98, 54 S.Ct. 580, 78 L.Ed. 1149, 91 A.L.R. 1049. The last mentioned case arose in Illinois and though the Illinois rule then, as now, was directly to the contrary the Supreme Court said that the burden of proof" }, { "docid": "23245345", "title": "", "text": "burden of proof on the issue of contributory negligence should be followed in the federal court in diversity of citizenship cases. Thus far, the case has been discussed as though suit had been brought in the federal court sitting in tlie state where the alleged tort occurred. But there is the complicating factor that the accident occurred in Maine and suit was brought in Massachusetts. This makes it necessary to consider three further points: First, if the plaintiff had sued in a Massachusetts state court, would the Massachusetts Supreme Judicial Court have allowed the application of the Maine rule as to burden of proof? The answer is, no. The Court would have said that burden of proof is a matter of procedure only, and would have applied the Massachusetts rule that the burden is on the defendant to establish the plaintiff’s contributory negligence. Such was the holding in Levy v. Steiger, 233 Mass. 600, 124 N.E. 477, and Smith v. Brown, Mass., 19 N.E.2d 732. Second, would such a decision by the Supreme Judicial Court of Massachusetts be subject to reversal by the Supreme Court of the United States? Presumably we are permitted under the Tompkins case thus to attack the decision of a state court collaterally, so to speak, for the Supreme Court would hardly require the federal courts to follow a local decision which, had it been appealed, would have been reversed by the Supreme Court on constitutional grounds. No question is involved of sovereign jurisdiction of the state over person or property, a segment of conflict of laws where the Supreme Court of the United States has long had the last word, under the due process clause. Pennoyer v. Neff, 95 U.S. 714, 733, 24 L.Ed. 565. In Kryger v. Wilson, 242 U.S. 171, 176, 37 S.Ct. 34, 61 L.Ed. 229, the Supreme Court expressed the view that doctrines of the conflict of laws are part of the body of the common law; and that an allegedly erroneous decision by a state court upon a point of conflict of laws no more raises a federal question than" }, { "docid": "4035190", "title": "", "text": "which is to be applied by the Federal Courts in a case of this character is the law of the State, disapproving Swift v. Tyson, 16 Pet. 1, 10 L.Ed. 865. Under the New York law the burden of proving freedom from contributory negligence in a case of this character is upon the plaintiff. The Supreme Court of the United States in the case of Central Vermont Railway Company v. White, 238 U.S. 507, 35 S.Ct. 865, 59 L.Ed. 1433, Ann.Cas.1916B,’ 252, decided [page 867]: “The defendant, however, insisted that White knew his train was behind time and running at a low rate of speed. The company contended that, in view of these circumstances, it was his duty, under the rules, to put out lighted fuses and torpedoes in order to give warning of the presence of train No. 401 on the track. On that theory the company asked the court to charge that the burden was on the administratrix to show that White was not guilty of contributory negligence. In considering that exception the supreme court of Vermont held that the defendant’s contention was based on a correct statement of the state rule, but said: ‘This case, however, is brought upon an act of Congress * * * (which) supersedes the laws of the state in so far as the latter cover the same field. * * * Consequently the question of the burden of proof respecting contributory negligence on the part of the injured employee is to be determined according to the provisions of that act,’ [45 U.S.C.A. § 51 et seq.] citing Seaboard Air Line R. Co. v. Moore, 193 F. 1022, 113 C.C.A. 668, Id., 228 U.S. [433], 434, 33 S.Ct. 580, 57 L.Ed. 907. “In this court the argument was devoted principally to a discussion of this ruling — counsel for the railroad company earnestly insisting that ‘the lex fori must determine all - questions of evidence, including that of the burden of proof. Whart.Confl.L. 3 Ed. § 478b.’ It was argued that there is nothing in the Federal statute indicating an intent to change" } ]

[ { "docid": "17222201", "title": "", "text": "summary judgment and dismissed all of Stewart’s claims. Its order cited Stewart’s failure to “rebut ... defendant’s uncontradicted affidavits and exhibits” showing that CBI did reinvestigate the disputed information, and CBI did not rely on its inaccurate credit report to deny Stewart membership. Stewart v. CBI, slip op. at 9, 15 (June 30, 1979) [hereinafter cited as Memorandum Opinion]. On Stewart’s section 1681e(b) claim based on the initial inaccuracy of his file, however, it held that “plaintiff’s allegations of damages do ... appear ... [to] present a triable issue of fact.” Id. at 15 n.*. Nevertheless, the court granted summary judgment for defendant because it found Stewart did not intend to shoulder his burden of proof by presenting evidence on the reasonableness of CBI’s procedures, an issue CBI had explicitly stated was not raised in its motion. See supra note 4. This appeal followed. II. The Wage Earner Plan [1] In Koropoulos, at 41-42, decided today, we state that where, as here, a consumer reporting agency reports inaccurate information, a claim for violation of section 1681e(b) will turn on the reasonableness of the agency’s procedures for assuring maximum accuracy of its reports. See also Hauser v. Equifax, Inc., 602 F.2d 811 (8th Cir.1979) (consumer reporting agencies not strictly liable for inaccurate reports under the Act). We hold here that with respect to this second element a plaintiff cannot rest on a showing of mere inaccuracy, shifting to the defendant the burden of proof on the reasonableness of procedures for ensuring accuracy: There is no indication that Congress meant to so shift the nominal plaintiff’s burden of proof as to requisite components of a claim based on a statutory violation. Thus, we conclude that a plaintiff must minimally present some evidence from which a trier of fact can infer that the consumer reporting agency failed to follow reasonable procedures in preparing a credit report. We believe, however, that Stewart did present enough evidence to create a genuine dispute about the reasonableness of CBI’s procedures. “The standard of conduct by which the trier of fact must judge the adequacy of [consumer reporting]" } ]

[ { "docid": "14462001", "title": "", "text": "unless there are no genuine issues of material fact for trial. Fed. R.Civ.P. 56(c); See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant must demonstrate the lack of a genuine issue of fact for trial, and if that burden is met, the party opposing the motion must “go beyond the pleadings” and come forward with evidence of a genuine factual dispute. Id. at 324, 106 S.Ct. 2548 (1986). The Court must view the facts and the inferences drawn from the facts in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Conclu-sory allegations are not sufficient to defeat a motion for summary judgment. Cf. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). II. Plaintiffs’ § 1681e(b) Fair Credit Reporting Act Claim Plaintiffs state two causes of action under the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq. Plaintiffs’ first FCRA claim arises under Section 1681e(b), which states that “whenever a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.” It is well established that a case of “negligent noncompliance with § 1681e(b) consists of four elements:” (1) inaccurate information was included in a consumer’s credit report; (2) the inaccuracy was due to defendant’s failure to follow reasonable procedures to assure maximum possible accuracy; (3) the consumer suffered injury; and (4) the consumer’s injury was caused by the inclusion of the inaccurate entry. See, e.g., Philbin v. Trans Union Corp., 101 F.3d 957, 963 (3rd Cir.1996). Defendant argues that the § 1681e(b) claim fails because the information reported was accurate and because Plaintiffs were not harmed by the inclusion of the information they allege is inaccurate. In support of this contention, Defendant relies upon Plaintiff Stanley Spitzer’s deposition, in which he acknowledges that he and Plaintiff Rose Spitzer “in [them] negligence” signed a balloon" }, { "docid": "19105186", "title": "", "text": "claims pertaining to alleged liabilities arising after June 23,1996. C. Defendant’s Verification of the Disputed Sears Account Defendant next asserts that Plaintiffs cannot sustain a claim under 15 U.S.C. § 1681e(b) based on the disputed Sears Account because Defendant verified that the Sears Account was “accurate.” (Mem. at 2.) The court, however, finds that summary judgment is not appropriate as to this claim. To establish a “prima facie violation” under 15 U.S.C. § 1681e(b), a consumer must present evidence tending to show that a credit reporting agency prepared a report containing “inaccurate” information. If he [or she] fails to satisfy this initial burden, the consumer, as a matter of law, has not established a violation ..., and a court need not inquire further as to the reasonableness of the procedures adopted by the credit reporting agency. The Act, however, does not make reporting agencies strictly liable for all inaccuracies. The agency can escape liability if it establishes that an inaccurate report was generated by following reasonable procedures, which will be a jury question in the overwhelming majority of cases. Thus, prior to sending a [§ 1681e(b) ] claim to the jury, a credit reporting agency can usually prevail only if a court finds, as a matter of law, that a credit report was “accurate.” Cahlin v. General Motors Acceptance Corp., 936 F.2d 1151, 1156 (11th Cir.1991) (internal footnotes omitted); see also Guimond v. Trans Union Credit Information Co., 45 F.3d 1329, 1333 (9th Cir.1995). Plaintiffs have satisfied their initial burden, because Mr. Barron denies that he owned the Sears Account listed in his consumer reports. Therefore, Mr. Barron contends that he could not have incurred the alleged debt. (Resp., Ex. 1; Mem., Ex. A.) Accordingly, the relevant question now becomes whether Defendant’s procedures for verifying the accuracy of the Sears Account were reasonable. “The standard of conduct by which the trier of fact must judge the adequacy of [consumer reporting] agency procedures is what a reasonably prudent person would do under the circumstances.” Thompson v. San Antonio Retail Merchants Association, 682 F.2d 509, 513 (5th Cir.1982). Moreover, evaluating the reasonableness" }, { "docid": "14462002", "title": "", "text": "Plaintiffs’ first FCRA claim arises under Section 1681e(b), which states that “whenever a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.” It is well established that a case of “negligent noncompliance with § 1681e(b) consists of four elements:” (1) inaccurate information was included in a consumer’s credit report; (2) the inaccuracy was due to defendant’s failure to follow reasonable procedures to assure maximum possible accuracy; (3) the consumer suffered injury; and (4) the consumer’s injury was caused by the inclusion of the inaccurate entry. See, e.g., Philbin v. Trans Union Corp., 101 F.3d 957, 963 (3rd Cir.1996). Defendant argues that the § 1681e(b) claim fails because the information reported was accurate and because Plaintiffs were not harmed by the inclusion of the information they allege is inaccurate. In support of this contention, Defendant relies upon Plaintiff Stanley Spitzer’s deposition, in which he acknowledges that he and Plaintiff Rose Spitzer “in [them] negligence” signed a balloon mortgage for the benefit of his brother’s business venture without reading the terms of the note. See Plaintiffs’ Response at 2. Mr. Spitzer reports that his brother’s “house of cards collapsed” and that his brother eventually defaulted on the loan, resulting in Plaintiffs’ being forced to assume the payments. See Stanley Spitzer Affidavit at 14-15. Plaintiffs make several key admissions regarding the veracity of the items reported on their consumer report. First, Plaintiffs admit throughout their depositions that they made several late payments to Security Pacific. Plaintiffs do not contest the accuracy of Trans Union’s reporting of these late payments, but note that they made double-payments whenever they missed a month’s mortgage payment. Next, Plaintiffs admit that they filed for bankruptcy to delay foreclosure on the collateral — their home' — but note that they eventually made full payment to Trans Union and that the bankruptcy filing was dismissed. Plaintiffs maintain that the principal was “suddenly” due and that they were “presented with a $250,000 payment to be made in one lump sum.” See Plaintiffs’" }, { "docid": "17223088", "title": "", "text": "82-1510, slip op. at 3 (June 23, 1983) (Memorandum Opinion) [hereinafter cited as Memorandum Opinion]. The district court held that the rating was accurate because VNB lost 40% of the money owed it due to its need to take collection measures. Thus, it concluded that the “9” rating — indicating a bad debt — was appropriate, and the “0” balance accurately reflected the balance on VNB’s books. Id. at 5. It also dismissed Mrs. Koropoulos’ claim based on the report issued to Lord & Taylor because “[a]t most, defendant provided the department store with accurate credit information regarding Mr. Koropoulos that caused the department store to deny a credit card for his wife.” Id. at 7. This appeal from dismissal of plaintiffs’ FCRA claims followed. II. The VNB Loan A. The Accuracy Defense The FCRA requires that [w]henever a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates. 15 U.S.C. § 1681e(b). The Act further provides a cause of action by a consumer against [a]ny consumer reporting agency or user of information which is negligent in failing to comply with any requirement imposed by this subchapter [the FCRA] with respect to any consumer ... [for] an amount equal to ... any actual damages sustained by the consumer as a result of the failure. 15 U.S.C. § 1681o(1). Read together, these provisions allow a consumer to bring suit for a violation of section 1681e(b) only if a credit reporting agency issues an inaccurate report on the consumer, since only then does harm flow from the agency’s violation. Many cases construing section 1681e(b) have limited liability of credit reporting agencies to technically inaccurate reports— reports which include false information— and have dismissed actions where reports were factually correct but nonetheless misleading or materially incomplete. For example, one district court held that a report that the plaintiff had declared bankruptcy was accurate, within the meaning of section 1681e(b), despite its failure to mention that the consumer had withdrawn his bankruptcy petition and fully repaid" }, { "docid": "11330793", "title": "", "text": "case of negligent noncompliance with section 1681e(b), a plaintiff must prove: (1) inaccurate information was included in a consumer’s credit report; (2) the inaccuracy was due to defendant’s failure to follow reasonable procedures to assure maximum accuracy; (3) injury to the consumer; and (4) the consumer’s injury was caused by the inclusion of the inaccurate entry. Philbin, 101 F.3d at 963. To show willful noncompliance, a plaintiff must prove that the defendants “knowingly and intentionally committed an act in conscious disregard for the rights of others, but need not show malice or evil motive.” Cushman v. Trans Union Corp., 115 F.3d 220, 226 (3d Cir.1997) (quoting Philbin, 101 F.3d at 970). The United States Supreme Court has clarified that reckless disregard of FCRA requirements also qualifies as willful violation within the meaning of section 1681n(a) . Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 71, 127 S.Ct. 2201, 167 L.Ed.2d 1045 (2007). As to the accuracy prong of section 1681e(b), the majority of Circuit Courts have adopted the “maximum possible accuracy approach” which holds that a credit entry can be “incomplete or inaccurate” within the meaning of the FCRA either “because it is patently incorrect, or because it is misleading in such a way and to such an extent that it can be expected to adversely affect credit decisions.” Sepulvado v. CSC Credit Servs., Inc., 158 F.3d 890, 895 (5th Cir.1998); see also Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147, 1163 (9th Cir.2009) (holding that a report that is misleading to such an extent that it can be expected to adversely affect credit decisions violates the FCRA); Saunders v. Branch Banking and Trust Co. of VA, 526 F.3d 142, 148 (4th Cir.2008) (holding that a credit report is not accurate under the FCRA if it provides information in such a manner as to create a materially misleading impression); Koropoulos v. Credit Bureau, Inc., 734 F.2d 37, 40 (D.C.Cir.1984) (“Certainly reports containing factually correct information that nonetheless mislead their readers are neither maximally accurate nor fair to the consumer who is the subject of their reports” within" }, { "docid": "11330792", "title": "", "text": "adhere to the requirements of the FCRA, the statute provides for civil liability for actual damages, costs and attorney’s fees. 15 U.S.C. § 1681o. Furthermore, if an agency willfully fails to comply with the FCRA, the Act also imposes liability for punitive and, potentially, statutory damages. See 15 U.S.C. § 1681n. The Complaint at issue sets forth a claim for willful violation of two provisions of the FCRA: (1) 15 U.S.C. § 1681e(b); and (2) 15 U.S.C. § 1681k. Via its present Motion to Dismiss, Defendant challenges both of these violations, specifically claiming that under Iqbal/Twombly standards, the Complaint fails to set forth specific facts to plausibly suggest that Defendant’s conduct was unreasonable, much less will ful. Plaintiff responds that it has adequately stated a claim under the FCRA for willful misconduct. The Court considers each provision individually. A. 15 U.S.C. § 1681e(b) Section 1681e(b) provides: “[w]henever a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information.” 15 U.S.C. § 1681e(b). To establish a case of negligent noncompliance with section 1681e(b), a plaintiff must prove: (1) inaccurate information was included in a consumer’s credit report; (2) the inaccuracy was due to defendant’s failure to follow reasonable procedures to assure maximum accuracy; (3) injury to the consumer; and (4) the consumer’s injury was caused by the inclusion of the inaccurate entry. Philbin, 101 F.3d at 963. To show willful noncompliance, a plaintiff must prove that the defendants “knowingly and intentionally committed an act in conscious disregard for the rights of others, but need not show malice or evil motive.” Cushman v. Trans Union Corp., 115 F.3d 220, 226 (3d Cir.1997) (quoting Philbin, 101 F.3d at 970). The United States Supreme Court has clarified that reckless disregard of FCRA requirements also qualifies as willful violation within the meaning of section 1681n(a) . Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 71, 127 S.Ct. 2201, 167 L.Ed.2d 1045 (2007). As to the accuracy prong of section 1681e(b), the majority of Circuit Courts have adopted the “maximum possible accuracy approach” which" }, { "docid": "16065351", "title": "", "text": "assure maximum possible accuracy. See, e.g., Guimond, 45 F.3d at 1333; Cahlin v. Gen. Motors Acceptance Corp., 936 F.2d 1151, 1156 (11th Cir.1991); Stewart v. Credit Bureau, Inc., 734 F.2d 47, 51 (D.C.Cir.1984). The district court concluded that CAI’s report to Sumitomo contained accurate information about Dalton’s criminal record and that CAI used reasonable procedures in preparing the report. The current record does not support these conclusions. CAI claimed in its motion for summary judgment, and the district court agreed, that CAI reported accurate information. Dalton, however, proffered specific facts that create a triable issue of fact on the question of accuracy. To make out a “violation under § 1681e(b), a consumer must present evidence tending to show that a credit reporting agency prepared a report containing inaccurate information.” Guimond, 45 F.3d at 1333. See also Washington v. CSC Credit Servs. Inc., 199 F.3d 263, 267 n. 3 (5th Cir.2000); Philbin v. Trans Union Corp., 101 F.3d 957, 964 (3d Cir.1996); Spence v. TRW, Inc., 92 F.3d 380, 382 (6th Cir.1996); Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7th Cir.1994); Cahlin, 936 F.2d at 1156; Koropoulos v. Credit Bureau, Inc., 734 F.2d 37, 39 (D.C.Cir.1984). A report is inaccurate when it is “patently incorrect” or when it is “misleading in such a way and to such an extent that it can be expected to [have an] adverse[ ]” effect. Sepulvado v. CSC Credit Servs., 158 F.3d 890, 895 (5th Cir.1998). The accuracy issue in this case turns on whether CAI’s report indicates that Dalton had been convicted of a felony. CAI’s report stated that the following record about Dalton “was found to be on file” in the clerk’s office in Jefferson County, Colorado: 93F1735 — 9/26/93—Felony—Third degree assault — 1/26/94—Guilty—710 days suspended sentence, 20 days jail sentence, 2 years probation CAI argues that the report is accurate because it does not explicitly state that Dalton was guilty of a felony. However, a reasonable jury could read the report as plainly indicating that Dalton was found guilty of a felony, third degree assault. (Third degree assault is actually a" }, { "docid": "11330794", "title": "", "text": "holds that a credit entry can be “incomplete or inaccurate” within the meaning of the FCRA either “because it is patently incorrect, or because it is misleading in such a way and to such an extent that it can be expected to adversely affect credit decisions.” Sepulvado v. CSC Credit Servs., Inc., 158 F.3d 890, 895 (5th Cir.1998); see also Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147, 1163 (9th Cir.2009) (holding that a report that is misleading to such an extent that it can be expected to adversely affect credit decisions violates the FCRA); Saunders v. Branch Banking and Trust Co. of VA, 526 F.3d 142, 148 (4th Cir.2008) (holding that a credit report is not accurate under the FCRA if it provides information in such a manner as to create a materially misleading impression); Koropoulos v. Credit Bureau, Inc., 734 F.2d 37, 40 (D.C.Cir.1984) (“Certainly reports containing factually correct information that nonetheless mislead their readers are neither maximally accurate nor fair to the consumer who is the subject of their reports” within the meaning of the FCRA). With respect to the reasonable procedures aspect of the cause of action, “Reasonable procedures are those that a reasonably prudent person would [undertake] under the circumstances.” Philbin, 101 F.3d at 963 (internal quotation marks omitted). “Judging the reasonableness of a [credit reporting] agency’s procedures involves weighing the potential harm from inaccuracy against the burden of safeguarding against such inaccuracy.” Id. (quotations omitted). As a general rule, “a plaintiff may present his case to the jury on the issue of reasonable procedures merely by showing an inaccuracy in the consumer report and nothing more.” Id. at 965; see also Guimond v. Trans Union Credit Info. Co., 45 F.3d 1329, 1333 (9th Cir.1995) (recognizing that the reasonableness of a procedure is a jury question in overwhelming majority of cases); Crabill v. Trans Union, L.L.C., 259 F.3d 662, 664 (7th Cir.2001) (reasonableness of procedures is treated as a factual question generally suited for a jury’s resolution). Finally, when determining whether a CRA’s actions rise to the level of willfulness, the United States Supreme" }, { "docid": "13105408", "title": "", "text": "his favor. See id. at 255, 106 S.Ct. 2505. Nevertheless, the nonmovant need not be given the benefit of every inference but only of every reasonable inference. See Brown v. City of Clewiston, 848 F.2d 1534, 1540 n. 12 (11th Cir.1988). III. DISCUSSION A. FCRA Claims The purpose of the FCRA is to ensure “that consumer reporting agencies adopt reasonable procedures for meeting the needs of commerce for consumer credit ... and other information in a manner which is fair and equitable to the consumer, with regard to the confidentiality, accuracy, relevancy, and proper utilization of such information .... ” 15 U.S.C. § 1681(b). Sections 1681n and 1681o provide private rights of action for willful and negligent noncompliance with any duty imposed by the FCRA and allow recovery for actual damages and attorneys’ fees and costs, as well as punitive damages in the case of willful noncompliance. 1.FCRA § 1681e(b): Reasonable Procedures The FCRA provides that “[wjhen-ever a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.” 15 U.S.C. § 1681e(b). To sustain her FCRA § 1681e(b) claim, plaintiff must prove the well established elements set forth in Bryant v. TRW, Inc., 487 F.Supp. 1234, 1238 (E.D.Mich.1980), aff'd, 689 F.2d 72 (6th Cir.1982) and Morris v. Credit Bureau of Cincinnati, Inc., 563 F.Supp. 962, 967 (S.D.Ohio 1983). In order to recover, plaintiff must show: 1. Defendant was negligent in that it failed to follow reasonable procedures to assure maximum possible accuracy of information about the plaintiff; 2. Defendant reported inaccurate information about the plaintiff; 3. Plaintiff was injured; and 4. Defendant’s negligence was the proximate cause of such injury. Morris, 563 F.Supp. at 967, citing Bryant, 487 F.Supp. at 1238. “In order to make out a prima facie violation of section [1681e(b) ] ... a consumer must present evidence tending to show that a credit reporting agency prepared a report containing ‘inaccurate’ information.” Cahlin v. General Motors Acceptance Corp., 936 F.2d 1151, 1156 (11th Cir.1991). The FCRA does not make reporting" }, { "docid": "23031492", "title": "", "text": "satisfy this “minimal[]” burden, “a plaintiff need not introduce direct evidence of unreasonableness of procedures: In certain instances, inaccurate credit reports by themselves can fairly be read as evidencing unreasonable procedures, and . in such instances plaintiffs failure to present direct evidence will not be fatal to his claim.” Id. at 51-52 (emphasis added). While the Stewart court did not definitively spell out what those “certain instances” were, it did give some guidance. For example, it cited with approval Bryant, 487 F.Supp. at 1242, in which the court concluded that inconsistencies between two different reports concerning the plaintiff “imposed a duty on the reporting agency to verify the information in those reports.” Stewart, 734 F.2d at 52. The court also approvingly cited Morris, 563 F.Supp. at 968, in which the court likewise found “the existence of ... two similar files [on plaintiff] to be a sufficient indicium of unreasonable procedures to satisfy the plaintiffs’ ‘burden.’” Stewart, 734 F.2d at 52. The D.C. Circuit concluded: “Certainly ... inconsistencies between two files or reports involving less fundamental inaccuracies [than a falsely reported, wage earner plan] can provide sufficient grounds for inferring that an agency acted negligently in failing to verify information.” Id. In an even broader holding, the Court of Appeals for the Ninth Circuit recently wrote: In order to make out a prima facie violation under § 1681e(b), a consumer must present evidence tending to show that a credit reporting agency prepared a report containing inaccurate information. The FCRA does not impose strict liability, however — an agency can escape liability if it establishes that an inaccurate report was generated despite the agency’s following reasonable procedures. Guimond, 45 F.3d at 1333 (emphasis added) (citation and footnote omitted); see also id. at 1334 (“Guimond has made out a prima facie case under § 1681e(b) by showing that there were inaccuracies in her credit report.”). Similarly, the Court of Appeals for the Eleventh Circuit wrote: In order to make out a prima facie violation of [§ 1681e(b)], the Act implicitly requires that a consumer must present evidence tending to show that a credit" }, { "docid": "23318641", "title": "", "text": "to follow reasonable procedures to assure maximum possible accuracy; (3) the consumer suffered injury; and (4) the consumer’s injury was caused by the inclusion of the inaccurate entry.” Philbin v. Trans Union Corp., 101 F.3d 957, 963 (3d Cir.1996). In rejecting Trans Union’s claim and upholding the jury’s verdict, the district court correctly concluded that Trans Union’s use of the OFAC alert created the impression that Cortez was actually the person named on OFAC’s SDN List. While the word “match” may be ambiguous in some circumstances, the jury was entitled to view Trans Union’s actions in their proper context. Trans Union provided the credit report with the OFAC alerts to the dealership in response to receiving identifying information about a specific consumer, Cortez. The dealership relied upon the information about Cortez that Trans Union provided to determine whether or not to finance her car purchase. The alert on Cortez’s credit report does not state that the names are “similar” to someone on the SDN List or that a match is “possible.” It reported a “match” with someone on the SDN List. Thus, the jury and district court correctly determined that Trans Union could have taken reasonable measures to assure maximum possible accuracy of its credit report with respect to these alerts. “Reasonable procedures are those that a reasonably prudent person would undertake under the circumstances. Judging the reasonableness of a credit reporting agency’s procedures involves weighing the potential harm from inaccuracy against the burden of safeguarding against such inaccuracy.” Philbin, 101 F.3d at 963 (alterations, quotations, and citations omitted). It is important to note that § 1681e(b) erects a standard of “maximum possible accuracy.” That requires more than merely allowing for the possibility of accuracy. In Philbin, the plaintiffs credit report contained a lien that actually belonged to his father. 101 F.3d at 960. He wrote to the credit reporting agency, which corrected the error and added a notation to the credit report stating, “Do not confuse with father James Philbin Sr different address different social security number.” Id. Two and a half years later, the plaintiff applied for and" }, { "docid": "13105411", "title": "", "text": "only one Fidelity account, rather than two. (PX F ¶ 1; PX J ¶ 9.) Because there is evidence that Trans Union reported two Fidelity accounts with different account numbers, different balances, and different reports of adverse information, (PX A), Trans Union’s reporting of two Fidelity accounts constitutes a prima facie case of inaccurate reporting. Trans Union argues that its reporting of the Dial Bank account is accurate, and thus cannot form the basis of a prima facie case. (Def.’s Brief at 5-6.) Trans Union reported that the account was subject to a Chapter 13 Wager Earner Plan. (PX A.) Although plaintiff has not filed for bankruptcy, her ex-husband, a joint obli- gor on the account, filed for Chapter 18 bankruptcy after their divorce. (ComplJ 49.) Plaintiff contends that although defendant’s report that the Dial account was subject to Chapter 13 bankruptcy is technically accurate, it is actionable because it is misleading or materially incomplete because it suggests that plaintiff filed for bankruptcy.. (Pl.’s Resp. at 4.) Plaintiffs position is not without support. See Koropoulos v. Credit Bureau, Inc., 734 F.2d 37, 40-42 (D.C.Cir.1984). Under this view, a credit reporting agency cannot prevail on summary judgment if it reports factually correct information that could be interpreted as misleading or incomplete. See id. In support of its position, the District of Columbia Circuit relied on Congressional intent as gleaned from the text of the FCRA. “Congress did not limit the Act’s mandate to reasonable .procedures to assure only technical accuracy; to the contrary, the Act requires reasonable procedures to assure ‘maximum accuracy.’ ” Id. at 40; see 15 U.S.C. § 1681e(b) (requiring reporting agencies to “follow reasonable procedures to assure maximum possible accuracy ... ”). The court concluded that granting summary judgment in favor of a reporting agency who issued a report containing factually correct but misleading information would be inconsistent with the Act’s express purpose of requiring that “consumer reporting agencies adopt reasonable procedures for meeting the needs of commerce for consumer credit ... in a manner which is fair and equitable to the consumer, with regard to the confidentiality," }, { "docid": "23031488", "title": "", "text": "1238 (E.D.Mich.1980), aff'd, 689 F.2d 72 (6th Cir.1982). Defendants do not dispute they both produced at least one report that contained inaccurate information about Philbin. Nor do they contest that Philbin’s emotional distress damages are cognizable. See Guimond, 45 F.3d at 1333; Stevenson v. TRW Inc., 987 F.2d 288, 296 (5th Cir.1993); Millstone v. O’Hanlon Reports, Inc., 528 F.2d 829, 834-35 (8th Cir.1976). Moreover, TUC apparently concedes that Philbin has satisfied his burden on summary judgment of producing facts from which a reasonable jury could infer that it did not follow reasonable procedures. As other courts have held, “[a]llowing inaccurate information back onto a credit report after deleting it because it is inaccurate is negligent.” Stevenson, 987 F.2d at 293; see also Morris, 563 F.Supp. at 968. As their main contention, both defendants urge that Philbin has failed to produce sufficient evidence from which a reasonable trier of fact could conclude that the inaccuracies in the reports were the cause of Philbin’s damages. TRW additionally contends that Phil-bin has failed to produce any evidence that it faded to follow reasonable procedures. We address these contentions in reverse order. 1. Reasonable Procedures Reasonable procedures are those that “ ‘a reasonably prudent person would [undertake] under the' circumstances.’ ” Stewart v. Credit Bureau, Inc., 734 F.2d 47, 51 (D.C.Cir.1984) (per curiam) (quoting Bryant v. TRW, Inc., 689 F.2d 72, 78 (6th Cir.1982)) (alteration added). “Judging the reasonableness of a[ credit reporting] agency’s procedures involves weighing the potential harm from inaccuracy against the burden of safeguarding against such inaccuracy.” Id. TRW urges that Philbin must come forward with affirmative proof that it failed to use reasonable procedures to assure maximum accuracy and that he has faded to do so. It cites a number of eases for the proposition that the FCRA “does not make reporting agencies strictly liable for all inaccuracies” that appear on consumer reports they prepare. Cahlin, 936 F.2d at 1156; see also Stewart, 734 F.2d at 51; Bryant, 689 F.2d at 78; Thompson v. San Antonio Retail Merchants Ass’n, 682 F.2d 509, 513 (5th Cir.1982) (per curiam); Equifax, Inc. v." }, { "docid": "19105187", "title": "", "text": "overwhelming majority of cases. Thus, prior to sending a [§ 1681e(b) ] claim to the jury, a credit reporting agency can usually prevail only if a court finds, as a matter of law, that a credit report was “accurate.” Cahlin v. General Motors Acceptance Corp., 936 F.2d 1151, 1156 (11th Cir.1991) (internal footnotes omitted); see also Guimond v. Trans Union Credit Information Co., 45 F.3d 1329, 1333 (9th Cir.1995). Plaintiffs have satisfied their initial burden, because Mr. Barron denies that he owned the Sears Account listed in his consumer reports. Therefore, Mr. Barron contends that he could not have incurred the alleged debt. (Resp., Ex. 1; Mem., Ex. A.) Accordingly, the relevant question now becomes whether Defendant’s procedures for verifying the accuracy of the Sears Account were reasonable. “The standard of conduct by which the trier of fact must judge the adequacy of [consumer reporting] agency procedures is what a reasonably prudent person would do under the circumstances.” Thompson v. San Antonio Retail Merchants Association, 682 F.2d 509, 513 (5th Cir.1982). Moreover, evaluating the reasonableness of a consumer reporting agency’s procedures “involves weighing the potential harm from inaccuracy against the burden of safeguarding against such inaccuracy. Under this standard a plaintiff need not introduce direct evidence of unreasonableness of procedures: In certain instances, inaccurate credit reports by themselves can fairly be read as evidencing unreasonable procedures....” Stewart v. Credit Bureau, Inc., 734 F.2d 47, 51-52 (D.C.Cir.1984) (internal citations omitted). It is not clear from the record the precise method or methods Defendant used to verify the accuracy of the Sears Account information contained in Mr. Barron’s consumer reports. In regard to the Sears Account, Defendant’s November 25, 1994 letter to Plaintiffs states that “[t]he disputed creditor(s) have confirmed that the information is being reported accurately....” (Mem., Ex. B.) Defendant also has submitted evidence that it “encouragefs]” creditors to use the “Metro Consumer Reporting Format.” (SuppLReply, Ex. A.) Hence, it appears that Defendant relies primarily on creditors to provide it with accurate consumer credit information. On the other hand, Plaintiffs contend that Defendant failed to verify basic information and that this" }, { "docid": "6997903", "title": "", "text": "premised on Trans Union’s alleged violation of two discrete FCRA obligations: to “follow reasonable procedures to assure maximum possible accuracy” of consumer reports, as required by 15 U.S.C. § 1681e(b), and to “conduct a reasonable reinvestigation” of information contained in a consumer report once that information is disputed by a consumer, as required by 15 U.S.C. § 1681i. For the reasons set forth below, this court recommends finding that Trans Union is not entitled to summary judgment, but rather is entitled to partial summary judgment as to both of Saenz’ claims to the extent premised on violation of Section 1681e(b) only. A. 15 U.S.C. § 1681e(b): Reasonable Procedures To Assure The Accuracy Of Consumer Reports The FCRA requires that consumer reporting agencies adopt and follow “reasonable procedures” to assure the “maximum possible accuracy” of consumer reports: Whenever a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates. 15 U.S.C. § 1681e(b). To survive a defense motion for summary judgment, an FCRA plaintiff alleging violation of Section 1681e(b) need only make a minimal presentation of evidence from which a trier of fact could conclude that the consumer reporting agency failed to follow reasonable accuracy-assuring procedures. As the Ninth Circuit has noted: In order to make out a prima facie violation under § 1681e(b), a consumer must present evidence tending to show that a credit reporting agency prepared a report containing inaccurate information. The FCRA does not impose strict liability, however-an agency can escape liability if it establishes that an inaccurate report was generated despite the agency’s following reasonable procedures. The reasonableness of the procedures and whether the agency followed them will be jury questions in the overwhelming majority of cases. Guimond v. Trans Union Credit Info. Co., 45 F.3d 1329, 1333 (9th Cir.1995) (citations and footnotes omitted; emphasis supplied); see also Crabill v. Trans Union, L.L.C., 259 F.3d 662, 664 (7th Cir.2001) (“The determination of the ‘reasonableness’ of the defendant’s procedures ... is treated as a factual question even when the underlying" }, { "docid": "6997904", "title": "", "text": "for summary judgment, an FCRA plaintiff alleging violation of Section 1681e(b) need only make a minimal presentation of evidence from which a trier of fact could conclude that the consumer reporting agency failed to follow reasonable accuracy-assuring procedures. As the Ninth Circuit has noted: In order to make out a prima facie violation under § 1681e(b), a consumer must present evidence tending to show that a credit reporting agency prepared a report containing inaccurate information. The FCRA does not impose strict liability, however-an agency can escape liability if it establishes that an inaccurate report was generated despite the agency’s following reasonable procedures. The reasonableness of the procedures and whether the agency followed them will be jury questions in the overwhelming majority of cases. Guimond v. Trans Union Credit Info. Co., 45 F.3d 1329, 1333 (9th Cir.1995) (citations and footnotes omitted; emphasis supplied); see also Crabill v. Trans Union, L.L.C., 259 F.3d 662, 664 (7th Cir.2001) (“The determination of the ‘reasonableness’ of the defendant’s procedures ... is treated as a factual question even when the underlying facts are undisputed. It therefore cannot be resolved on summary judgment unless the reasonableness or unreasonableness of the procedures is beyond question ...”); Cairns v. GMAC Mortg. Corp., 2007 WL 735564, *4, 2007 U.S. Dist. LEXIS 16689, *11 (D.Ariz.2007) (“prior to sending a section § 1681e(b) claim to the jury, a credit reporting agency can usually prevail only if a court finds, as a matter of law, that a credit report was accurate”) (emphasis original). Here, it is clear that Saenz has met his prima facie burden: the evidence establishes that his $512 NCO collection balance had been satisfied by compromise payment of $333 as of August 15, 2003, whereas Trans Union’s July 2004 credit report continued to list the balance as outstanding. Saenz argues, first, that under Guimond evidence sufficient to meet his prima facie burden necessarily creates a jury question as to the reasonableness of Trans Union’s accurracy-assuring procedures. This court disagrees. The Guimond language cited above could arguably be read, as Saenz appears to do, to interpret Section 1681e(b) as burden-shifting, so" }, { "docid": "16065350", "title": "", "text": "district court erred in granting summary judgment to CAI on his FCRA claims, we take up three issues: first, whether there is a material factual dispute concerning Dalton’s claims that CAI violated its duties under §§ 1681e(b) and 1681k; second, whether Dalton has proffered sufficient evidence to show that CAI’s violations were either negligent or willful; and third, whether we may affirm CAI’s summary judgment on the alternative ground (not relied upon by the district court) that Dalton has not suffered any damages due to CAI’s actions. A. Dalton’s first FCRA claim is that CAI followed unreasonable procedures in violation of § 1681e(b) when it prepared the report for Sumitomo about his criminal history. Section 1681e(b) provides that “[w]henever a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.” Thus, a consumer reporting agency violates § 1681e(b) if (1) the consumer report contains inaccurate information and (2) the reporting agency did not follow reasonable procedures to assure maximum possible accuracy. See, e.g., Guimond, 45 F.3d at 1333; Cahlin v. Gen. Motors Acceptance Corp., 936 F.2d 1151, 1156 (11th Cir.1991); Stewart v. Credit Bureau, Inc., 734 F.2d 47, 51 (D.C.Cir.1984). The district court concluded that CAI’s report to Sumitomo contained accurate information about Dalton’s criminal record and that CAI used reasonable procedures in preparing the report. The current record does not support these conclusions. CAI claimed in its motion for summary judgment, and the district court agreed, that CAI reported accurate information. Dalton, however, proffered specific facts that create a triable issue of fact on the question of accuracy. To make out a “violation under § 1681e(b), a consumer must present evidence tending to show that a credit reporting agency prepared a report containing inaccurate information.” Guimond, 45 F.3d at 1333. See also Washington v. CSC Credit Servs. Inc., 199 F.3d 263, 267 n. 3 (5th Cir.2000); Philbin v. Trans Union Corp., 101 F.3d 957, 964 (3d Cir.1996); Spence v. TRW, Inc., 92 F.3d 380, 382 (6th Cir.1996); Henson v. CSC Credit" }, { "docid": "17223094", "title": "", "text": "to impose any burden of reinvestigation on credit agencies, they have no bearing on this case. In any event, we do not subscribe to the restrictive interpretation of “maximum accuracy” in the Peller line of cases; we find more in line with congressional intent and purpose the position taken in Moore: [S]ection 1681e(b) of the Act, fairly read, would apply to consumer reports even though they may be technically accurate, if it is shown that such reports are not accurate to the maximum possible extent. The inquiry however would not end there. The statute does not flatly require maximum possible accuracy, only that the consumer reporting agency must follow reasonable procedures to assure such accuracy. Thus, the determination of this issue would seem to involve a balancing test. Under this approach, the court, in determining whether a violation of 1681e(b) has occurred, would weigh the potential that the information will create a misleading impression against the availability of more accurate [or complete] information and the burden of providing such information. Clearly the more misleading the information [i.e., the greater the harm it can cause the consumer] and the more easily available the clarifying information, the greater the burden upon the consumer reporting agency to provide this clarification. Conversely, if the misleading information is of relatively insignificant value, a consumer reporting agency should not be required to take on a burdensome task in order to discover or provide additional or clarifying data, and it should not be penalized under this section if the procedures used are otherwise reasonable. 553 F.Supp. at 952 (emphasis in original). Applying that interpretation in this case, we find that the district court’s dismissal of the Koropoulos’ claims by summary judgment on the grounds that the information in the report was technically accurate, regardless of any confusion generated in the recipients’ minds as to what it meant, was improper. We find there is a genuine issue of fact as to whether the report was sufficiently misleading so as to raise the issue of whether CBI’s procedures for assuring “maximum possible accuracy” were reasonable. The affidavit of plaintiffs’" }, { "docid": "6997906", "title": "", "text": "that it would fall to defendant to establish the reasonableness of its procedures once plaintiff established the inaccuracy of defendant’s report. However, a more parsimonious reading of both Guimond and Section 1681e(b) is that the burden of proof remains on the plaintiff, but is so minimal that in the “overwhelming majority of cases” a jury could infer the unreasonableness of a defendant’s procedures from the fact that those procedures permitted an inaccuracy to occur. Moreover, the statement that evidence of inaccuracy would be sufficient to survive summary judgment only in a majority of cases necessarily forecloses the burden-shifting interpretation. Properly understood, Guimond stands for the proposition that where — and only where — evidence of inaccuracy permits the conclusion that a consumer reporting agency’s accuracy-assuring procedures are unreasonable, such evidence is minimally sufficient to create a question of fact for jury determination. On the record before the court, however, the inaccuracy at issue here simply does not permit any inference as to the reasonableness of Trans Union’s procedures. As Saenz conceded in deposition testimony, at all material times NCO affirmatively maintained that the debt remained outstanding. Moreover, before Saenz disputed the NCO balance and thereby placed Trans Union on notice that NCO’s information might be inaccurate, Trans Union was entitled to rely on facially credible information it re ceived from Saenz’ creditors. See 16 C.F.R. 600, § 607.3(A) (“If a consumer reporting agency accurately transcribes, stores and communicates consumer information received from a source that it reasonably believes to be reputable, and which is credible on its face, the agency does not violate [Section 1681e(b) ] simply by reporting an item of information that turns out to be inaccurate”); see also, e.g., Henson v. CSC Credit Servs., 29 F.3d 280, 285-286 (7th Cir.1994); Cairns, 2007 WL 735564 at *5-6, 2007 U.S. Dist. LEXIS at *18-19. The inaccurate information that appeared in the Trans Union credit report was therefore not attributable to Trans Union’s Section 1681e(b) procedures. Saenz further argues that the reasonableness of Trans Union’s reinvestigations following Saenz’ two disputes of the NCO balance is material to the Section 1681e(b)" }, { "docid": "23031493", "title": "", "text": "inaccuracies [than a falsely reported, wage earner plan] can provide sufficient grounds for inferring that an agency acted negligently in failing to verify information.” Id. In an even broader holding, the Court of Appeals for the Ninth Circuit recently wrote: In order to make out a prima facie violation under § 1681e(b), a consumer must present evidence tending to show that a credit reporting agency prepared a report containing inaccurate information. The FCRA does not impose strict liability, however — an agency can escape liability if it establishes that an inaccurate report was generated despite the agency’s following reasonable procedures. Guimond, 45 F.3d at 1333 (emphasis added) (citation and footnote omitted); see also id. at 1334 (“Guimond has made out a prima facie case under § 1681e(b) by showing that there were inaccuracies in her credit report.”). Similarly, the Court of Appeals for the Eleventh Circuit wrote: In order to make out a prima facie violation of [§ 1681e(b)], the Act implicitly requires that a consumer must present evidence tending to show that a credit reporting agency prepared a report containing “inaccurate” information.... The Act, however, does not make reporting agencies strictly liable for all inaccuracies. The agency can escape liability if it establishes that an inaccurate report was generated by following reasonable procedures, which will be a jury question in the overwhelming majority of cases. Thus, prior to sending a [§ 1681e(b)] claim to the jury, a credit reporting agency can usually prevail only if a court finds, as a matter of law, that a credit report was “accurate. ” Cahlin, 936 F.2d at 1156 (emphasis added) (footnotes omitted). . The language from Guimond and Cahlin may be interpreted in two different ways. A broader reading is that, once a plaintiff demonstrates inaccuracies in a credit report, the burden shifts to the defendant to prove as an affirmative defense the' presence of reasonable procedures. But see Stewart, 734 F.2d at 51 n. 5 (citing 15 U.S.C. §§ 1681d(c) and 1681m(c) for the proposition that Congress “‘knew how1 to shift the burden of proof from plaintiff to defendant by explicitly" } ]

[ { "docid": "23565515", "title": "", "text": "April 7, 1972, the date of his release. Bryan brought an action in the Northern District of Texas seeking damages under 42 U.S.C. § 1983 for false imprisonment. The jury rendered a special verdict finding: (1) Sheriff Jones failed to make a reasonable and timely investigation of his legal authority to imprison Bryan after March 3, 1972. (2) Lena Giddens was not negligent in the preparation of the grand jury report of February 14, 1972. (3) The grand jury report of February 14, 1972 was the proximate cause of imprisonment of Bryan after March 3, 1972. (4) It could reasonably be anticipated by the District Attorney’s office that the Sheriff’s office would rely on the grand jury report of February 14, 1972, listing the case number and warrant number of the criminal charges pending against the plaintiff Bryan. (5) The Sheriff’s office did rely on that grand jury report. (6) The District Attorney or his employees were negligent in not advising the Sheriff that he had no authority to detain Bryan after March 3, 1972. (7) The failure to so advise the Sheriff was the proximate cause of Bryan’s imprisonment. (8) $40,000 would fairly and reasonably compensate Bryan for: (a) physical pain suffered after March 3, (b) mental anguish suffered after March 3, and (c) physical discomfort suffered by the plaintiff while in jail from March 3, 1972, to his release on April 7, 1972. (9) None of the defendants acted recklessly, or willfully and maliciously, and with a design to oppress and injure Bryan. The trial court granted judgment on the verdict of $40,000 against Sheriff Clarence Jones, but denied judgment against either District Attorney Henry Wade or against Lena Giddens. Sheriff Jones appealed charging error in failing to instruct the jury that good faith was a defense to the charge of false imprisonment and that it was error for the court to refuse to permit proof of Bryan’s pri- or imprisonment as evidence relevant to the issue of the amount of damages suffered. II. In Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 484, 5 L.Ed.2d" } ]

[ { "docid": "22194621", "title": "", "text": "the following Wednesday without being taken before a magistrate. Upon his release, he sued the sheriff of Wilbarger County for false imprisonment. The sheriff defended on the grounds that he had not taken part in the false arrest and, in fact, had not even known that the plaintiff was being held in the county jail until the day before plaintiff’s discharge. In an opinion approved by the Texas Supreme Court, the Commission of Appeals ruled that while the sheriff was not liable for the false arrest initiated by his deputy, he was liable in false imprisonment for failing to know the authority upon which his prisoner was held in the county jail: “Certainly when the sheriff finds out that a prisoner is confined in his jail, which the law makes him the keeper of, and holds him responsible for, it is his duty to know by what authority he is confined therein, and he cannot close his eyes and fail to make investigation and excuse himself on the ground of lack of knowledge * 12 S.W.2d at 123. In the case at bar Sheriff Kern is charged with the same statutory duty “to make investigation” as was the defendant in McBeath. As indicated by Article 5116 of the Texas Civil Statutes: “Each sheriff is the keeper of the jail of his county. He shall safely keep therein all prisoners committed thereto by lawful authority, subject to the order of the proper court, and shall be responsible for the safe keeping of such prisoners. The sheriff may appoint a jailer to take charge of the jail, and supply the wants of those therein confined; but in all cases the sheriff shall exercise a supervision and control over the jail.” The McBeath case demonstrates that the statutory obligations of a Texas sheriff are not amorphous ones. Conjoined with the statutory duty of a sheriff to protect his prisoners is the statutory duty to make investigation of the authority upon which they are held. Nothing is said in the statutes or in the Texas cases about a good faith defense or a defense" }, { "docid": "11676818", "title": "", "text": "(1976), concluded that the standard of reasonableness by which the availability of qualified immunity to an official would be gauged varied according to the degree of discretion that he exercised. Where a plaintiff alleges that he was imprisoned without valid authority, the court ruled that it would hold the jailer to a high standard of reasonableness since he exercises no discretion and is under relatively little time pressure. The court stated that If he negligently establishes a record keeping system in which errors of this kind are likely, he will be held liable. But if the errors take place outside of his realm of responsibility, he cannot be found liable because he has acted reasonably and in good faith. Id. at 1215. Texas Civil Code Ann. art. 5116 imposes a nondelegable duty upon a sheriff to incarcerate in the jail of his county only those individuals committed to his custody “by lawful authority, subject to the order of the proper court.” In Bryan v. Jones, Judge Brown noted in his concurring opinion that the Dallas County Jail, like the jails in other modern metropolitan areas, is a large facility with a daily jail population in excess of 1500 during the time defendant Jones was sheriff. Bryan v. Jones, 530 F.2d at 1215-16 (Brown, J., concurring). The large number of incarcerated persons about whom he must make decisions, while increasing his administrative burden, does not affect the scope of his narrow discretion to hold or release the individuals in his custody. We hold that to be entitled to qualified immunity from liability for false imprisonment under § 1983, Sheriff Jones and Deputy McCallum must present evidence of objective facts upon which they could have based a good faith, reasonable belief that they had the legal authority to continue to hold Douthit once he had satisfied the sentence imposed upon him in case number 73-5457. The mere statement that they believed in good faith that their actions were lawful will not suffice to establish the defense; they must present objective evidence showing the reasonableness of that belief to warrant submission of the" }, { "docid": "11676819", "title": "", "text": "County Jail, like the jails in other modern metropolitan areas, is a large facility with a daily jail population in excess of 1500 during the time defendant Jones was sheriff. Bryan v. Jones, 530 F.2d at 1215-16 (Brown, J., concurring). The large number of incarcerated persons about whom he must make decisions, while increasing his administrative burden, does not affect the scope of his narrow discretion to hold or release the individuals in his custody. We hold that to be entitled to qualified immunity from liability for false imprisonment under § 1983, Sheriff Jones and Deputy McCallum must present evidence of objective facts upon which they could have based a good faith, reasonable belief that they had the legal authority to continue to hold Douthit once he had satisfied the sentence imposed upon him in case number 73-5457. The mere statement that they believed in good faith that their actions were lawful will not suffice to establish the defense; they must present objective evidence showing the reasonableness of that belief to warrant submission of the issue of their good faith to the jury. At trial Sheriff Jones and Deputy McCal-lum testified that while they had no personal knowledge of Douthit’s case, the only basis on which they would have continued to confine him after he had served the sentence imposed upon him in case number 73-5457 was a commitment order issued by the clerk of the Dallas County Criminal Court. Both defendants testified that a commitment order was the only means by which the sheriff’s department could have learned of Douthit’s default on the prior costs judgments in cases 68-2591-C and 71-85-C, since it was not the practice of the sheriff’s office to attempt to ascertain the sentence imposed upon an individual in its custody by contacting the clerk’s office directly, by checking the minutes of the trial court, or by obtaining possession of the court records on which the trial court entered the judgment and sentence rendered against a defendant. Although the defendant officials. urged at oral argument that the entry of the costs judgments against Douthit on the" }, { "docid": "22283717", "title": "", "text": "was stationed out of eyesight and earshot of the bullpen. Smith responds that he was not deliberately indifferent primarily because he worked toward construction of a new jail which, he contends, was the only way to reduce the risk of violence. While any such efforts by Smith would appropriately be considered by a jury determining whether Smith was deliberately indifferent, such efforts would not necessarily absolve him or the County of liability. A jury could find that despite any efforts he made toward construction of the new jail, Smith was deliberately indifferent by disregarding “alternative means” or interim measures for reducing the risk of violence such as those advanced by Hale, see LaMarca, 995 F.2d at 1536. While consideration of alternatives available to Smith “comes perilously close to second-guessing the difficult choices that prison officials must face,” id. at 1538, such consideration “directly addresses the question of whether monetary restraints frustrated [Smith’s] good faith efforts, or whether he knowingly or recklessly disregarded solutions within his means,” id. We conclude that Hale produced sufficient evidence to go to a jury for a determination of whether Sheriff Smith and the County were deliberately indifferent under the facts presented. Finally, Hale was required to produce evidence of causation between Sheriff Smith’s deliberate indifference and Hale’s injury. More specifically, Hale was required to show two causal links: first, a link between Smith’s allegedly deliberately indifferent acts and omissions and the excessive risk of violence; and second, a link between the excessive risk of violence and his injury. Id. We have described the relationship between these two links as follows: If a plaintiff establishes a causal link between the defendant’s acts or omissions and the infirm condition, the defendant is precluded from contending that the unconstitutional condition was not at least a proximate cause of ... injuries that arose from that condition. This is not to say that a plaintiff need not show a causal link between the constitutionally infirm condition and the alleged injuries. Rather, the finding that a prison condition offends the Eighth Amendment presupposes the distinct likelihood that the harm threatened will" }, { "docid": "13319296", "title": "", "text": "in the court file. Miller was released and the same day the arrest warrant was cleared from SPWA. The Sheriff argues that Miller’s arrest was not caused by any unconstitutional practice of the Sheriff. The Sheriff argues that he is not responsible for the Clerk failing to deliver the Sheriffs copies of the quash and recall order. Miller argues that the Sheriff knew that the Clerk’s procedures for forwarding quash and recall orders to the Sheriff were deficient and that the Sheriff acted with deliberate indifference in failing to ensure that there was an adequate procedure for informing warrant clerks of the granting of quash and recall orders. Miller also argues that whether the Clerk forwarded the Sheriffs copies of the quash and recall order is immaterial because the Sheriff had actual knowledge of that order in that a Sheriffs employee provided Miller with his copy of the quash and recall order and it was the Sheriff who held Miller in custody for his seven-day sentence served at Cook County Jail. Miller was placed in the Sheriffs custody and Sheriffs employees actually had a copy of the quash and recall order. There is no procedure in place for clearing warrants based on the fact that the Sheriff has the person in his custody nor are County Jail personnel responsible for checking to see if warrants have been cleared for persons confined at the Jail. Under such circumstances, the Sheriffs office has actual knowledge that the warrant has been served and that the warrant no longer need be listed as active. Under those circumstances, failing to clear the warrant from the computer system so as to prevent rearrest on the same warrant would constitute deliberate indifference to the person’s rights absent there being another means for clearing the warrant. There are, however, other means. Bringing the arrestee to court after his or her arrest is the place where documents are to be generated to clear the warrant off the computer systems. Also having County Jail personnel generate such documents would be a duplication of effort and would only be applicable to" }, { "docid": "12203360", "title": "", "text": "care requests, and if the system fails in a way that causes a deprivation of needed health care, then the problem with the grievance system may be an important part of the plaintiffs case for deliberate indifference to his health care needs. See, e.g., Await v. Marketti, 74 F.Supp.3d 909, 936 (N.D. Ill. 2014) (denying government’s motion for summary judgment for deprivation of health care resulting in death where plaintiff offered evidence that Cook County Jail personnel routinely ignored medical grievances). Accordingly, delays in responses to Daniel’s grievances do not support an independent constitutional claim, but those delays may support Daniel’s other evidence that systemic problems at the Jail caused him to suffer injury as a result of official indifference. The evidence that such delays occurred further bolsters Daniel’s general claim of inadequate medical treatment. B. Proper Defendants Daniel’s suit names as defendants the Cook County Sheriffs Office, Cook County Sheriff Dart in his individual capacity, and Cook County itself. The Sheriffs Office argues that it cannot be liable for Daniel’s injuries because it was not responsible for his medical care. Instead, all treatment was to be handled by Cermak Health & Hospitals System, which is a medical facility separate from the Jail itself. But the constitutional duty under the Eighth and Fourteenth Amendments to provide adequate health care rests on the custodian. See Rice, 675 F.3d at 664-65. As the district court correctly noted, a government entity “cannot shield itself from § 1983 liability by contracting out its duty to provide medical services.” King, 680 F.3d at 1020; cf. Estelle, 429 U.S. at 103, 97 S.Ct. 285 (the government has “obligation to provide medical care for those whom it is punishing by incarceration”). There is also a close relationship between the Jail and Cermak. The Cermak facilities are physically located within the Jail, and Jail personnel are responsible for delivering patients to Cermak for care. Even if the care Daniel received at Cer-mak was inadequate, Daniel has offered evidence that the Sheriffs Office exacerbated the problems by failing to communicate with Cermak and failing to deliver Daniel to his" }, { "docid": "11467770", "title": "", "text": "relied, indicated Bryan continued under indictment on another charge, contrary to other records in the Sheriff’s office which disclosed this second charge was against a different person w' ' ■ a similar name. In answer to speci terrogatories the jury found, inter alia: (1) that the grand jury report was a proximate cause of Bryan’s imprisonment after March 3, but that defendant Giddens was not negligent in preparing the report; (2) that the Sheriff’s office relied on the report in imprisoning. Bryan after March 3; (3) that it could be reasonably anticipated by District Attorney Wade’s office that Sheriff Jones would rely on the report; (4) that Wade was negligent in failing to advise Jones that he had no legal authority to imprison Bryan after March 3, and that this negligence was a proximate cause of confinement thereafter; (5) that Sheriff Jones failed to make a reasonable and timely investigation into the legal authority to imprison Bryan after March 3; and (6) that Bryan suffered damages in the sum of $40,000. Following a judgment notwithstanding the verdict for District Attorney Wade, the court awarded judgment for $40,000 on the jury’s verdict against Sheriff Jones and, to the extent of its undertaking, against his surety. Sheriff Jones sought an instruction that good faith was a defense to Bryan’s claim of false imprisonment. The trial court’s refusal was predicated upon this court’s holding in Whirl v. Kern, 407 F.2d 781 (5th Cir.), cert. denied, 396 U.S. 901, 90 S.Ct. 210, 24 L.Ed.2d 177 (1969). Sheriff Jones and his surety contend that our subsequent decisions in Dowsey v. Wilkins, 467 F.2d 1022, 1025 (5th Cir. 1972) and Johnson v. Greer, 477 F.2d 101, 104-05 (5th Cir. 1973), authorize the instruction requested. While both eases contain language implying acceptance of the contrary view, neither decided the ultimate issue of the applicability of a good faith defense in a false imprisonment action. Dowsey involved a claim of false arrest intimately enmeshed with a short period of custody. In Johnson, which involved a claim of false imprisonment only, we concluded that defendant failed to establish that" }, { "docid": "11467769", "title": "", "text": "CLARK, Circuit Judge: Henry Lee Bryan brought this § 1983 action seeking monetary damages for false imprisonment against Clarence Jones, Sheriff of Dallas County, Texas, and his surety; and Henry Wade, District Attorney for Dallas County, Texas, and Lena Giddens, his employee. From a jury verdict the Sheriff and his surety appeal attacking the trial court’s refusal to instruct the jury that good faith was a defense to the charge of false imprisonment. Error is also asserted in the court’s refusal to permit proof of Bryan’s prior imprisonment relative to the damages claimed. We hold the refusal to instruct was not error but that the bar to proof was and accordingly vacate the judgment and remand for a new trial on the issue of damages only. Bryan was imprisoned on February 14, 1972 on a charge of automobile theft. This charge was dismissed on March 3, 1972 but Bryan was not released until April 7, 1972, some 36 days later. An error in defendant Giddens’ preparation of a grand jury report, upon which Sheriff Jones relied, indicated Bryan continued under indictment on another charge, contrary to other records in the Sheriff’s office which disclosed this second charge was against a different person w' ' ■ a similar name. In answer to speci terrogatories the jury found, inter alia: (1) that the grand jury report was a proximate cause of Bryan’s imprisonment after March 3, but that defendant Giddens was not negligent in preparing the report; (2) that the Sheriff’s office relied on the report in imprisoning. Bryan after March 3; (3) that it could be reasonably anticipated by District Attorney Wade’s office that Sheriff Jones would rely on the report; (4) that Wade was negligent in failing to advise Jones that he had no legal authority to imprison Bryan after March 3, and that this negligence was a proximate cause of confinement thereafter; (5) that Sheriff Jones failed to make a reasonable and timely investigation into the legal authority to imprison Bryan after March 3; and (6) that Bryan suffered damages in the sum of $40,000. Following a judgment notwithstanding" }, { "docid": "8131546", "title": "", "text": "action the reasonable good faith of the sheriff comes into play only as a defense. To make out a prima facie case, a plaintiff need show only: (1) intent to confine; (2) acts resulting in confinement; and (3) consciousness of the victim of confinement or resulting harm. 530 F.2d at 1213, citing Restatement (2d) Torts § 35 (1965). There can be no doubt that the sheriff’s deputies intended to confine and did confine the plaintiff. Similarly, there can be no doubt that plaintiff was aware of the fact that he was being held in jail. Since the deputies’ actions were authorized by Sheriff Baker and the same actions were in keeping with the policies of the Potter County Sheriff’s Department at that time, plaintiff established his prima facie case against Sheriff Baker. See Jennings v. Patterson, 460 F.2d 1021 (5th Cir. 1972). Cf. Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976) (supervisory officials not subject to injunction under section 1983 where no showing that they authorized or approved lower officials’ misconduct). Assuming arguendo that the actions and intent of the deputies are not properly attributable to the sheriff, on the facts of this case plaintiff was entitled to go to the jury on the basis of Sheriff Baker’s own action or inaction. To incur liability under section 1983 a state official need not directly subject a person to a deprivation of his constitutional rights. The language of the statute and the holdings of this court make clear that he can be held liable if he causes the plaintiff to be subjected to a deprivation of his constitutional rights. See Sims v. Adams, 537 F.2d 829 (5th Cir. 1976). Sheriff Baker’s failure to require his deputies to transmit the identifying material described above “caused” plaintiff’s continued detention. Plaintiff has made out a prima facie case under Bryan, and Sheriff Baker can escape liability only if he acted in reasonable good faith. As the court said in Bryan, “[i]f [the sheriff] negligently establishes a . system in which errors of this kind are likely, he will be" }, { "docid": "11676820", "title": "", "text": "issue of their good faith to the jury. At trial Sheriff Jones and Deputy McCal-lum testified that while they had no personal knowledge of Douthit’s case, the only basis on which they would have continued to confine him after he had served the sentence imposed upon him in case number 73-5457 was a commitment order issued by the clerk of the Dallas County Criminal Court. Both defendants testified that a commitment order was the only means by which the sheriff’s department could have learned of Douthit’s default on the prior costs judgments in cases 68-2591-C and 71-85-C, since it was not the practice of the sheriff’s office to attempt to ascertain the sentence imposed upon an individual in its custody by contacting the clerk’s office directly, by checking the minutes of the trial court, or by obtaining possession of the court records on which the trial court entered the judgment and sentence rendered against a defendant. Although the defendant officials. urged at oral argument that the entry of the costs judgments against Douthit on the court’s records sufficed to authorize his incarceration, they cannot rely on that fact to establish their immunity in the absence of any contention or proof that they acted in reliance on such records on October 31, 1973, when they determined to continue Douthit’s incarceration. Thus to establish their entitlement to qualified immunity, Jones and McCallum had to present evidence of objective facts warranting a good faith, reasonable belief on their part that on October 31, 1973, they had a valid commitment order authorizing Douthit’s continued confinement. The proof that the defendants presented to show the existence of such a commitment order consisted of the two commitments dated November 30, 1973, by the clerk of the Dallas County Criminal Court and records prepared by the Dallas County Jail about Douthit. The clerk of the Dallas County Criminal Court testified that the only documents contained in the court records authorizing Douthit’s imprisonment during November, 1973, were the two commitment orders dated November 30, 1973. Both defendants suggested in their testimony that either the date entered by the" }, { "docid": "11676826", "title": "", "text": "courts by granting a qualified immunity from liability for false imprisonment to a jailer who could demonstrate that he acted in reasonable good faith. The Texas courts have clearly held that to prevail against allegations that he falsely imprisoned an individual a sheriff or jailer must show that he acted under lawful authority. Foust v. Ford, 209 S.W.2d 941, 942 (Tex.Civ.App.1948); Smith v. Burdett, 114 S.W.2d 384, 385 (Tex.Civ.App.1938). Proof that the defendant sheriff acted in good faith, while relevant to the issue of whether the plaintiff can recover punitive damages, will not enable him to avoid liability under Texas common law for the unlawful imprisonment of an individual. Whirl v. Kern, 407 F.2d at 793-96; Hall v. O’Malley, 49 Tex. 70 (1878); Newburn v. Durham, 10 Tex.Civ.App. 655, 32 S.W. 112 (1895). Therefore, the district court erred in failing to instruct the jury on Douthit’s common law false imprisonment claim and in granting judgment on that claim to Sheriff Jones and Deputy McCallum based upon the jury’s finding that they had acted in good faith. Jones and McCallum could avoid liability only by showing that they had a lawful basis for incarcerating Douthit prior to his confinement, which, as our discussion in part II indicates, they failed to do. IV. Douthit’s Other Allegations of Error On this appeal Douthit also contends that the judgment rendered below must be reversed on the grounds that the jury was impaneled so as to exclude poor persons, blacks, and Mexicans; that the trial judge exhibited bias against him; that his appointed trial counsel were ineffective; that the defendants committed perjury and withheld material evidence; and that the trial judge improperly allowed the defend ants to introduce into evidence his past and present criminal record. Upon an examination of the record we conclude that with the exception of the introduction of Douthit’s criminal record, these allegations are without merit. Douthit did not challenge the makeup of the jury at trial, and nothing in the record supports his allegation that certain groups were excluded from the jury. He has failed to satisfy his burden of" }, { "docid": "6270727", "title": "", "text": "asked Jail officials about his release. For example, West asked Defendant Goode to check on his release on at least two occasions. In response to one request on or before 19 December, Goode called the records department to inquire about West’s release. Defendant Davis, a records specialist, requested another copy of the order from the court and entered that order into the system; but again, the jail card did not reach the docket room. On 27 December, in response to another inquiry by West, Goode consulted the system and told West he should have been released on 19 December. West was released on 27 December. Rainey was incarcerated on 31 October 2002, on robbery charges. The grand jury no-billed him on 27 March 2003, and the court order for his release was sent to the Jail that day. A records specialist— “thought” to be Defendant Wallace — entered the order into the system but failed to deliver the jail card. Although Rainey allegedly asked Jail officials about his release from time to time, he was not released until 24 May 2003. Plaintiffs filed this joint suit under 42 U.S.C. § 1983 against Sheriff Tillman in his official and individual capacities and against the remaining Defendants in their individual capacities, alleging — among other things — that (1) Goode, Davis, Whit-ton, and Wallace (the “Nonsupervisory Defendants”) were deliberately indifferent to Plaintiffs’ Fourteenth Amendment due process rights when they failed to bring about Plaintiffs’ release from custody; (2) Lt. Mitchell, Sheriff Tillman, and Deputy Warden Owens (the “Supervisory Defendants”) were liable for the violation because they failed to staff adequately, supervise, and train the records staff at the Jail; and (3) Sheriff Tillman’s release policies (or lack thereof) were unconstitutional under the Fourteenth Amendment Due Process Clause. Defendants moved for summary judgment on the basis of qualified immunity. The district court granted the motion, con-eluding that Plaintiffs failed to present sufficient evidence that Defendants were deliberately indifferent to Plaintiffs’ rights. In the order, the district court noted that a page in one of Plaintiffs’ affidavits was missing from the record. Plaintiffs moved" }, { "docid": "7593885", "title": "", "text": "Such wrongs may, for example, arise from “official policy,” that is to say, “acts which the municipality has officially sanctioned or ordered.” Pembaur, 475 U.S. at 479-80, 106 S.Ct. 1292. It is also well established that legislative action is not needed to create official policy; the act of an ultimate municipal decision-maker suffices. Id. at 480, 106 S.Ct. 1292. See also Radie v. Chicago Transit Auth., 73 F.3d 159, 161 (7th Cir.1996). Thus, Luck’s official capacity claim against Sheriff Roven-stine can survive summary judgment if Luck can show (1) that Sheriff Rovenstine was an official with authority to establish municipal policy, and (2) that there is a genuine issue of material fact whether Sheriff Rovenstine’s actions caused the violation of Luck’s right to be free from unconstitutional detention. The district court concluded that Sheriff Rovenstine was not a municipal decision-maker and that the county could be liable only if it expressly ratified Sheriff Roven-stine’s decisions. The court was in error in this regard, as the sheriff concedes. Indiana Code § 36-2-13-5(a) provides without further qualification that it is the sheriffs duty to take care of the jail and its prisoners. Thus, the sheriffs actions are not subject to any further scrutiny or ratification by the county, and the sheriff serves as the county’s official decision-maker in matters involving the county jail. See also Armstrong, 152 F.3d at 577 (addressing an official capacity claim against an Indiana sheriff). Although he acknowledges his status as a county decision-maker and the jail’s caretaker, Sheriff Rovenstine contends that he has no duty to ensure that detainees arrested without a warrant receive a probable cause hearing or gain release. Sheriff Rovenstine believes that someone else, perhaps the arresting officer or the prosecutor, is responsible for the period of confinement between a warrantless arrest and a judicial determination of probable cause. We find unconvincing the sheriffs attempt to shrug off his federal constitutional responsibilities toward detainees confined in the Kosciusko County Jail who have not yet had a probable cause hearing. In the somewhat different context of a claim for a substantive due process violation after" }, { "docid": "22885799", "title": "", "text": "Fourth and Fourteenth Amendment rights because they had failed to file a specific charge against the plaintiff and had continued to confine the plaintiff for approximately three hours without probable cause. The findings of fact made by the district court can only be set aside if they are clearly erroneous. Rule 52(a), Federal Rules of Civil Procedure; Armstrong v. Brennan, 539 F.2d 625, 634 (7th Cir. 1976). Based upon the following examination of the evidence with respect to the plaintiff’s arrest and confinement, we conclude that these findings are clearly erroneous and we therefore reverse the judgment of the district court imposing liability on the defendants for violations of the plaintiff’s rights under the Fourth and Fourteenth Amendments. Generally, a jailer is liable for the illegal detention of an inmate when he unreasonably detains the inmate for arraignment or release, or possesses an affirmative knowledge of the illegality of the arrest. But if the errors upon which liability is asserted take place beyond the scope of his responsibility, he cannot be found liable where he has acted reasonably and in good faith. See, e. g., Bryan v. Jones, 530 F.2d 1210, 1215 (5th Cir. 1976). In the case at bar, the evidence adduced at trial clearly showed that defendants Worachek and Goulet acted reasonably and in good faith with respect to the detention of the plaintiff, and without an affirmative knowledge that the plaintiff’s arrest had been unlawful. The evidence showed that the violation of the plaintiff’s constitutional right not to be confined without probable cause occurred at the time of his arrest at the Water Tower Park and his subsequent custodial transmittal to the City Jail, and therefore prior to the time he came into contact with the jailers. It was not the obligation of the jailers to determine whether or not probable cause existed for his arrest. The jailers did not perform any discretionary function, but merely acted in a strictly ministerial capacity with respect to the plaintiff. The booking procedure operative at the City Jail simply required them to determine the identity of the arresting officer and" }, { "docid": "22194622", "title": "", "text": "S.W.2d at 123. In the case at bar Sheriff Kern is charged with the same statutory duty “to make investigation” as was the defendant in McBeath. As indicated by Article 5116 of the Texas Civil Statutes: “Each sheriff is the keeper of the jail of his county. He shall safely keep therein all prisoners committed thereto by lawful authority, subject to the order of the proper court, and shall be responsible for the safe keeping of such prisoners. The sheriff may appoint a jailer to take charge of the jail, and supply the wants of those therein confined; but in all cases the sheriff shall exercise a supervision and control over the jail.” The McBeath case demonstrates that the statutory obligations of a Texas sheriff are not amorphous ones. Conjoined with the statutory duty of a sheriff to protect his prisoners is the statutory duty to make investigation of the authority upon which they are held. Nothing is said in the statutes or in the Texas cases about a good faith defense or a defense of non-negligence to a suit for unlawful incarceration. Good faith may clear the conscience, but it does not redeem or purge the act. Kern reads Article 5116 of the Texas Civil Statutes as if he had no duty to determine the authority upon which his prisoner was held. But the duty to release is absolute if no such authority exists, and such duty cannot be conditioned on notice, solicitation, ignorance or blindness. Ignorance of the law is traditionally no excuse, even when a man’s own liberty is at stake. Should it be a defense for officers of the law whose sworn duty it is to protect the liberty of others? Are a sheriff’s statutory obligations to be effective only when he acts in willful disobedience of his official responsibilities? The evidence is undisputed that Kern could have known of the dismissal of charges against Whirl had he only made inquiry. But inquiry he did not make, and as a consequence Whirl, quasi-literate and one legged, languished in jail for nine months after he was entitled" }, { "docid": "22098922", "title": "", "text": "on the premises on a regular basis, or speedy access to the same.” However, Thompkins adduced no evidence whatever that the jail’s treatment system had ever actually failed to deliver necessary and appropriate medical care to any other inmate, or that the sheriff was otherwise actually informed or consciously believed that the policy would expose prisoners to substantial risk of significantly unmet serious medical needs, and we find in the record no substantial evidence that the jail’s policy for inmate medical treatment was constitutionally defective during the time Thompkins was incarcerated there. Accordingly, we conclude that Sheriff Belt cannot be held liable on the theory that he implemented an unconstitutional policy when the record below indicates no more than that the system may have failed in the one particular instance of Thompkins’ back injury. We observe that Thompkins elected to bring suit only against Sheriff Belt personally and did not name as defendants other members of the sheriff’s staff. Because misconduct of Sheriff Belt’s employees cannot be imputed to the sheriff individually, and because the findings and conclusions of the district court do not disclose what Sheriff Belt personally did wrong, if anything, we cannot affirm the judgment against him and so vacate the judgment and remand for further findings of fact. We further direct that judgment for defendants be entered if the district court determines that Sheriff Belt was not aware of Thompkins’ back condition and his requests for medical treatment during the period in question. C. American Druggist Insurance Company American Druggist Insurance Company complains that the district court erred in refusing to amend the judgment to delete it as a liable defendant after it so moved under Rule 59, Fed.R.Civ.P. Because our remand of this case may result in a finding that no liability exists on the part of the sheriff, we need not address the merits of this issue. We observe, however, that one attorney purports to represent Sheriff Belt as well as American Druggist (which claims its liability coverage of the sheriff ended , in August 1983) and yet another insurer (which this attorney claims" }, { "docid": "8131545", "title": "", "text": "to Dallas or had the identifying information in the file at the sheriff’s office been checked, the mistake would have been evident. Although plaintiff is Leonard’s brother, he does not resemble Leonard in appearance. The leading case in the Fifth Circuit on a sheriff’s liability for false imprisonment un der section 1983 is Bryan v. Jones, 530 F.2d 1210 (5th Cir.) (en banc), cert. denied, 429 U.S. 865, 97 S.Ct. 174, 50 L.Ed.2d 145 (1976). The court, sitting en banc, held that a sheriff has the kind of qualified immunity which the Supreme Court has recognized in certain other public officials. See Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975); Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). Under Bryan a sheriff is not liable under section 1983 if he acted in good faith and he acted reasonably. 530 F.2d at 1215. Bryan made clear that in a section 1983 false imprisonment action the reasonable good faith of the sheriff comes into play only as a defense. To make out a prima facie case, a plaintiff need show only: (1) intent to confine; (2) acts resulting in confinement; and (3) consciousness of the victim of confinement or resulting harm. 530 F.2d at 1213, citing Restatement (2d) Torts § 35 (1965). There can be no doubt that the sheriff’s deputies intended to confine and did confine the plaintiff. Similarly, there can be no doubt that plaintiff was aware of the fact that he was being held in jail. Since the deputies’ actions were authorized by Sheriff Baker and the same actions were in keeping with the policies of the Potter County Sheriff’s Department at that time, plaintiff established his prima facie case against Sheriff Baker. See Jennings v. Patterson, 460 F.2d 1021 (5th Cir. 1972). Cf. Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976) (supervisory officials not subject to injunction under section 1983 where no showing that they authorized or approved lower officials’" }, { "docid": "3860872", "title": "", "text": "no vigilance was exercised to prevent the escape. All this evidence is amply sufficient upon which to base the five findings of fact, made by the judge below, against the appellant. Chapter 7, aid. 8, § 2, of the Official Code of West Virginia provides as follows: “§ 2. Jailer; Care of Jail. — The sheriff of every county shall be the keeper of the jail thereof, but he may, with the assent of the county court, appoint a jailer of the said county, and may take from him a bond with security conditioned for the faithful performance of his duties. The jailer may be a deputy sheriff and alia 11 take an oath of office like other officers. He shall keep the jail in a clean and sanitary condition, and shall furnish each prisoner with wholesome and sufficient food, and with clean and sufficient bedding. The jail shall be heated when proper. When any prisoner is sick the jailer shall see that he has adequate medical attention and nursing, and so far as possible keep him separate from other prisoners. A failure on the part of the jailer to perform any of the duties herein required with respect to any prisoner in his jail shall be a contempt of any court of record under whose commitment such prisoner is confined, and shall bo punished as other contempts of such court.” Section 8 of the same article provides that: “§ 8. Federal Prisoners. — The jail of any county may he used for the confinement of persons -committed thereto under the laws of the United Slates. The jailer thereof shall receive, keep and discharge such persons pursuant to the- commitment, as provided in the laws of the United States. ® \"* * ” In the ease of State v. Cyrus, 83 W. Va. 30, 97 S. E. 412, it is held that the sheriff is charged with the absolute duty of keeping prisoners in jail and for Ms failure to do so is answerable to the court committing the prisoners. In the case of United States v. Hoffman (D. C.)" }, { "docid": "22194643", "title": "", "text": "bound to know the purpose for which any person confined therein is so confined. He cannot escape his obligations in this respect by placing the prison in the keeping, of others. If he does so, such others are his agents and he is responsible for their acts.” . Workman v. Freeman, 1956, 155 Tex. 474, 289 S.W.2d 910, and its predecessors are not inconsistent with this result. Liability in those cases was not predicated upon the sheriff’s jailhouse responsibilities. Thus the court in Workman was careful to point out that the suit against the sheriff was for acts of brutality committed by the deputies, and not for false imprisonment. The court also noted that there were no allegations “that the sheriff was guilty of any undue delay the next morning in finding out the facts about Workman’s being in jail or in taking such appropriate action as the facts required.” 289 S.W.2d 910, 912. Such language reinforces the holding in McBeath by suggesting that had false imprisonment been involved in Workman, an “undue delay” by the sheriff in finding out the facts about his prisoner would have resulted in liability. Certainly an unlawful detention lasting for nine months involves, as a matter of law, an “undue delay.” . Since Whirl was lawfully in jail subsequent to his arrest and prior to the dismissal of the indictments against him, apportionment of his claim for the deprivation of the artificial leg would seem appropriate. If the jury finds that the leg was taken from him pursuant to the enforcement of a reasonable rule of jail discipline, then Whirl’s recovery for the loss of his artificial leg should be reduced by an amount proportionate to the time he was lawfully in jail. . The harm intended by a tortfeasor in committing an act of false imprisonment is not the intent to wrongfully confine, but simply the intent to cause the confinement. Restatement of Torts, Second, § 44 (1965). Judge Clayton, the third judge constituting the court, participated in the hearing and the decision of this case. The present opinion is rendered by a" }, { "docid": "11786399", "title": "", "text": "and collateral estoppel are inapplicable under the circumstances of this case. IMMUNITY Defendant’s argument that he is immune from suit and liability is rejected. A sheriff enjoys no more immunity than a police officer when his conduct, under color of law, is wrongful under 42 U.S.C. § 1983. Cf. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L. Ed. 288 (1967); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Hampton v. City of Chicago, Cook County, Illinois, 484 F.2d 602 (7th Cir. 1973). The language of § 1983 which says “every person” includes a sheriff. Only those whose immunity was “solidly established at common law” are immune from suit under § 1983. Pierson v. Ray, supra. In an attempt to bring this case within the folds of a quasi-judicial immunity setting (see Hampton v. City of Chicago, Cook County, Illinois, supra; Robichaud v. Ronan, 351 F.2d 533 (9th Cir. 1965)), defendant argues in his brief in support of his motion for directed verdict on damages that he acted in furtherance of a court order placing plaintiff in his custody and his duty to insure plaintiff’s availability at trial. He contends that he placed plaintiff in solitary confinement to prevent him from escaping and so that he would not receive from various sources the tools necessary to effectuate an escape. Thus, he argues, he acted merely as an arm of the court and should be afforded quasi-judicial immunity. Defendant’s position that he placed plaintiff in solitary confinement as a disciplinary action for a jail rule infraction makes his qua si-judicial claim incredible. This court finds as a fact that defendant placed plaintiff in the solitary cell as a disciplinary action and not as a means to prevent an escape. Accordingly, as a conclusion of law, this court finds that the defendant is not entitled to quasi-judicial immunity. GOOD FAITH AND PROBABLE CAUSE This is not to say, however, that the sheriff is not entitled to raise the defense of “good faith and probable cause,” which he does. However, as was pointed out in Hampton," } ]

[ { "docid": "18943784", "title": "", "text": "PER CURIAM. The judgment of the District Court is affirmed upon the authority of Swihart v. Johnston, 9 Cir., 150 F.2d 721; Garrison v. Johnston, 9 Cir., 151 F.2d 1011; Wilson v. Johnston, 9 Cir., 154 F.2d 111." } ]

[ { "docid": "15896440", "title": "", "text": "406 U.S. 404, 410, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972) (plurality opinion); Williams v. Florida, 399 U.S. 78, 99-100, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970). . Apodaca v. Oregon, 406 U.S. 404, 410, 92 S.Ct. 1628, 1632, 32 L.Ed.2d 184 (1972) (plurality opinion), quoting Duncan v. Louisiana, 391 U.S. 145, 156, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), and Williams v. Florida, 399 U.S. 78, 100, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970). Accord, Ludwig v. Massachusetts, - U.S. -, 96 S.Ct. 2781, 49 L.Ed.2d 732 (1976); Taylor v. Louisiana, 419 U.S. 522, 530, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). . The guarantee is certainly more easily utilized in federal than in state prosecutions, since it is not obvious that there is a geographical unit at the state level that corresponds to the “district” on the federal level. See Bradley v. Judges of the Superior Ct., 531 F.2d 413, 417 n. 10 (9th Cir. 1976); People v. Jones, 9 Cal.3d 546, 550-51, 108 Cal.Rptr. 345, 348-49, 510 P.2d 705, 708-09 (1973). Cf. United States v. Wilson, 28 F.Cas. p. 699, 717 (No. 16,730) (C.C. E.D.Pa.1830), appeal dismissed, 32 U.S. (7 Pet.) 149, 8 L.Ed. 640 (1833); Maryland v. Brown, 295 F.Supp. 63, 80-81 (D.Md.1969). . Salinger v. Loisel, 265 U.S. 224, 232, 44 S.Ct. 519, 68 L.Ed. 989 (1924). . Ruthenberg v. United States, 245 U.S. 480, 482, 38 S.Ct. 168, 62 L.Ed. 414 (1918). . Platt v. Minnesota Mining & Mfg. Co., 376 U.S. 240, 245, 84 S.Ct. 769, 11 L.Ed.2d 674 (1964); Johnston v. United States, 351 U.S. 215, 220-21, 76 S.Ct. 739, 100 L.Ed. 1097 (1956); United States v. Anderson, 328 U.S. 699, 705, 66 S.Ct. 1213, 90 L.Ed. 1529 (1946); Haas v. Henkel, 216 U.S. 462, 473, 30 S.Ct. 249, 54 L.Ed. 569 (1910). . Barrett v. United States, 169 U.S. 218, 228-29, 18 S.Ct. 327, 42 L.Ed. 723 (1898); United States v. Brown, 535 F.2d 424 (8th Cir. 1976); Franklin v. United States, 384 F.2d 377, 378 (5th Cir. 1967), cert. denied, 390 U.S. 954, 88 S.Ct. 1048, 19 L.Ed.2d 1147 (1968);" }, { "docid": "22829551", "title": "", "text": "977, 979, 82 A.L.R. 417; Board of Education, etc., v. Woodmen of the World, 10 Cir., 77 F.2d 31, 34; Federal Deposit Ins. Corporation v. Tremaine, 2 Cir., 133 F.2d 827, 830; Securities and Exchange Commission v. C. M. Joiner Leasing Corp., 320 U.S. 344, 350, 64 S.Ct. 120, 83 L.Ed. 88; Warren v. United States, 10 Cir., 177 F.2d 596. . Western Distributing Co. v. Public Serv ice Commission, 10 Cir., 58 F.2d 239, 241; Shell Pipe Line Co. v. Robinson, 10 Cir., 66 F.2d 861, 863; Constantine v. United States, 5 Cir., 75 F.2d 928, 931; Panama R.R. Co. v. Johnson, 264 U.S. 375, 390, 44 S.Ct. 391, 68 L.Ed. 748; Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 470, 65 S.Ct. 1384, 89 L.Ed. 1725. . See Walker v. Johnston, 312 U.S. 275, 284, 61 S.Ct. 574, 85 L.Ed. 830. , Hamilton v. Henderson, 232 Mo.App. 1234, 117 S.W.2d 379, 383. . Cf. Price v. Johnston, 334 U.S. 266, 278, 68 S.Ct. 1049, 92 L.Ed. 1356, and Bell v. United States, 5 Cir., 129 F.2d 290. . Engels v. Amrine, 155 Kan. 385, 125 P.2d 379, 380; Ex parte Tail, 144 Neb. 820, 14 N.W.2d 840, 842, Id., 145 Neb. 268, 16 N.W.2d 161, 163; Ex parte Tremper, 126 N.J.Eq. 276, 8 A.2d 279, 283; Ex parte Tuvell, 301 Mo. 251, 256 S.W. 463. . Goto v. Lane, 265 U.S. 393, 401, 44 S. Ct. 525, 68 L.Ed. 1070; Salinger v. Loisel, 265 U.S. 224, 231, 44 S.Ct. 519, 68 L. Ed. 989; United State's ex rel. Johnston v. Carey, 7 Cir., 141 F.2d 967, 968; Ex parte Tremper, 126 N.J.Eq. 276, 8 A.2d 279, 283. . See Price v. Johnson, 334 U.S. 266, 289, 68 S.Ct. 1049, 92 L.Ed. 1356. . See 39 C.J.S., Habeas Corpus, § 105, p. 698. . Martin v. Hiatt, 5 Cir., 174 F.2d 350, 352, 353. HUXMAN, Circuit Judge (dissenting). The decision in these two cases turns upon a construction of Section 2255, Title 28, U.S.C.A. While the question is not free from doubt, I find myself unable to" }, { "docid": "12984984", "title": "", "text": "PER CURIAM. The appellant admits that the instant petition is his fifteenth application for a writ of habeas corpus filed before Federal Courts in the Ninth Circuit, and that in it he alleges nothing other than that which he has heretofore urged as a ground for his release. The order of the court below denying the petition for a writ of habeas corpus is affirmed, upon the authority of Salinger v. Loisel, 265 U.S. 224, 230, 231, 44 S.Ct. 519, 68 L.Ed. 989; Waley v. Johnston, 9 Cir., 139 F.2d 117, certiorari denied, 321 U.S. 779, 64 S.Ct. 617, 88 L.Ed. 1072, rehearing denied, 321 U.S. 804, 64 S. Ct. 845, 88 L.Ed. 1090; Swihart v. Johnston, 9 Cir., 150 F.2d 721, 722, certiorari denied, 327 U.S. 789, 66 S.Ct. 803, 90 L.Ed. 1016; Garrison v. Johnston, 9 Cir., 151 F.2d 1011, 1013, certiorari denied, 328 U.S. 840, 66 S.Ct. 1009, 90 L.Ed. 1615; Wilson v. Johnston, 9 Cir., 154 F.2d 111, certio-rari denied, 328 U.S. 872, 66 S.Ct. 1366, 90 L.Ed. 1642; McMahan v. Johnston, 9 Cir., 157 F.2d 915, certiorari denied, 331 U.S. 813, 67 S.Ct. 1197." }, { "docid": "22444083", "title": "", "text": "of law, except on constitutional grounds or other special exceptions, none of which is present in this case. Taylor v. Taintor, 16 Wall. 366, 83 U.S. 366, 21 L.Ed. 287; Covell v. Heyman, 111 U.S. 176, 4 S.Ct. 355; Ponzi v. Fessenden, 258 U.S. 254, 42 S.Ct. 309; Stamphill v. Johnston, 9 Cir., 136 F.2d 291, certiorari denied 320 U.S. 766, 64 S.Ct. 70. . Where relator was surrendered from federal detention to the state for electrocution, the court said: “Obviously, he has actually the greatest possible interest in serving the remainder of his federal sentence, and the only question Is whether that is an interest which the law recognizes : i. e., whether it is a ‘right.’ It is not; * * * lie has been deprived of nothing to which he was entitled; if the United States has been so deprived, he may not vicariously assert its rights.” United States ex rel. Buchalter v. Warden of Sing Sing Prison, 2 Cir., 141 F.2d 259-260. . Had California, upon request, returned Schmittroth to the Marshal, he could not “complain if one sovereignty waives its strict right to exclusive custody of him for vindication of its laws.” Powell v. Sanford, 5 Cir., 156 F.2d 355, 356. . Vanover v. Cox, 8 Cir., 136 F.2d 442, 443-444, certiorari denied 320 U.S. 779, 64 S.Ct. 93, 88 L.Ed. 468. This view is restated in Stamphill v. Johnston, 9 Cir., 136 F.2d 291, 292, certiorari denied 320 U.S. 766, 64 S.Ct. 70, 88 L.Ed. 457. . Ponzi v. Fessenden, 258 U.S. 254, 260, 42 S.Ct. 309; United States ex rel. Moore v. Traeger, 9 Cir., 44 F.2d 312, 313; Cato v. Smith, 9 Cir., 104 F.2d 885, 886, certiorari denied 308 U.S. 608, 60 S.Ct. 177, 84 L.Ed. 508; Kirk v. Squier, 9 Cir., 150 F.2d 3, 8, certiorari denied 326 U.S. 775, 66 S.Ct. 265, 90 L.Ed. 469; Gunton v. Squier, 9 Cir., 185 F.2d 470, 471; Wall v. Hudspeth, 10 Cir., 108 F.2d 865, 866; Lunsford v. Hudspeth, 10 Cir., 126 F.2d 653, 655; Stamphill v. United States, 10 Cir., 135" }, { "docid": "8631083", "title": "", "text": "great weight and credence in determining whether, in the last analysis, the petitioners had been accorded due process in the state courts. Wong Doo v. United States, 265 U.S. 239, 44 S.Ct. 524, 68 L.Ed. 999; Wells v. United States, 318 U.S. 257, 63 S.Ct. 582, 87 L.Ed. 746; Salinger v. Loisel, 265 U.S. 224, 44 S.Ct. 519, 68 L.Ed. 989; Cobb v. Hunter, supra; Pope v. Huff, 79 U.S.App.D.C. 18, 141 F.2d 727; Garrison v. Johnston, 9 Cir., 151 F.2d 1011. Any other procedure would require the Federal courts to retry every criminal case in the state courts, where due process is challenged. Our duty to safeguard the supremacy of the constitutional command does not go that far. Petitioners complain that the trial court, in accepting the verity of the Oklahoma Court’s factual adjudications, referred to and relied upon an affidavit of the sentencing court, which they allege was not a part of the record before the Oklahoma appellate court, and contend in effect that the court’s judgment is based upon ex parte evidence which they did not have an opportunity to refute. The fallacy of this contention is that the trial court’s judgment does not rest on the probative value, or the admissibility of the evidence forming the basis of the Oklahoma court’s judgment. Rather, it is based upon the controlling weight accorded a judgment of a court of competent jurisdiction, equally charged with the duty of vouchsafing due process under the 14th Amendment, as well as under the State requirements of due process, i. e. See Wade v. Mayo, 334 U.S. 672, 673, 68 S.Ct. 1270; White v. Regan, 324 U.S. 760, 65 S.CJt. 978, 89 L.Ed. 1348; House v. Mayo, 324 U.S. 42, 65 S.Ct. 517, 89 L.Ed. 739; Ex parte Hawk, 321 U.S. 114, 64 S. Ct. 448, 88 L.Ed. 572. The judgment is affirmed." }, { "docid": "11074582", "title": "", "text": "294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, 98 A.L.R. 406; Bowen v. Johnston, 306 U.S. 19, 24, 59 S.Ct. 442, 444, 83 L.Ed. 455.” Waley v. Johnston, 316 U.S. 101, 62 S.Ct. 966, 86 L.Ed. -, and Frank v. Mangum, supra; Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 82 L.Ed. 1461. In view of what I conceive to be a proper solicitude, where life is at stake, for those liberties which are guaranteed by the Constitution, and the exceptional facts alleged in the petition, the case should not be disposed of on the narrow ground that habeas corpus is not the proper remedy. Before considering the constitutional questions disposition should be made of the plea in bar. At common law the doctrine of res judicata did not extend to a decision on habeas corpus refusing to discharge a prisoner. Since Salinger v. Loisel, 265 U.S. 224, 230, 44 S.Ct. 519, 68 L.Ed. 989, the federal courts have accepted that rule and conformed to it. It is now well established. Though not an absolute bar, the former proceedings are not to be entirely disregarded, since good faith generally would require a petitioner seeking the writ to present all grounds for relief in one petition and not hold others in reserve merely to form the basis of successive petitions for purposes of delay. There may be a few questions, but only a very few, now raised that were not before presented. Even where the issues are identical the court has considerable discretion to hear the evidence or deny the writ ex parte. Remaley v. Swope, 9 Cir., 100 F.2d 31(1, 2), 32; Rolfe v. Lloyd, 9 Cir., 102 F.2d 606; United States ex rel. Bruno v. Reimer, 2 Cir., 103 F.2d 341(2), 342. The plea in bar is not a sufficient barrier against examining the facts anew, and it is overruled. The first constitutional questions presented relate to the assistance of counsel alleged by the petitioner to be guaranteed to him under the Sixth Amendment, due process of law under the Fifth and trial by jury under" }, { "docid": "17111942", "title": "", "text": "Maurez v. Swope, 9 Cir., 1939, 104 F.2d 758; Saylor v. Sanford, 5 Cir., 1938, 99 F.2d 605, certiorari denied, 1939, 306 U.S. 630, 59 S.Ct 465, 83 L.Ed. 1032; Wilfong v. Johnston, 9 Cir., 1946, 156 F.2d 507. McJordan v. Huff, 1943, 77 U.S.App.D.C. 171, 133 F.2d 408; Alexander v. United States, 1943, 78 U.S.App.D.C. 34, 136 F.2d 783. 9 Cir., 1944, 146 F.2d 230, certiorari denied, 1945, 325 U.S. 887, 65 S.Ct. 1567, 89 L.Ed. 2001. 9 Cir., 1944, 144 F.2d 260, 261, certiorari denied, 1933, 323 U.S. 789, 65 S.Ct. 312, 89 L.Ed. 629. 1942, 75 U.S.App.D.C. 274, 128 F.2d 265, 141 A.L.R. 1318. 1938, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 3461, 146 A.L.R. 357. 1941, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830. 1942, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680. 1942, 75 U.S.App.D.C. 242, 247, 126 F.2d 633, 638. Id., 75 U.S.App.D.C. at 248, 126 F.2d at 639. See also cases cited note 3 supra. 1932, 287 U.S. 45, 69, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527. 1943, 78 U.S.App.D.C. 226, 228, 139 F.2d 365, 367, certiorari denied, 1944, 321 U.S. 769, 64 S.Ct. 523, 88 L.Ed. 1064. Hawk v. Olson, 1945, 326 U.S. 271, 66 S.Ct. 116, 90 L.Ed. 61; Avery v. Alabama, 1940, 308 U.S. 444, 60 S.Ct 321, 84 L.Ed. 377; Skiskowski v. United States, 1946, 81 U.S.App.D.C. 274, 277, 158 F.2d 177, 180; Gilmore v. United States, 10 Cir., 1942, 129 F.2d 199, certiorari denied, 1942, 317 U.S. 631, 63 S.Ct. 55, 87 L.Ed. 509; United States v. Hartenfeld, 7 Cir., 1940, 113 F.2d 359, certiorari denied, 1940, 311 U.S. 647, 61 S.Ct. 30, 85 L.Ed. 413; Garrison v. Johnston, 9 Cir., 1939, 104 F.2d 128, certiorari denied, 1939, 308 U.S. 553, 60 S.Ct 107, 84 L.Ed. 465. 1948, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224. 1948, 332 U.S. 742, 68 S.Ct. 300, 92 L.Ed. 330." }, { "docid": "22201049", "title": "", "text": "moved to dismiss on the merits; we would suppose that an appeal cou'ld be taken from a judgment dismissing this second complaint. Since under Rule 35, the sentencing court may correct an illegal sentence “at any time”, even after the term has expired, we think it clear that the court below would have had power to entertain and grant Ekberg’s second motion, notwithstanding its denial of the earlier motion to the same effect, assuming the motion was a meritorious one. If convinced of its previous error, the sentencing court should have continuing power to correct its own illegal sentence. This is a much, more appropriate remedy than remitting the prisoner to a petition for habeas corpus in the district court wherein he is confined. See Berkoff v. Humphrey, 8 Cir., 1947, 159 F.2d 5. The rule of res judicata is not in all strictness applied in habeas corpu's cases. A judge is not precluded from entertaining a petition for habeas corpus and disposing of it on the merits, even though the same point had been ruled adversely to the petitioner in a previous habeas corpus proceeding. Salinger v. Loisel, 1924, 265 U.S. 224, 230, 231, 44 S.Ct. 519, 68 L.Ed. 989; Johnston v. Wright, 9 Cir., 1943, 137 F.2d 914; United States ex rel. Gregoire v. Watkins, 2 Cir., 1947, 164 F.2d 137, 138. See Price v. Johnston, 9 Cir., 1947, 161 F.2d 705, certiorari granted, 1947, 331 U.S. 804, 67 S.Ct. 1757. A fortiori a ruling by the trial judge, at an earlier stage of the same criminal proceeding, on a motion to correct sentence, does not operate as res judicata. Ekberg’s second motion to correct sentence was therefore in order; and though we have found no controlling precedent on the precise point, the analogies sustained the conclusion, and we so hold, that the order denying this second motion was appealable within the time limited by Rule 37(a) (2). Cf. Remine v. United States, 6 Cir., 1947, 161 F.2d 1020, certiorari denied, 1947, 331 U.S. 862, 67 S.Ct. 1759. Coming then to the merits, we think appellant is entitled" }, { "docid": "8612995", "title": "", "text": "HEALY, Circuit Judge. This is an appeal by the warden of Alcatraz prison from an order, granted by Judge Denman of this court, directing the discharge of appellee McDonald, from custody on his petition for habeas corpus. 79 F. Supp. 30. On the same claim of deprival of counsel and on substantially the same showing as is made here the Court of Appeals óf the Tenth Circuit has twice held against the petitioner, McDonald v. Hudspeth, 113 F.2d 984; McDonald v. Hudspeth, 129 F.2d 196, in each of which cases certiorari was denied, 311 U. S. 683, 61 S. Ct. 64; 85 L. Ed. 441; 317 U. S. 665, 63 S. Ct. 75, 87 L. Ed. 535, rehearing denied 317 U. S. 709, 63 S. Ct. 157, 87 L. Ed. 565. This court in turn, on the identical evidence now- presented, reached the conclusion that .the petitioner is not entitled to his release. Johnston v. McDonald, 9 Cir., 157 F.2d 275. The Supreme Court again denied review, McDonald v. Johnston, 329 U. S. 795, 67 S. Ct. 480, 91 L.Ed. 680. The Sixth Circuit, also, in a proceeding by McDonald to vacate the judgment of conviction, rejected the claim here asserted. McDonald v. United States, 166 F.2d 323. Normally we would, without further discussion, reverse on the authority of these repeated decisions, cf. Salinger v. Loisel, 265 U. S. 224, 232, 44 S.Ct. 519, 68 L.Ed. 989, but instead the full remaining complement of the court, plus Judge Fee, now sitting here, has been assembled to consider the appeal; and the matter has once more received such attention as we are capable of giving it. Petitioner’s contention is, as heretofore, that he was denied the effective assistance of counsel in making his defense upon a charge of which he was convicted in the federal court for the eastern district of Michigan. In that case petitioner and one Barnowski were accused of the armed robbery of a bank. The evidence taken at their trial is not contained in the record. All the facts offered in support of the petition are such" }, { "docid": "22201050", "title": "", "text": "ruled adversely to the petitioner in a previous habeas corpus proceeding. Salinger v. Loisel, 1924, 265 U.S. 224, 230, 231, 44 S.Ct. 519, 68 L.Ed. 989; Johnston v. Wright, 9 Cir., 1943, 137 F.2d 914; United States ex rel. Gregoire v. Watkins, 2 Cir., 1947, 164 F.2d 137, 138. See Price v. Johnston, 9 Cir., 1947, 161 F.2d 705, certiorari granted, 1947, 331 U.S. 804, 67 S.Ct. 1757. A fortiori a ruling by the trial judge, at an earlier stage of the same criminal proceeding, on a motion to correct sentence, does not operate as res judicata. Ekberg’s second motion to correct sentence was therefore in order; and though we have found no controlling precedent on the precise point, the analogies sustained the conclusion, and we so hold, that the order denying this second motion was appealable within the time limited by Rule 37(a) (2). Cf. Remine v. United States, 6 Cir., 1947, 161 F.2d 1020, certiorari denied, 1947, 331 U.S. 862, 67 S.Ct. 1759. Coming then to the merits, we think appellant is entitled to relief. The problem of multiple offenses Under 18 U.S.C.A. § 76 is somewhat illuminated by decisions in two commonly recurring situations: (1) It is well settled that the same act or transaction may constitute two distinct federal offenses, and justify findings of guilty on two counts and separate, sentences thereon to run consecutively, if each offense as defined by Congress requires the proof of some fact or element not required to establish the other. Thus under a stat ute, 18 U.S.C.A. § 203, making it an offense for an officer or employee of the United States Government to “receive, or agree to receive, any compensation” for services to any person with relation to a claim or proceeding in which the United States is a party or otherwise interested, pending before any department or bureau of the government, the acts of agreeing to receive, and receiving, compensation in the circumstances stated, constitute separate and distinct offenses which may arise out of the same transaction. Burton v. United States, 1906, 202 U.S. 344, 377, 26 S.Ct." }, { "docid": "693290", "title": "", "text": "rel. Karpathiou v. Jordan, 153 F.2d 810 (7 Cir., 1946), certiorari denied 328 U.S. 868, 66 S.Ct. 1372, 90 L.Ed. 1639 (1946); Wong Doo v. United States, 265 U.S. 239, 44 S.Ct. 524, 68 L.Ed. 999 (1924); Salinger v. Loisel, 265 U.S. 224, 44 S.Ct. 519, 68 L.Ed. 989 (1924). Accord: United States ex rel. McCann v. Thompson, 144 F.2d 604, 156 A.L.R. 240 (2 Cir., 1944), certiorari denied 323 U.S. 790, 65 S.Ct. 313, 89 L.Ed. 630 (1944) ; Jackson v. Gough, 170 F.2d 630 (5 Cir., 1948), certiorari denied 336 U.S. 938, 69 S.Ct. 741, 93 L.Ed. 1097 (1949); Garrison v. Johnston, 151 F.2d 1011 (9 Cir., 1945), certiorari denied 328 U.S. 840, 66 S.Ct. 1009, 90 L.Ed. 1615 (1946). . 87 U.S.App.D.C. 402, 186 F.2d 339 (1950). . Id. 87 U.S.App.D.C. at page 406, 186 F.2d at page 343. . 334 U.S. 266, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948). This is not a proceeding under 28 U.S.C. § 2255. It was initiated by Smith’s motion, filed February 25, 1958, for relief under 18 U.S.C. § 4245, in which he asked the court to determine, under the procedure prescribed by § 4244, his mental competency to stand trial. The motion here under consideration did not mention § 2255, with which Smith was thoroughly familiar, but was carefully and consciously based only on § 4245. The district judge did not “treat” the motion under § 4245 as though it had been made under § 2255; on the contrary, he mistakenly thought the motion was based on both statutory sections. That the judge had this erroneous conception of the present motion is clear from his opinion. Because of this error, he discussed the applicability of both statutes. There is no reason to suppose, however, that the trial judge would have “treated” the motion under § 4245 as having been made also under § 2255, had he not incorrectly thought that in it Smith had in fact relied on § 2255 as well as -on § 4245. In spite of this history, some of my colleagues “treat” the motion under" }, { "docid": "22353842", "title": "", "text": "Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 1025, 82 L.Ed. 1461: “A judge of the United States — to whom a petition for habeas corpus is addressed —should be alert to examine ‘the facts for himself when if true as alleged they make the trial absolutely void.’ ” Holiday v. Johnston, 313 U.S. 342, 350, 61 S.Ct. 1015, 85 L.Ed. 1392; Pyle v. Kansas, 317 U.S. 213, 216, 63 S.Ct. 177, 87 L.Ed. 214. Patton v. United States, 281 U.S. 276, 312, 50 S.Ct. 253, 74 L.Ed. 854, 70 A.L.R. 263. 28 U.S.C.A. §§ 832, 835; Ex parte Quirin, D.O., 47 F.Supp. 431, 317 U.S. 1, 5, 24, 63 S.Ct. 1, 2, 87 L.Ed. 3; Ex parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034. Holiday v. Johnston, 313 U.S. 342, 350, 61 S.Ct. 1015, 85 L.Ed. 1392. Salinger v. Loisel, 265 U.S. 224, 232, 44 S.Ct. 519, 68 L.Ed. 989. Ex parte Hull, 312 U.S. 546, 548, 61 S.Ct. 640, 85 L.Ed. 1034. D.C.Code (1940) § 16 — 801; 28 U. S.C.A. § 455; Ex parte Royall, 117 U.S. 241, 250, 6 S.Ct. 734, 29 L.Ed. 868. Walker v. Johnston, 312 U.S. 275, 284, 61 S.Ct. 574, 85 L.Ed. 830; United States v. Ju Toy, 198 U.S. 253, 261, 25 S.Ct. 644, 49 L.Ed. 1040; United States v. Sing Tuck, 194 U.S. 161, 170, 24 S.Ct. 621, 48 L.Ed. 917; McCord v. Page, 5 Cir., 124 F.2d 68; Taylor v. O’Grady, 8 Cir., 113 F.2d 798; Brown v. Johnston, 9 Cir., 91 F.2d 370, certiorari denied, 302 U.S. 728, 58 S.Ct. 58, 82 L.Ed. 563. Walker v. Johnston, 312 U.S. 275, 279, 61 S.Ct. 574, 85 L.Ed. 830; Mooney v. Holohan, 294 U.S. 103, 111, 55 S.Ct. 340, 79 L.Ed. 791, 98 A.L.R. 406; Ex parte Yarbrough, 110 U.S. 651, 653, 4 S.Ct. 152, 28 L.Ed. 274. Walker v. Johnston, 312 U.S. 275, 284, 61 S.Ct. 574, 85 L.Ed. 830; Cohen v. Biddle, 8 Cir., 12 F.2d 704; Thompson v. King, 8 Cir., 107 F.2d 307-308. Mothershead v. King, 8 Cir., 112 F.2d 1004," }, { "docid": "18372712", "title": "", "text": "similar relief. Affirmed. BAZELON, Circuit Judge, concurs in the result. . Carrado v. United States, 1953, 93 U.S. App.D.C. 183, 210 F.2d 712. . Turner v. United States, No. 13178 (Oct. 4, 1956). . “The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.” 28 U.S.C. § 2255. Cf. Belton v. United States,-U.S.App. D.C. -, 259 F.2d 811 (dissent); Salinger v. Loisel, 1924, 265 U.S. 224, 44 S. Ct. 519, 68 L.Ed. 989. . Price v. Johnston, 1948, 334 U.S. 266, 291, 68 S.Ct. 1049, 92 L.Ed. 1356; cf. Wong Doo v. United States, 1924, 265 U. S. 239, 44 S.Ct. 524, 68 L.Ed. 999. . Under Price v. Johnston a second or successive petition for habeas corpus may properly be entertained if it (1) asserts a claim not previously passed on and (2), asserts or demonstrates “some justifiable reason [why petitioner] was previously unable to assert his rights or was unaware of the significance of relevant facts * * At page 291 of 334 U.S. at page 1063 of 68 S.Ct. . See Lipscomb v. United States, 8 Cir., 1955, 226 F.2d 812, certiorari denied, 350 U.S. 971, 76 S.Ct. 445, 100 L.Ed. 843, rehearing denied 350 U.S. 1003, 76 S.Ct. 550, 100 L.Ed. 866." }, { "docid": "17275302", "title": "", "text": "to a decision on habeas corpus refusing to discharge a prisoner. Salinger v. Loisel, 265 U.S. 224, 230, 44 S.Ct. 519, 68 L.Ed. 989; Waley v. Johnston, 316 U.S. 101, 105, 62 S.Ct. 964, 86 L.Ed. 1302. But a District Judge is not required to entertain an application for a writ of habeas corpus if it appears that the legality of applicant’s detention has been determined by a judge or court of the United States on a prior application and the petition presents no new ground not theretofore presented and determined, and the judge or court is satisfied that the ends of justice will not be served by such inquiry. Section 2244, Title 28 U.S.Code. It follows as a corollary that if the ends of justice will be served by such an inquiry, a reconsideration of the question should be undertaken. See: Price v. Johnston, 334 U.S. 266, 286, 68 S.Ct. 1049, 92 L.Ed. 1356; United States ex rel. McCann v. Adams, 320 U.S. 220, 64 S.Ct. 14, 88 L.Ed. 4; United States ex rel. Kennedy v. Burke, 173 F.2d 544, 547, 548, C.A.3. Although petitioner’s prior application for the writ was denied by the District Judge, the ruling was not reviewed by this Court because of appellant’s failure to properly prosecute an appeal and the absence of counsel to assist him in the matter. In view of the recent ruling of the Supreme Court in Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760, involving an analogous issue, which was handed down subsequent to the ruling of the District Judge denying the original application for the writ, we are of the opinion that petitioner’s contention should be considered in the light of the ruling in that case, with the ruling of the District Judge subject to appellate review. See also: Fikes v. Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246. This requires that the present application for the writ be considered and disposed of on its merits instead of its denial on the procedural ground that the legality of petitioner’s detention has been previously" }, { "docid": "693289", "title": "", "text": "the motion. For the presentation of false statements of fact under oath in such a motion, the perjury statute applies. . 103 U.S.App.D.C. 313, 258 F.2d 165 (1958). . 28 U.S.C. § 2244. . The Senate Report, S. Rep. No. 1559, 80th Cong., 2d Sess. (1948), and the Reviser’s Notes to the Revision of Title 28, U.S.Code, specifically state that the language of Section 2244 is that approved by the Judicial Conference in September, 1947. Rep. of Jud. Conf., U.S., 17, 18 (1947). The proposed statute approved by the Conference in 1947 was, with amendments not here relevant, the same as that approved in 1943 and submitted to Congress with the Statement prepared by Circuit Judge Stone. S. 1452, H.R. 4232, 79th Cong., 1st Sess. . 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959). . 342 U.S. 205, 214-219, 72 S.Ct. 263, 96 L.Ed. 232 (1952). . S. 1451, S. 1452, H.R. 4232, H.R. 4233, 79th Cong., 1st Sess. (1945). . Slaughter v. Wright, 135 F.2d 613 (4 Cir., 1943); United States ex rel. Karpathiou v. Jordan, 153 F.2d 810 (7 Cir., 1946), certiorari denied 328 U.S. 868, 66 S.Ct. 1372, 90 L.Ed. 1639 (1946); Wong Doo v. United States, 265 U.S. 239, 44 S.Ct. 524, 68 L.Ed. 999 (1924); Salinger v. Loisel, 265 U.S. 224, 44 S.Ct. 519, 68 L.Ed. 989 (1924). Accord: United States ex rel. McCann v. Thompson, 144 F.2d 604, 156 A.L.R. 240 (2 Cir., 1944), certiorari denied 323 U.S. 790, 65 S.Ct. 313, 89 L.Ed. 630 (1944) ; Jackson v. Gough, 170 F.2d 630 (5 Cir., 1948), certiorari denied 336 U.S. 938, 69 S.Ct. 741, 93 L.Ed. 1097 (1949); Garrison v. Johnston, 151 F.2d 1011 (9 Cir., 1945), certiorari denied 328 U.S. 840, 66 S.Ct. 1009, 90 L.Ed. 1615 (1946). . 87 U.S.App.D.C. 402, 186 F.2d 339 (1950). . Id. 87 U.S.App.D.C. at page 406, 186 F.2d at page 343. . 334 U.S. 266, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948). This is not a proceeding under 28 U.S.C. § 2255. It was initiated by Smith’s motion, filed February 25, 1958, for relief" }, { "docid": "22444084", "title": "", "text": "Marshal, he could not “complain if one sovereignty waives its strict right to exclusive custody of him for vindication of its laws.” Powell v. Sanford, 5 Cir., 156 F.2d 355, 356. . Vanover v. Cox, 8 Cir., 136 F.2d 442, 443-444, certiorari denied 320 U.S. 779, 64 S.Ct. 93, 88 L.Ed. 468. This view is restated in Stamphill v. Johnston, 9 Cir., 136 F.2d 291, 292, certiorari denied 320 U.S. 766, 64 S.Ct. 70, 88 L.Ed. 457. . Ponzi v. Fessenden, 258 U.S. 254, 260, 42 S.Ct. 309; United States ex rel. Moore v. Traeger, 9 Cir., 44 F.2d 312, 313; Cato v. Smith, 9 Cir., 104 F.2d 885, 886, certiorari denied 308 U.S. 608, 60 S.Ct. 177, 84 L.Ed. 508; Kirk v. Squier, 9 Cir., 150 F.2d 3, 8, certiorari denied 326 U.S. 775, 66 S.Ct. 265, 90 L.Ed. 469; Gunton v. Squier, 9 Cir., 185 F.2d 470, 471; Wall v. Hudspeth, 10 Cir., 108 F.2d 865, 866; Lunsford v. Hudspeth, 10 Cir., 126 F.2d 653, 655; Stamphill v. United States, 10 Cir., 135 F.2d 177, 178; Rosenthal v. Hunter, 10 Cir., 164 F.2d 949, 950; Rawls v. United States, 10 Cir., 166 F.2d 532, 534, certiorari denied 334 U.S. 848, 68 S.Ct. 1498, 92 L.Ed. 1771; Craig v. Hunter, 10 Cir., 167 F.2d 721, 722; Stripling v. United States, 10 Cir., 172 F.2d 636, 637; Vanderpool v. Hunter, 10 Cir., 177 F.2d 716, 717, 718; Mitchell v. Boen, 10 Cir., 194 F.2d 405, 407; Werntz v. Looney, 10 Cir., 208 F.2d 102, 104; United States ex rel. Demarois v. Farrell, 8 Cir., 87 F.2d 957, 962, certiorari denied 302 U.S. 683, 58 S.Ct. 31, 82 L.Ed. 527; Banks v. O’Grady, 8 Cir., 113 F.2d 926, 927; United States ex rel. Spellman v. Murphy, 7 Cir., 217 F.2d 247, 251; United States ex rel. Moses v. Kipp, 7 Cir., 232 F.2d 147, 150; Florio v. Edwards, 5 Cir., 80 F.2d 509, 510; Ex parte Marrin, D.C., 164 F. 631, 637; United States v. Taylor, D.C., 284 F. 489, 490; United States v. Jackson, D.C., 134 F.Supp. 872, 873; People" }, { "docid": "1837090", "title": "", "text": "represent another defendant whose interests were inconsistent to those of Glasser. The Supreme Court held that Glasser’s rights were prejudiced under the circumstances. Not one of the cases cited by appellant is in point. Not only were those cases decided on widely divergent state of facts and circumstances but none decides the question raised in this habeas corpus proceeding. In the case before us the appellant was well represented by counsel of his own choosing, secured but four days after his arrest and more than two months prior to trial, and was so represented on arraignment and throughout the trial. The other questions raised by this second petition, which properly could be considered in a habeas corpus proceeding, were passed upon in the opinion of this court, Price v. Johnston, 125 F.2d 806. Affirmed. Waley v. Johnston, 9 Cir., 139 F.2d 117, certiorari denied 321 U.S. 779, 64 S.Ct. 617. Hall v. Johnston, 9 Cir., 86 F.2d 820; Nishimura Ekiu v. United States, 142 U.S. 651, 12 S.Ct. 336, 35 L.Ed. 1146; Iasigi v. Van De Carr, 166 U.S. 391, 17 S.Ct. 595, 41 L.Ed. 1045; Kelly v. Griffin, 241 U.S. 6, 36 S.Ct. 487, 60 L.Ed. 861. Ex parte Bollman (Ex parte Swartwout), 4 Cranch 75, 2 L.Ed. 554; Coleman v. Tennessee, 97 U.S. 509, 24 L.Ed. 1118; United States v. McBratney, 104 U.S. 621, 26 L.Ed. 869; Kelley v. Thomas, 15 Gray, Mass., 192." }, { "docid": "15896441", "title": "", "text": "United States v. Wilson, 28 F.Cas. p. 699, 717 (No. 16,730) (C.C. E.D.Pa.1830), appeal dismissed, 32 U.S. (7 Pet.) 149, 8 L.Ed. 640 (1833); Maryland v. Brown, 295 F.Supp. 63, 80-81 (D.Md.1969). . Salinger v. Loisel, 265 U.S. 224, 232, 44 S.Ct. 519, 68 L.Ed. 989 (1924). . Ruthenberg v. United States, 245 U.S. 480, 482, 38 S.Ct. 168, 62 L.Ed. 414 (1918). . Platt v. Minnesota Mining & Mfg. Co., 376 U.S. 240, 245, 84 S.Ct. 769, 11 L.Ed.2d 674 (1964); Johnston v. United States, 351 U.S. 215, 220-21, 76 S.Ct. 739, 100 L.Ed. 1097 (1956); United States v. Anderson, 328 U.S. 699, 705, 66 S.Ct. 1213, 90 L.Ed. 1529 (1946); Haas v. Henkel, 216 U.S. 462, 473, 30 S.Ct. 249, 54 L.Ed. 569 (1910). . Barrett v. United States, 169 U.S. 218, 228-29, 18 S.Ct. 327, 42 L.Ed. 723 (1898); United States v. Brown, 535 F.2d 424 (8th Cir. 1976); Franklin v. United States, 384 F.2d 377, 378 (5th Cir. 1967), cert. denied, 390 U.S. 954, 88 S.Ct. 1048, 19 L.Ed.2d 1147 (1968); Lafoon v. United States, 250 F.2d 958, 959 (5th Cir. 1958); McNealy v. Johnston, 100 F.2d 280, 282 (9th Cir. 1938). With regard to grand jurors, compare United States v. Wan Lee, 44 F. 707, 708 (D.Wash.1890), with United States v. Dixon, 44 F. 401, 402 (N.D.Cal.1890). . 28 U.S.C. § 110 (1970). . 456 F.2d 46 (4th Cir. 1972). . Id. at 49. . United States v. Butera, 420 F.2d 564, 572 (1st Cir. 1970). See United States v. Cates, 485 F.2d 26, 28 (1st Cir. 1974) (statutory analysis only). . United States v. Gottfried, 165 F.2d 360, 363-64 (2d Cir.) (L. Hand, J.), cert. denied, 333 U.S. 860, 68 S.Ct. 738, 92 L.Ed. 1139 (1948). . United States v. Brown, 281 F.Supp. 31, 37-39 (E.D.La.1968). The Fourth Circuit has noted that exclusion of either a rural or an urban populace and inclusion of the other is a more significant “criterion for measuring jury selection” than is the exclusion of all potential jurors residing beyond a given distance from the courthouse. United States v." }, { "docid": "9000019", "title": "", "text": "taken judicial notice. No more was necessary. The applicable rule was succinctly stated by Justice Edgerton in the Pope case: “Though the doctrine of res judicata does not apply to habeas corpus proceedings, the fact that the same issues have been decided in a former proceeding may, and sometimes should, as a matter of judicial discretion, be given controlling weight. In our opinion the present situation ‘was one where, according to a sound judicial discretion, controlling weight must have been given’ to the prior adjudication. It is therefore immaterial whether the District Court, in dismissing the present petition, correctly exercised its discretion or incorrectly applied the rule of res judicata.” Affirmed. Cf. In re Rosier, 76 U.S.App.D.C. 214, 225, 133 F.2d 316, 327. See Boehman v. Green, 78 U.S.App.D.C. 83, 136 F.2d 804; Bostic v. Rives, 71 App.D.C. 2, 107 F.2d 649; Pagett v. McCauley, 9 Cir., 95 F.2d 839. Waley v. Johnston, 316 U.S. 101, 105, 62 S.Ct. 964, 86 L.Ed. 1302; Salinger v. Loisel, 265 U.S. 224, 230, 44 S.Ct. 519, 68 L.Ed. 989. See cases cited note 6 infra. Salinger v. Loisel, 265 U.S. 224, 232, 44 S.Ct. 519, 68 L.Ed. 989. Pope v. Huff, 79 U.S.App.D.C, —, 141 F.2d 727; Pagett v. McCauley, 9 Cir., 95 F.2d 839; cf. Beard v. Bennett, 72 App.D.C. 269, 114 F.2d 578. Pagett v. McCauley, 9 Cir., 95 F.2d 839; Craemer v. Washington State, 168 U.S. 124, 129, 18 S.Ct. 1, 42 L.Ed. 407; Andersen v. Treat, 172 U.S. 24, 29, 31, 19 S.Ct. 67, 43 L.Ed. 351. Pope v. Huff, 79 U.S.App.D.C. —, 141 F.2d 727, 728." }, { "docid": "15802658", "title": "", "text": "however, these matters (if true) were known to appellant when he filed the petition in No. 23,450. If appellant intended to rely on these matters, he should have urged them in No. 23,450. To reserve them for use in a later proceeding “was to make an abusive use of the writ of habeas corpus.” Judgment affirmed. The appeal was docketed and dismissed on February 25, 1938. Garrison v. United States, 8 Cir., 97 F.2d 1002. Hewitt v. United States, 8 Cir., 110 F.2d 1. Cf. Dimenza v. Johnston, 9 Cir., 130 F.2d 465; Coy v. Johnston, 9 Cir., 136 F.2d 818; Wilson v. United States, 9 Cir., 145 F.2d 734; Barkdoll v. United States, 9 Cir., 147 F.2d 617; Minntole v. Johnston, 9 Cir., 147 F.2d 944. Hewitt v. United States, 310 U.S. 641, 60 S.Ct. 1089, 84 L.Ed. 1409. Garrison v. Reeves, 8 Cir., 116 F.2d 978. Garrison v. Johnston, 9 Cir., 104 F.2d 128. Garrison v. Johnston, 308 U.S. 553, 60 S.Ct. 107, 84 L.Ed. 465. A petition for leave to prosecute the appeal in forma pauperis was denied by the California court on April 29, 1942. A similar petition was denied by this court on June 22, 1942. Garrison v. Johnston, 9 Cir., 129 F.2d 318. Salinger v. Loisel, 265 U.S. 224, 44 S. Ct. 519, 68 L.Ed. 989; Wong Doo v. United States, 265 U.S. 239, 44 S.Ct. 524, 68 L.Ed. 999; Sander v. Johnston, 9 Cir., 11 F.2d 509; Pagett v. McCauley, 9 Cir., 95 F.2d 839; Rolfe v. Lloyd, 9 Cir., 102 F.2d 606; Swihart v. Johnston, 9 Cir., 150 F.2d 721. See cases cited in footnote 8. See cases cited in footnote 8. See cases cited in footnote 8. Wong Doo v. United States, supra; Swihart v. Johnston, supra. See cases cited in footnote 12." } ]

[ { "docid": "16139277", "title": "", "text": "affidavit in support of an arrest warrant nor testified before the grand jury. Jennings, 644 F,3d at 301. JENNIFER WALKER ELROD, Circuit Judge, dissenting: The majority opinion holds — contrary to our binding precedent — that a law enforcement officer who did not participate in the preparation or the execution of a warrant can be hable under 42 U.S.C. § 1983 when the wrong person is arrested. I respectfully dissent. I. In June 2009, Deputy Kelly Phillips interviewed an assault victim and wrote a report identifying the assailant as “Michael David Melton.” The report also contained what Deputy Phillips believed to be the assailant’s address, driver’s license number, age, and physical characteristics. This was Deputy Phillips’s sole involvement in the chain of events leading to Melton’s May 2012 arrest and detention.. After Deputy Phillips submitted his report, Investigator Jeff Haines began investigating the assault. A year later,- Haines obtained a sworn affidavit from the victim identifying his assailant as “Mike Melton.” The Hunt County Attorney’s Office then brought charges against “Michael Melton.” The assailant’s first and last names are the only identifying information contained in the complaint, and their accuracy is undisputed. Four days, after the complaint was filed, a Hunt County judge issued a capias warrant for the arrest of “Michael Melton.” This warrant contained additional identifying information, including a social security number that did not appear in Deputy Phillips’s report. Two years after the judge issued the warrant, Plaintiff Michael David Melton was arrested and detained. It is undisputed that Deputy Phillips had nothing to do with any of these actions by Haines, the victim, the Hunt County Attorney’s Office, or the Hunt County judge. II. The majority opinion relies exclusively on Hart v. O’Brien, 127 F.3d 424 (5th Cir. 1997), abrogated on other grounds by Kalina v. Fletcher, 522 U.S. 118, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997), and specifically disavows two other published opinions to reach its conclusion that Deputy Phillips is not entitled to qualified immunity. In so doing, the majority opinion stretches Hart to the point of breaking it and thereby unnecessarily concludes that" } ]

[ { "docid": "16139258", "title": "", "text": "JAMES L. DENNIS, Circuit Judge: The plaintiff, Michael David Melton, spent sixteen days in county jail in connection with an assault he did not commit. The only thing that linked him' to this assault was the fact that he has the same first and last name as the person identified by the victim as the actual assailant. After his release, the plaintiff filed a lawsuit under 42 U.S.C. § 1983 against Kelly Phillips, a sheriffs office deputy, alleging that Phillips intentionally or recklessly misidentified him as the assailant in an offense report that he prepared, thereby leading to the plaintiffs arrest without probable cause in violation of the Fourth Amendment. The district court denied Phillips’s qualified immunity-based motion for summary judgment, and Phillips now appeals, principally arguing that he cannot be liable for a Fourth Amendment violation because he neither prepared nor signed the affidavit in support of an arrest warrant. After carefully considering the parties’ arguments, we affirm the district court’s order in part and dismiss the ^appeal in part. I In June 2009, Phillips, then a deputy with the Hunt County Sheriffs Office, interviewed the victim of an assault. The victim identified the attacker as his wife’s boyfriend at the time, a man named Michael Melton, apparently without providing the assailant’s middle name. Phillips then prepared an offense report and submitted it to the Sheriffs Office. The report specifically identified the plaintiff, Michael David Melton, as the suspected assailant. After he submitted his report, Phillips had no further involvement with the case. In July 2010, the state prosecutor filed a criminal complaint against the plaintiff, charging him with the assault. The complaint expressly stated that it was based upon Phillips’s offense report and provided no other basis for the information contained therein. Shortly thereafter, a Hunt County judge issued a warrant for the plaintiffs arrest, identifying him by his first and last name and by his address, which was included in Phillips’s report. The plaintiff was arrested in May 2012 and held in county jail for sixteen days before he was released on bond. In August 2012, the" }, { "docid": "21809620", "title": "", "text": "reckless because, as the district court understood it, Franks applies to “any government official who makes a reckless misstatement.” However, even assuming arguendo that Deputy Phillips was reckless in completing the incident report, he is still entitled to summary judgment unless there is a question of fact as to whether he assisted in the preparation of the complaint on the basis of which the capias warrant issued. See Jennings, 644 F.3d at 300-01; Hampton, 480 F.3d at 365. Melton seeks to create a fact issue as to whether Deputy Phillips helped prepare the complaint by providing information for use in it, asserting that “[a]ny investigator would know” an incident report will be used to obtain a warrant. However, there is no record evidence of a policy or practice at the Hunt County Sheriffs Office that would have allowed Deputy Phillips to anticipate that the incident report would be used to obtain a warrant. See OA at 38:25-40:40. Nor, as Melton has conceded, is there record evidence suggesting that Deputy Phillips knew this specific report would be used to obtain a warrant. OA at 38:11-38:23. Moreover, unchecked boxes at the end of the incident report show that Deputy Phillips chose not to file the report with a justice of the peace, a county attorney, or a district attorney. Because the record does not contain evidence that the information in the incident report was provided for the purpose of use in the complaint, Deputy Phillips did not participate in preparing the complaint. See Hart, 127 F.3d at 448-49. Accordingly, because he did not assist in preparing, present, or sign the complaint, Deputy Phillips cannot be held liable under Franks. See Jennings, 644 F.3d at 300-01; Hampton, 480 F.3d at 365. Accordingly, Deputy Phillips is entitled to summary judgment on this claim. B. Even assuming arguendo that Melton could demonstrate that a fact issue .exists on his claim that Deputy Phillips recklessly filled out the incident report, Melton bears the burden of demonstrating that Deputy Phillips violated his clearly established rights. See Morgan, 659 F.3d at 371. “Abstract or general statements of legal" }, { "docid": "16139279", "title": "", "text": "it conflicts with other on-point, binding precedent. Hart is simply inapplicable on these facts. We stated in Hart that, notwithstanding the doctrine of qualified immunity, “[a] governmental official violates the Fourth Amendment when he deliberately or recklessly provides false, material information for use in an affidavit in support of a search warrant, regardless of whether he signs the affidavit.” Id. at 448-49. Thus, Hart denies qualified immunity to an officer who provides false information if: (1) the information is provided for use in an affidavit in support. of a warrant; (2) the officer acted deliberately or recklessly with regard to the truth or falsity of the information; and (3) the information is material. This case does not meet any of these requirements and does not fall within the scope of Hart. To begin, Deputy Phillips’s actions in this case are not subject to liability under Hart because Deputy Phillips’s identification of the assailant as “Michael David Melton” was not information provided “for use in an affidavit in support of a [ ] warrant.” Id. The incorrect information in Hart was provided by a prosecutor as he assisted in drafting the affidavit. Id. at 433. The incorrect information in this case was provided by Deputy Phillips a year before additional investigation by. Haines, a sworn statement by the victim, and a decision to press charges by the Hunt County Attorney’s Office led to the drafting of a complaint that contained only accurate identifying information. In light of the attenuated connection between Deputy Phillips’s identification of the assailant and the application for a warrant, Deputy Phillips’s statement was not a statement provided for use in an affidavit in support of a warrant and therefore is not within the scope of Hart. Moreover, the record in this case contains no .actual evidence that Deputy Phillips acted recklessly in identifying the assailant as' “Michael David Melton.” Recklessness in -this context requires proof that the defendant “ ‘in fact entertained serious doubts as to the truth’ of the statement”. Id. at 449 (quoting St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20" }, { "docid": "21809607", "title": "", "text": "called a P.I.D. used by the Hunt County Sheriffs Office. Alford further stated that Melton and the true assailant have no identifying characteristics in common other than their first and last names. Accordingly, Alford inferred that Deputy Phillips must have obtained the information in the incident report from the P.I.D. without asking the victim to verify any information other than first and last names. Finally, Alford’s affidavit averred that a reasonable officer would not rely on the P.I.D. without verifying additional information beyond first and last names. The district court determined that Alford’s affidavit created a genuine issue of material fact regarding whether Deputy Phillips obtained identifying information from the victim, whether he cross-checked that information against the P.I.D. results, whether he used the P.I.D. system at all, and whether his use of the P.I.D. system was improper. The district court reasoned that these questions were material to recklessness, which is an element of liability under Franks. Accordingly, the district court denied Deputy Phillips’s motion for summary judgment on qualified immunity with respect to Melton’s Franks-based Section 1983 claim. Deputy Phillips appealed the district court’s denial of summary judgment. Interlocutory appeal was appropriate in this case because Deputy Phillips had raised the defense of qualified immunity, which is an immunity from suit that must be considered at the earliest possible stage of litigation. Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). A divided panel of this court affirmed the district court in part and dismissed the appeal for lack of jurisdiction to the extent it challenged the genuineness of the factual dispute over recklessness. Melton, 837 F.3d at 510. The panel majority further held sua sponte that, although Jennings v. Patton, 644 F.3d 297 (5th Cir. 2011), and Hampton v. Oktibbeha County Sheriff Department, 480 F.3d 358 (5th Cir. 2007), “grant[ed] qualified immunity to government officials who neither signed nor drafted warrant applications,” these opinions lacked precedential value because, in the panel majority’s view, they contradicted this court’s earlier decision in Hart. Melton, 837 F.3d at 509. Accordingly, the panel majority sua sponte overruled" }, { "docid": "21809604", "title": "", "text": "JENNIFER WALKER ELROD, Circuit Judge, joined by STEWART, Chief Judge, JOLLY, JONES, SMITH, CLEMENT, PRADO, OWEN, SOUTHWICK, HAYNES, and HIGGINSON, Circuit Judges: Michael David Melton alleges that he was arrested in violation of the Fourth Amendment for an assault committed by another man with the same first and last names. He seeks to hold Deputy Kelly Phillips, who took the original incident report, liable for his arrest under 42 U.S.C. § 1983. Deputy Phillips moved for summary judgment in district court, asserting the defense of qualified immunity. The district court determined that fact issues precluded summary judgment on one of .Melton's Section 1983 claims. Because Deputy Phillips is entitled to summary judgment even when construing all the facts in the light most favorable to Melton, we REVERSE!. the district court’s order and RENDER summary judgment on Melton’s remaining Section 1983 claim against Deputy Phillips. I. In June 2009, Deputy Phillips interviewed an alleged assault victim and filled out an incident report identifying the alleged assailant by the name “Michael David Melton.” After Deputy Phillips submitted the report, an investigator with the Sheriffs Office began investigating the assault. A year later, the alleged victim provided the investigator with a sworn affidavit identifying the alleged assailant as “Mike Melton.” The Hunt County Attorney’s Office then filed a complaint against “Michael Melton.” The alleged assailant’s first and last names are the only identifying information contained in the complaint, and their accuracy is undisputed. Four days after the complaint was filed, a Hunt County judge issued a capias warrant correctly identifying the assailant as “Michael Melton.” Two years after the judge issued the warrant, Melton was arrested on assault charges and detained for sixteen days before being released on bond. It is undisputed that Deputy Phillips’s involvement ‘in the chain of events that led to Melton’s May 2012 arrest and detention ended with the incident report in June 2009. Melton v. Phillips, 837 F.3d 502, 505 (5th Cir. 2016). The assault charges against Melton were ultimately dismissed for insufficient evidence. Melton then sued Deputy Phillips under 42 U.S.C. § 1983, alleging that Deputy Phillips" }, { "docid": "16139278", "title": "", "text": "and last names are the only identifying information contained in the complaint, and their accuracy is undisputed. Four days, after the complaint was filed, a Hunt County judge issued a capias warrant for the arrest of “Michael Melton.” This warrant contained additional identifying information, including a social security number that did not appear in Deputy Phillips’s report. Two years after the judge issued the warrant, Plaintiff Michael David Melton was arrested and detained. It is undisputed that Deputy Phillips had nothing to do with any of these actions by Haines, the victim, the Hunt County Attorney’s Office, or the Hunt County judge. II. The majority opinion relies exclusively on Hart v. O’Brien, 127 F.3d 424 (5th Cir. 1997), abrogated on other grounds by Kalina v. Fletcher, 522 U.S. 118, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997), and specifically disavows two other published opinions to reach its conclusion that Deputy Phillips is not entitled to qualified immunity. In so doing, the majority opinion stretches Hart to the point of breaking it and thereby unnecessarily concludes that it conflicts with other on-point, binding precedent. Hart is simply inapplicable on these facts. We stated in Hart that, notwithstanding the doctrine of qualified immunity, “[a] governmental official violates the Fourth Amendment when he deliberately or recklessly provides false, material information for use in an affidavit in support of a search warrant, regardless of whether he signs the affidavit.” Id. at 448-49. Thus, Hart denies qualified immunity to an officer who provides false information if: (1) the information is provided for use in an affidavit in support. of a warrant; (2) the officer acted deliberately or recklessly with regard to the truth or falsity of the information; and (3) the information is material. This case does not meet any of these requirements and does not fall within the scope of Hart. To begin, Deputy Phillips’s actions in this case are not subject to liability under Hart because Deputy Phillips’s identification of the assailant as “Michael David Melton” was not information provided “for use in an affidavit in support of a [ ] warrant.” Id. The" }, { "docid": "21809624", "title": "", "text": "As discussed above, Hampton held that an officer is entitled to qualified immunity if he does not prepare, present, or sign a warrant application. Hampton, 480 F.3d at 365. Hart held that an officer is not entitled to qualified immunity if he “deliberately or recklessly provides false, material information for use in cm affidavit in, support of [a warrant].” Hart, 127 F.3d at 448-49 (emphasis added). Because Melton cannot show that Deputy Phillips prepared, presented, signed, or provided information for .use in the complaint, he cannot show that Deputy Phillips violated clearly established law. III. For the reasons explained above, we REVERSE the district court’s order and RENDER summary judgment for Deputy Phillips on Melton’s claim of liability under Franks. Judge Haynes concurs in the judgment and concurs as to Parts I and II.B only. . Melton’s briefs argued that the incident report’s use of the middle name ‘‘David’’ erroneously identified him as the assailant. However, the record does not show that this information ever made its way to the judge who issued the warrant, As Melton has conceded, the record does not show that the incident report itself was presented to the judge. OA at 41:51-42:11. Moreover, no erroneous information from the report was incorporated into the complaint that was presented to the judge: Melton has conceded that the complaint is accurate. OA at 40:55-41:51. . The record does not contain any document labeled as a warrant application or probable cause affidavit. The warrant appears to have issued based on a complaint filed by an Assistant Hunt County Attorney. However, the briefing by both parties assumes that a complaint that leads to a capias warrant is the equivalent of a warrant application for purposes of Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), and Hart v. O’Brien, 127 F.3d 424 (5th Cir. 1997). We accept their assumption for purposes of deciding this case without reaching the question because the issue has not been briefed, is not disputed by the parties, and would not alter the outcome here. . Melton also brought numerous state-law claims" }, { "docid": "21809640", "title": "", "text": "as the assailant, and provided his middle name, age, height, hair color, and eye color. As the district court noted, Phillips did not explain how he came to identify the plaintiff, as opposed to the true assailant, as the perpetrator in his report. According to the plaintiffs expert witness, the only possible way Phillips could have identified the plaintiff falsely as the assailant in his offense report was by entering the name “Michael Melton” into a computer database, the “Personal Identification History through net data” or “PID,” without conducting any investigation as to whether the PID-generated result matched the person identified by the victim. Phillips forwarded his report to the Criminal Investigation Division of the Hunt County Sheriffs Office. In April 2010, another officer obtained a sworn affidavit from the victim, who again identified his assailant only as “Mike Melton,” his estranged wife’s boyfriend. In July 2010, the state prosecutor filed a criminal complaint against the plaintiff, charging him with the assault. The complaint expressly stated that it was “based upon the observations of K. Phillips, a peace officer, obtained by reviewing said officer’s report,” and it provided no other basis for the information contained therein. Shortly thereafter, a Hunt County judge issued a warrant for the plaintiffs arrest. The plaintiff was arrested in May 2012 and held in county jail for sixteen days before he was released on bond. In August 2012, the charge against the plaintiff was dismissed. The plaintiff sued Phillips for violation of his Fourth Amendment rights, alleging that Phillips intentionally or with reckless disregard for the truth misidentified him as the assailant in his offense report, thereby leading to his arrest without probable cause. Phillips moved for summary judgment, asserting qualified immunity. The district court denied summary judg ment on the plaintiffs Fourth Amendment claims, finding a genuine dispute ol‘ fact regarding whether Phillips was reckless in identifying the plaintiff in his offense report. II A This court has recognized two different kinds of claims against government agents for alleged Fourth Amendment violations, in connection with a search or arrest warrant: (1) claims under Franks" }, { "docid": "21809625", "title": "", "text": "As Melton has conceded, the record does not show that the incident report itself was presented to the judge. OA at 41:51-42:11. Moreover, no erroneous information from the report was incorporated into the complaint that was presented to the judge: Melton has conceded that the complaint is accurate. OA at 40:55-41:51. . The record does not contain any document labeled as a warrant application or probable cause affidavit. The warrant appears to have issued based on a complaint filed by an Assistant Hunt County Attorney. However, the briefing by both parties assumes that a complaint that leads to a capias warrant is the equivalent of a warrant application for purposes of Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), and Hart v. O’Brien, 127 F.3d 424 (5th Cir. 1997). We accept their assumption for purposes of deciding this case without reaching the question because the issue has not been briefed, is not disputed by the parties, and would not alter the outcome here. . Melton also brought numerous state-law claims against Deputy Phillips and a variety of state-law and Section 1983 claims against Hunt County, the Hunt County Sheriff’s Department, and the Hunt County Sheriff. However, the only claim at issue in this interlocutory appeal based on qualified immunity is Melton’s Section 1983 claim based on Franks. . The district court granted Deputy Phillips's motion for summary judgment on Melton's Section 1983 claims that were based on the Fifth Amendment, and those claims are not at issue here. . We observe that none of our sister circuits has applied Franks to circumstances in which an officer’s connection to the plaintiff’s arrest is as attenuated as in this case. See, e.g., KRL v. Moore, 384 F.3d 1105, 1118 (9th Cir. 2004) (holding that, “because he had no role in the preparation of the ... warrant,'.’ an officer who was involved at every stage of an investigation was entitled to qualified immunity for material omissions in a warrant application); see also United States v. Brown, 631 F.3d 638, 640-42 (3d Cir. 2011) (applying Franks where non-affiant helped" }, { "docid": "16139281", "title": "", "text": "L.Ed.2d 262 (1968)). The district court’s finding of a dispute regarding recklessness relied on an affidavit by a peace officer who, without personal knowledge of the matter, speculated that Deputy Phillips used the middle name “David” in his report because he found it in a local police database using the first and last names of the assailant without any other identifiers. The affidavit does not raise a fact issue as to whether Deputy Phillips himself entertained serious doubts as to the truth of his report. Thus, the affidavit is not evidence of recklessness as defined in this context. Moreover, Melton’s counsel in a 28(j) letter acknowledged that Melton did not have a criminal record in the local police database discussed, in the affidavit, undermining any evidentiary value the affidavit may have had on this point. Even assuming arguendo that the affidavit is some evidence that Deputy Phillips acted recklessly by including the middle name “David” in his report, reliance on Hart is misplaced because the incorrect information that Deputy Phillips provided was not' material ’ to a determination of probable cause. In Hart, officers saw vehicles registered to Peggy Hart on a property being used to' grow marijuana; incorrectly assumed that this was the same Peggy Hart who was the wife of a known marijuana cultivator, and obtained a warrant for her arrdst using an affidavit that identified her as such. Id. at 432-33. Whether the Peggy Hart who is to be arrested for cultivating marijuana has been correctly identified as the wife of a known marijuana cultivator is material to an evaluation of probable cause. But whether the Michael Melton who is to be arrested for assault has been correctly identified as having the middle name of David is not material. If Deputy Phillips had omitted the name “David” from his report, the judge would have been no less likely to have issued the arrest warrant. Thus, this case fails to meet the requirements of Hart. III. Importantly, the majority opinion specifically disclaims published Fifth Circuit case law in reaching its contrary conclusion. In Michalik v. Hermann, 422 F.3d" }, { "docid": "21809623", "title": "", "text": "OA at 36:09-37:33; OA at 56:54- 57:24. Moreover, Melton conceded at oral argument that he could not identify a single case applying Franks to a situation in which there was no error in the complaint and no false statement that made its way into the warrant. OA at 55:26-56:05. Indeed, Franks expressly requires a falsehood to be included in the warrant application for there to be a Fourth Amendment violation. Franks, 438 U.S. at 155-56, 98 S.Ct. 2674. Particularly in light of Franks’s detailed discussion of why its rule must be narrowly construed, we cannot say Franks clearly established the unconstitutionality of Deputy Phillips’s conduct. See id. at 165-67, 98 S.Ct. 2674. Moreover, even if Melton had attempted to satisfy his burden rather .than conceding that his case-is unique and that no case applies Franks in similar circumstances, Melton could not have shown that Deputy Phillips .violated his clearly established rights without assisting in preparing, presenting, or signing the complaint. Hart and Hampton had been decided at the time Deputy Phillips prepared the incident report. As discussed above, Hampton held that an officer is entitled to qualified immunity if he does not prepare, present, or sign a warrant application. Hampton, 480 F.3d at 365. Hart held that an officer is not entitled to qualified immunity if he “deliberately or recklessly provides false, material information for use in cm affidavit in, support of [a warrant].” Hart, 127 F.3d at 448-49 (emphasis added). Because Melton cannot show that Deputy Phillips prepared, presented, signed, or provided information for .use in the complaint, he cannot show that Deputy Phillips violated clearly established law. III. For the reasons explained above, we REVERSE the district court’s order and RENDER summary judgment for Deputy Phillips on Melton’s claim of liability under Franks. Judge Haynes concurs in the judgment and concurs as to Parts I and II.B only. . Melton’s briefs argued that the incident report’s use of the middle name ‘‘David’’ erroneously identified him as the assailant. However, the record does not show that this information ever made its way to the judge who issued the warrant," }, { "docid": "21809606", "title": "", "text": "was responsible for his arrest under Franks and Hart because Deputy Phillips included false information in his incident report. Deputy Phillips asserted the affirmative defense of qualified immunity and provided an affidavit stating broadly that the identifying information in the incident report “would have been based solely on what I was told by [the victim].” In his affidavit, Phillips also averred, as is stated in the incident report, that the victim provided the assailant’s first name, last name, gender, ethnicity, and date of birth. Melton responded by alleging that Deputy Phillips did not obtain any identifying information from the victim other than the assailant’s first and last names. Melton relied on an affidavit by former Hunt County Patrol Lieutenant Brian Alford for his explanation of how Deputy Phillips obtained the information in the incident report. According to Alford’s affidavit, victims generally cannot provide the exact date of birth or driver’s license number of an offender who is not a family relation. Therefore, Alford averred that Deputy Phillips must have obtained the information from a database called a P.I.D. used by the Hunt County Sheriffs Office. Alford further stated that Melton and the true assailant have no identifying characteristics in common other than their first and last names. Accordingly, Alford inferred that Deputy Phillips must have obtained the information in the incident report from the P.I.D. without asking the victim to verify any information other than first and last names. Finally, Alford’s affidavit averred that a reasonable officer would not rely on the P.I.D. without verifying additional information beyond first and last names. The district court determined that Alford’s affidavit created a genuine issue of material fact regarding whether Deputy Phillips obtained identifying information from the victim, whether he cross-checked that information against the P.I.D. results, whether he used the P.I.D. system at all, and whether his use of the P.I.D. system was improper. The district court reasoned that these questions were material to recklessness, which is an element of liability under Franks. Accordingly, the district court denied Deputy Phillips’s motion for summary judgment on qualified immunity with respect to Melton’s" }, { "docid": "16139276", "title": "", "text": "submit false information to obtain a warrant for his arrest. 480 F.3d at 362. The Hampton court denied qualified immunity to the single officer who actually prepared the affidavit in support of a warrant and presented it to the judge. Id. at 364. However, citing Michalik, the court granted qualified immunity to the other officers because they neither signed the affidavit nor prepared the warrant application. Hampton, 480 F.3d at 365 (citing Michalik, 422 F.3d at 261). In Jennings, a county judge contacted the district attorney's office to report what he considered was a bribery attempt by the plaintiff. 644 F.3d at 298-99. Criminal charges were subsequently brought against the plaintiff but were ultimately dismissed. Id. at 299. The plaintiff sued the judge under § 1983, claiming that the judge violated his Fourth Amendment rights by intentionally misrepresenting his conduct, thus amounting to the initiation of criminal charges without probable cause. Id. Similar to Hampton, the Jennings court applied Michalik to conclude that the judge was entitled to qualified immunity because he neither signed the affidavit in support of an arrest warrant nor testified before the grand jury. Jennings, 644 F,3d at 301. JENNIFER WALKER ELROD, Circuit Judge, dissenting: The majority opinion holds — contrary to our binding precedent — that a law enforcement officer who did not participate in the preparation or the execution of a warrant can be hable under 42 U.S.C. § 1983 when the wrong person is arrested. I respectfully dissent. I. In June 2009, Deputy Kelly Phillips interviewed an assault victim and wrote a report identifying the assailant as “Michael David Melton.” The report also contained what Deputy Phillips believed to be the assailant’s address, driver’s license number, age, and physical characteristics. This was Deputy Phillips’s sole involvement in the chain of events leading to Melton’s May 2012 arrest and detention.. After Deputy Phillips submitted his report, Investigator Jeff Haines began investigating the assault. A year later,- Haines obtained a sworn affidavit from the victim identifying his assailant as “Mike Melton.” The Hunt County Attorney’s Office then brought charges against “Michael Melton.” The assailant’s first" }, { "docid": "21809639", "title": "", "text": "to future civil plaintiffs and criminal defendants, who will be deprived of a legal remedy for similar violations of their constitutional rights. What makes this case even more significant are the legal and procedural maneuvers this court is employing in order to shield a reckless officer, bending over backwards to revive bad decisions that violated our rule of orderliness and raising arguments and defenses that the appellant did not raise. I respectfully dissent. I In June 2009, the defendant, Kelly Phillips, then a deputy with the Hunt County, Texas, Sheriffs Office, was dispatched to a hospital in Greenville, Texas, to interview the victim of an assault. The victim told Phillips that the assailant was a man he knew named “Michael Melton.” There is no dispute that the assailant was not the plaintiff, Michael David Melton, but a different man, Michael Glenn Melton, who apparently was romantically involved with the victim’s estranged wife at the time of the assault. Phillips shortly thereafter prepared an offense report in which he specifically identified the plaintiff, Michael David Melton, as the assailant, and provided his middle name, age, height, hair color, and eye color. As the district court noted, Phillips did not explain how he came to identify the plaintiff, as opposed to the true assailant, as the perpetrator in his report. According to the plaintiffs expert witness, the only possible way Phillips could have identified the plaintiff falsely as the assailant in his offense report was by entering the name “Michael Melton” into a computer database, the “Personal Identification History through net data” or “PID,” without conducting any investigation as to whether the PID-generated result matched the person identified by the victim. Phillips forwarded his report to the Criminal Investigation Division of the Hunt County Sheriffs Office. In April 2010, another officer obtained a sworn affidavit from the victim, who again identified his assailant only as “Mike Melton,” his estranged wife’s boyfriend. In July 2010, the state prosecutor filed a criminal complaint against the plaintiff, charging him with the assault. The complaint expressly stated that it was “based upon the observations of K." }, { "docid": "16139259", "title": "", "text": "Phillips, then a deputy with the Hunt County Sheriffs Office, interviewed the victim of an assault. The victim identified the attacker as his wife’s boyfriend at the time, a man named Michael Melton, apparently without providing the assailant’s middle name. Phillips then prepared an offense report and submitted it to the Sheriffs Office. The report specifically identified the plaintiff, Michael David Melton, as the suspected assailant. After he submitted his report, Phillips had no further involvement with the case. In July 2010, the state prosecutor filed a criminal complaint against the plaintiff, charging him with the assault. The complaint expressly stated that it was based upon Phillips’s offense report and provided no other basis for the information contained therein. Shortly thereafter, a Hunt County judge issued a warrant for the plaintiffs arrest, identifying him by his first and last name and by his address, which was included in Phillips’s report. The plaintiff was arrested in May 2012 and held in county jail for sixteen days before he was released on bond. In August 2012, the charge against the plaintiff was dismissed. The plaintiff filed the instant suit in state court against multiple defendants, asserting, inter alia, Fourth Amendment violations, and the suit was subsequently removed to federal court. As to Phillips, the plaintiff alleged that he intentionally or recklessly misidentified him as the assailant in the offense report, thereby leading to his arrest without probable cause. In support of his allegations, the plaintiff submitted an affidavit from a former Sheriffs Office employee, Brian Alford, who opined that Phillips likely used a computer database, the “Personal Identification History through net dáta” or “PID,” to identify the plaintiff as the suspected assailant. Specifically, Alford concluded that Phillips likely entered the name “Michael Melton” into the database and conducted no further investigation as to whether the PID-generated result matched the person identified by the victim. Phillips moved for summary judgment, asserting qualified immunity. Relevant to the instant appeal, the district court denied summary judgment on the plaintiffs Fourth Amendment claims. First, the dis trict court cited Franks v. Delaware, 438 U.S. 154, 98" }, { "docid": "16139280", "title": "", "text": "incorrect information in Hart was provided by a prosecutor as he assisted in drafting the affidavit. Id. at 433. The incorrect information in this case was provided by Deputy Phillips a year before additional investigation by. Haines, a sworn statement by the victim, and a decision to press charges by the Hunt County Attorney’s Office led to the drafting of a complaint that contained only accurate identifying information. In light of the attenuated connection between Deputy Phillips’s identification of the assailant and the application for a warrant, Deputy Phillips’s statement was not a statement provided for use in an affidavit in support of a warrant and therefore is not within the scope of Hart. Moreover, the record in this case contains no .actual evidence that Deputy Phillips acted recklessly in identifying the assailant as' “Michael David Melton.” Recklessness in -this context requires proof that the defendant “ ‘in fact entertained serious doubts as to the truth’ of the statement”. Id. at 449 (quoting St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968)). The district court’s finding of a dispute regarding recklessness relied on an affidavit by a peace officer who, without personal knowledge of the matter, speculated that Deputy Phillips used the middle name “David” in his report because he found it in a local police database using the first and last names of the assailant without any other identifiers. The affidavit does not raise a fact issue as to whether Deputy Phillips himself entertained serious doubts as to the truth of his report. Thus, the affidavit is not evidence of recklessness as defined in this context. Moreover, Melton’s counsel in a 28(j) letter acknowledged that Melton did not have a criminal record in the local police database discussed, in the affidavit, undermining any evidentiary value the affidavit may have had on this point. Even assuming arguendo that the affidavit is some evidence that Deputy Phillips acted recklessly by including the middle name “David” in his report, reliance on Hart is misplaced because the incorrect information that Deputy Phillips provided was not' material ’" }, { "docid": "21809605", "title": "", "text": "the report, an investigator with the Sheriffs Office began investigating the assault. A year later, the alleged victim provided the investigator with a sworn affidavit identifying the alleged assailant as “Mike Melton.” The Hunt County Attorney’s Office then filed a complaint against “Michael Melton.” The alleged assailant’s first and last names are the only identifying information contained in the complaint, and their accuracy is undisputed. Four days after the complaint was filed, a Hunt County judge issued a capias warrant correctly identifying the assailant as “Michael Melton.” Two years after the judge issued the warrant, Melton was arrested on assault charges and detained for sixteen days before being released on bond. It is undisputed that Deputy Phillips’s involvement ‘in the chain of events that led to Melton’s May 2012 arrest and detention ended with the incident report in June 2009. Melton v. Phillips, 837 F.3d 502, 505 (5th Cir. 2016). The assault charges against Melton were ultimately dismissed for insufficient evidence. Melton then sued Deputy Phillips under 42 U.S.C. § 1983, alleging that Deputy Phillips was responsible for his arrest under Franks and Hart because Deputy Phillips included false information in his incident report. Deputy Phillips asserted the affirmative defense of qualified immunity and provided an affidavit stating broadly that the identifying information in the incident report “would have been based solely on what I was told by [the victim].” In his affidavit, Phillips also averred, as is stated in the incident report, that the victim provided the assailant’s first name, last name, gender, ethnicity, and date of birth. Melton responded by alleging that Deputy Phillips did not obtain any identifying information from the victim other than the assailant’s first and last names. Melton relied on an affidavit by former Hunt County Patrol Lieutenant Brian Alford for his explanation of how Deputy Phillips obtained the information in the incident report. According to Alford’s affidavit, victims generally cannot provide the exact date of birth or driver’s license number of an offender who is not a family relation. Therefore, Alford averred that Deputy Phillips must have obtained the information from a database" }, { "docid": "21809638", "title": "", "text": "presented false information. Assuming the truth of Melton’s theory that the inaccurate identification came from Phillips’s use of a law enforcement database, there is no evidence indicating that Phillips \"entertained serious doubts as to the truth” of that information on which law enforcement frequently relies. Hart, 127 F.3d at 449 (quoting St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968)). JAMES L. DENNIS, Circuit Judge, joined by GRAVES, Circuit Judge, dissenting: The evidence of the nonmovant and the justifiable inferences drawn in his favor by the district court—which we may not second-guess at this interlocutory stage—establish a genuine dispute as to whether Officer Phillips acted with reckless disregard for the truth in falsely identifying the plaintiff as the perpetrator in his official report of a violent assault, resulting in the plaintiffs arrest without probable cause. The majority opinion errs in reversing the district court’s denial of qualified immunity and summary judgment to Phillips and causes injustice to the plaintiff, who should be allowed to proceed with his claim, and to future civil plaintiffs and criminal defendants, who will be deprived of a legal remedy for similar violations of their constitutional rights. What makes this case even more significant are the legal and procedural maneuvers this court is employing in order to shield a reckless officer, bending over backwards to revive bad decisions that violated our rule of orderliness and raising arguments and defenses that the appellant did not raise. I respectfully dissent. I In June 2009, the defendant, Kelly Phillips, then a deputy with the Hunt County, Texas, Sheriffs Office, was dispatched to a hospital in Greenville, Texas, to interview the victim of an assault. The victim told Phillips that the assailant was a man he knew named “Michael Melton.” There is no dispute that the assailant was not the plaintiff, Michael David Melton, but a different man, Michael Glenn Melton, who apparently was romantically involved with the victim’s estranged wife at the time of the assault. Phillips shortly thereafter prepared an offense report in which he specifically identified the plaintiff, Michael David Melton," }, { "docid": "21809628", "title": "", "text": "agent, who then innocently includes the misrepresentations in an affidavit”). Moreover, Hart fully addresses the panel's concern that an officer might seek to insulate a misstatement \"merely by relaying it through an officer-affiant personally ignorant of its falsity” because it applies Franlcs to officers who provide information for use in a warrant application. See Hart, 127 F.3d at 448 (citing Franks, 438 U.S. at 163 n.6, 98 S.Ct 2674). : As noted above, Melton has not requested a broad new rule but 'only asSerts that Deputy Phillips is liable under our circuit's existing case law. . In the alternative, the fact issues identified by the district court are not material to recklessness as defined in Hart. For purposes of liability under Franks, Hart defined recklessness to require that an officer \"in fact entertained serious doubts as to the truth” of the information included in the warrant application. Hart, 127 F.3d at 449. Even assuming arguendo that Alford correctly surmised that Deputy Phillips used the P.I.D. system without having the victim verify any identifying information other than first and last names and that a reasonable officer would not have relied on information so obtained, this would not satisfy the requirement that Deputy Phillips entertained serious doubts as to the truth of the information in the report. Melton has not pointed to any evidence on this requirement. . \"This circuit follows the rule that alternative holdings are binding precedent and not obiter dictum.” United States v. Potts, 644 F.3d 233, 237 n.3 (5th Cir. 2011). . Although neither Melton nor Deputy Phillips has briefed this prong of the qualified immunity analysis, Deputy Phillips's good-faith assertion of qualified immunity has placed the burden on Melton to demonstrate that neither prong of the defense applies. King, 821 F.3d at 653. Moreover, both parties have briefed their understanding of the law that existed at the time Deputy Phillips prepared the incident report, and reaching prong two of qualified immunity does not result in unfair prejudice. It is important to consider the defense at the earliest possible stage of litigation because qualified immunity is an immunity" }, { "docid": "21809619", "title": "", "text": "468 U.S. 897, 923, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)). The Malley wrong is not the presentment of false evidence, but the obvious failure of accurately presented evidence to support the probable cause required for the issuance of a warrant. In this situation, we have rightly recognized that liability should attach only to the “affi-ant and person who actually prepared, or was fully responsible for the preparation of, the warrant application.” Michalik, 422 F.3d at 261. That is because an officer who only provides a portion of the information included in the affidavit has no way of knowing whether the “whole picture” painted by the evidence establishes probable cause. Id. As discussed above, Franks liability—our concern here—addresses the distinct issue of false information in a warrant application. Here, the fact issue that the district court identified was whether Deputy Phillips used the P.I.D. in an improper way while preparing the incident report. The district court determined that this fact issue was material to recklessness and that Deputy Phillips’s immunity depended on whether he was reckless because, as the district court understood it, Franks applies to “any government official who makes a reckless misstatement.” However, even assuming arguendo that Deputy Phillips was reckless in completing the incident report, he is still entitled to summary judgment unless there is a question of fact as to whether he assisted in the preparation of the complaint on the basis of which the capias warrant issued. See Jennings, 644 F.3d at 300-01; Hampton, 480 F.3d at 365. Melton seeks to create a fact issue as to whether Deputy Phillips helped prepare the complaint by providing information for use in it, asserting that “[a]ny investigator would know” an incident report will be used to obtain a warrant. However, there is no record evidence of a policy or practice at the Hunt County Sheriffs Office that would have allowed Deputy Phillips to anticipate that the incident report would be used to obtain a warrant. See OA at 38:25-40:40. Nor, as Melton has conceded, is there record evidence suggesting that Deputy Phillips knew this specific report would" } ]

[ { "docid": "1026703", "title": "", "text": "estate. Since retroactive application of § 1213 has not been shown irrational, the Committee has failed to establish a denial of substantive due process under the Fifth Amendment. Conclusion For the reasons stated above, the Bank is entitled to judgment under § 1213 of BAPCPA. A separate order will be entered to that effect. . At the time, § 550 provided that: (a)Except as otherwise provided in this section, to the extent that a transfer is avoided under section ... 547, ... the trustee may recover, for the benefit of the estate, the property transferred or if the court so orders, the value of such property, from— (1) the initial transferee of such transfer or the entity for whose benefit such transfer was made, or (2) any immediate or mediate transferee of such initial transferee. (b) The trustee may not recover under section (a)(2) of this section from— (1) a transferee that takes for value, including satisfaction or securing of a present or antecedent debt, in good faith, and without knowledge of the voidability of the transfer avoided; or (2) any immediate or mediate good faith transferee of such transferee. (c) The trustee is entitled to only a single satisfaction under subsection (a) of this section. 11 U.S.C. § 550 (1989). . Section 551 provides as follows: Any transfer avoided under section 522, 544, 545, 547, 548, 549, or 724(a) of this title, or any lien void under section 506(d) of this title, is preserved for the benefit of the estate but only with respect to property of the estate. 11 U.S.C. § 551 (2005). . In Wright, the Supreme Court held that Section 75(s) of the Bankruptcy Act of 1933, extending the period of time for a debtor’s redemption of foreclosed property, violated neither the Takings Clause nor the Tenth Amendment. In the latter context, the Court observed that \"[bjankruptcy proceedings constantly modify and affect the property rights established by state law,” and that \"[a] familiar instance is the invalidation of transfers working a preference, though valid under state law when made.\" 304 U.S. at 517, 58 S.Ct. 1025." } ]

[ { "docid": "18536631", "title": "", "text": "B.R. 503, 505 (Bankr.M.D.Fla.1987). Finally, plaintiff seeks to have personal liability assessed against defendant for the avoided transfer pursuant to 11 U.S.C. § 550, which provides: (a) Except as otherwise provided in this section, to the extent that a transfer is avoided under section 544, 545, 547, 548, 549, 553(b), or 724(a) of this title, the trustee may recover, for the benefit of the estate, the property transferred, or, if the court so orders, the value of such property, from— (1) the initial transferee of such transfer or the entity for whose benefit such transfer was made.... In the case at bar, plaintiff is entitled to recover the one thousand shares of stock for the benefit of the estate because 1) the transfer to defendant Margaret Applewhite is avoided under § 544(b) and 2) she was the initial transferee of the interest. Conclusion Plaintiff; having filed a chapter 11 petition on December 21, 1987, and this adversary proceeding on July 21, 1991, failed to comply with the statutory limitations of § 546(a)(1) with regard to Count I. Accordingly, the Court will enter summary judgment for defendants on Count I. The transfer of Thomas Applewhite’s interest in the stock shares to defendant Margaret Applewhite was a fraudulent conveyance under Fla.Stat. ch. 726.105 and, therefore, avoidable pursuant to § 544(b). The transfer having been avoided, § 550 permits recovery of the interest from defendant Margaret Applewhite because she was the initial transferee. Thus, summary judgment will be entered for plaintiff on Count III." }, { "docid": "10516722", "title": "", "text": "estate, the sum of $76,207, which represents the value of the Debtor’s interest in the proceeds distributed to Carlos from the sale of the Union Court Property. Under $550(d), the Trustee is entitled to only a single satisfaction from Carlos pursuant to Counts V and VI of the amended complaint. This Opinion constitutes the Court’s findings of fact and conclusions of law in accordance with Federal Rule of Bankruptcy Procedure 7052. A separate order shall be entered pursuant to Federal Rule of Bankruptcy Procedure 9021. . As discussed in detail infra, the Court entered an amended default judgment against Christine and in favor of the Trustee. Thus, Count VII of the amended complaint, which seeks relief against Christine, has been disposed of and will not be further addressed in this Opinion. . The Trustee does not seek recovery of the amount paid to the mortgagee. . The FBN Food Seivs. case references § 548(a)(2). Section 548(a)(1)(B)(i)-(ii) was formerly designated as § 548(a)(2)(A)-(B) before amendment by the Religious Liberty and Charitable Donation Protection Act of 1998, Pub.L. No. 105-183, effective for cases pending or commenced on or after June 19, 1998. . The Trustee docs not specify in his amended complaint whether he is seeking relief under subsection (a) or (b) of § 160/6. Thus, the Court will address both subsections. . An important difference between § 548 and the UFTA is that § 548 authorizes avoidance of transfers made within two years before the bankruptcy filing. 11 U.S.C. § 548(a). Certain causes of action for fraudulent conveyances can be brought under the UFTA, however, within four years after the transfer was made. 740 ill. comp. stat. 160/10(a) & (b). Three of the four transfers at issue were made within the two-year period under the Bankruptcy Code. Hence, the Trustee may proceed under both the Code and the UFTA." }, { "docid": "769636", "title": "", "text": "from which they could receive a distribution. The Debtor’s subsequent bankruptcy filing less than a year later, which shows an insolvency that long preceded the filing date, is proof of the transfer’s adverse effect on the Debtor’s unsecured creditors. Accordingly, the Court grants judgment in favor of the Trustee and against Dale and Sandra under Count II of the complaint. However, the Court will not enter an order allowing the Trustee to recover the Aurora Property from Dale and Sandra. Rather, pursuant to § 550(a)(2), the Trustee may recover from Dale and Sandra, for the benefit of the Debtor’s estate, the sum of $20,000.00. This amount represents the value of the Debtor’s one-half interest in the equity in the Aurora Property, $28,500.00, less the $8,500.00 he received in property under the Settlement Agreement. C. Count III: 740 III. Comp. Stat. 160/5 and 160/9(b) In Count III of the complaint, the Trustee seeks to avoid the alleged fraudulent transfer of the Debtor’s interest in the Aurora Property to Jodi pursuant to § 160/5 of the Illinois Uniform Fraudulent Transfer Act (the “UFTA”), 740 III. Comp. Stat. 160/5. In addition, the Trustee seeks an order allowing him to recover from Jodi, for the benefit of the Debtor’s estate, the value of the Aurora Property transferred by the Debtor to Jodi under § 160/9(b) of the UFTA, 740 III. Comp. Stat. 160/9(b). Section 544(b)(1) of the Bankruptcy Code expressly authorizes a trustee to avoid a transfer voidable under applicable state law, although the Trustee in the matter at bar did not specifically assert as much in his complaint. Section 544(b)(1) provides in pertinent part as follows: [T]he trustee may avoid any transfer of an interest of the debtor in property ... that is voidable under applicable law by a creditor holding an unsecured claim that is allowable under section 502 of this title or that is not allowable only-under section 502(e) of this title. 11 U.S.C. § 544(b)(1). This section expressly authorizes a trustee to avoid a transfer voidable under applicable state law. Furthermore, if a transfer is avoided under § 544(b)(1), it" }, { "docid": "18835456", "title": "", "text": "of a number of cases involving similar fact patterns which hold that a conveyance of entireties property is a conveyance of “property of the debtor.” E.g. In re Parameswaran; 50 B.R. 780 (Bkrtcy.S.D.N.Y.1985). In those cases however, the applicable state law regarding entireties property differs from Florida law, in that one co-tenant’s interest in the property is not immune from levy by a creditor of one spouse alone. Because the Trustee has failed to prove that the property transferred was “property of the debtor,” the Court need not address the issue of the Debtor’s alleged fraudulent intent in the complained transfers. The Court finds for the Debt- or/defendant on Count I of the Complaint. Fraudulent Transfer and Declaratory Judgment In Counts II and III of the Complaint, the Plaintiff/Trustee seeks to set aside the transfers to defendants Charles C. Space, Jill H. Space, and Classic Lifestyle Homes, Inc., f/k/a Peeples Builders, Inc., as fraudulent pursuant to 11 U.S.C. Sections 548 and 550. The statute dealing with fraudulent transfers reads in relevant part, as follows: Section 548. Fraudulent transfers and obligations a) The Trustee may avoid any transfer of an interest of the debtor in property ... made or incurred on or within one year before the date of the filing of the petition, if the debtor voluntarily or involuntarily- (1) made such transfer ... with actual intent to hinder, delay, or defraud any entity ... or (2) (A) received less than a reasonable equivalent value in exchange for such transfer ... and (B) (i) was insolvent on the date such transfer was made.... The clear intent of the statute is to allow the Trustee to recover, for the benefit of the creditors of the estate, any assets which would have become property of the bankruptcy estate under 11 U.S.C. Section 541 had the debtor not wrongfully transferred the assets prior to filing a bankruptcy petition. In order to avoid a transfer under Section 548, the Trustee must prove that the transfer was a transfer “of an interest of the debtor in property.” If the debtor had no interest in the" }, { "docid": "10516720", "title": "", "text": "only a single satisfaction from Schlossberg pursuant to Counts I and II of the amended complaint. With respect to Count III of the amended complaint, the Court grants judgment in favor of Laliberte and against the Trustee. The Court finds that the transfer of the Debtor’s interest in the Union Court Property to Laliberte was outside the two-year period under § 548(a)(1)(A) and (B). Under' Count IV of the amended complaint, the Court grants judgment in favor of the Trustee and against Laliberte. The Court finds that the transfer of the Debt- or’s interest in the Union Court Property was a fraudulent conveyance under §§ 160/5(a)(l) and (2) and 160/6(a) of the UFTA. As such, the transfer is avoidable under § 544(b)(1) and § 160/8(a)(l). Pursuant to § 550(a)(1) and § 16079(b) of the UFTA, the Trustee may recover from La-liberte, for the benefit of the Debtor’s estate, the sums of $120,000 and $52,357.54, which represent the value of the Debtor’s interest in the Union Court Property received by Laliberte. With respect to Count V of the amended complaint, the Court enters judgment in favor of the Trustee and against Carlos. The Court finds that the transfer of the Debtor’s interest in the Union Court Property to Carlos was a fraudulent conveyance under § 548(a)(1)(A) and (B). As such, the transfer is avoidable under § 544(b)(1). Pursuant to § 550(a)(2), the Trustee may recover from Carlos, for the benefit of the Debtor’s estate, the sum of $76,207, which represents the value of the Debtor’s interest in the proceeds distributed to Carlos from the sale of the Union Court Property. Finally, the Court grants judgment in favor of the Trustee and against Carlos pursuant to Count VI of the amended complaint. The Court finds that the transfer of the Union Court Property to Carlos was a fraudulent conveyance under §§ 160/5(a)(l) and (2) and 160/6(a) of the UFTA. As such, the transfer is avoidable under § 544(b)(1) and § 160/8(a)(l). Pursuant to $550(a)(2) and § 160/9(b)(2) of the UFTA, the Trustee may recover from Carlos, for the benefit of the Debtor’s" }, { "docid": "10758590", "title": "", "text": "(In re Miller), rights arising under §§ 550 and 551 are derivative of rights of recovery stemming from an unauthorized post-petition transfer and should therefore be construed as simply part of the Trustee’s action to avoid the post-petition transfer pled in Count III. See 467 B.R. 677, 680 (Bankr.D.Mass.2012). Count VII therefore requires no separate determination of its core status. Accordingly, Counts III and VII of the Complaint are statutory core proceedings in which I may enter a final order or judgment. (b) Constitutional Authority Under Article III An action pursuant to 11 U.S.C. § 549 to recover an unauthorized post-petition transfer of property of the estate “stems from the bankruptcy itself.” See Stern, 131 S.Ct. at 2618; In re Innovative Commc’n Corp., 2011 WL 3439291, at *3 (“An action to avoid and recover unauthorized postpetition transfers pursuant to 11 U.S.C. § 549 is purely a creation of the Bankruptcy Code and does not otherwise exist outside of Title 11.”). Congress enacted § 549 to ensure the equal distribution of the bankruptcy res among creditors by giving the trustee or debtor in possession a remedy for recovery of unauthorized transfers of property of the estate. The role of § 549 in protecting the bankruptcy estate was explained by the bankruptcy court in In re Ford: The filing of a bankruptcy case thus vests exclusive jurisdiction over the debtor’s property in the bankruptcy court so that the bankruptcy court can control its administration. With regard to property, the bankruptcy case is in rem; the property of the debtor and of the estate is in custodia legis. Such property cannot be removed from the bankruptcy court’s exclusive jurisdiction except by appropriate proceedings in the bankruptcy court. Section 362(a) prohibits involuntary removal of assets unless permitted by lifting of the stay while other sections (such as § 363 and § 554) provide for the voluntary disposition of assets during administration of the case if authorized. Section 549(a) provides a remedy for the avoidance of voluntary transfers that are unauthorized [.] 296 B.R. 537, 548 (Bankr.N.D.Ga.2003). Unlike the counterclaim in Stem, the recovery of" }, { "docid": "4363806", "title": "", "text": "law against Huntington. Michigan, like many other states, has adopted the Uniform Fraudulent Transfer Act (“UFTA”). The UFTA’s counterpart to Section 548(a)(1)(A) is not as specific as to what may be avoided. It refers simply to a “transfer” as opposed to a “transfer ... of an interest of the debtor in property.” (1) A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor’s claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation in either of the following: (a) With actual intent to hinder, delay, or defraud any creditor of the debt- or. Mioh-Comp. Laws. § 566.34(l)(a), However, the UFTA eliminates whatever vagueness there might be by then excluding from the meaning of transfer “property to the extent it is encumbered by a valid lien.” Mich. Comp. Laws § 566.31(b)®. See also, Mich. Comp. Laws §§ 566.31(h), (l), and (m). Therefore, the UFTA incorporates the same concept as Section 548: a debtor can fraudulently transfer to another only that which the debtor actually owns. The UFTA just expresses the concept in a different way. Therefore, Count III of the amended complaint must be dismissed for the same reason as Count II. F. Recovery of Avoided Transfers Under 11 U.S.C. 542 and 550 (Amended Count V and Original Count IX) Section 547, and for that matter, Sections 548(a) and 544(b), permit only the avoidance of the transfer in question. Recovery of the transfer is a different matter. It is addressed by Section 550. (a) Except as otherwise provided in this section, to the extent that a transfer is avoided under section 544, 545, 547, 548, 549, 553(b), or 724(a) of this title, the trustee may recover, for the benefit of the estate, the property transferred, or, if the court so orders, the value of such property, from&emdash; (1) the initial transferee of such transfer or the entity for whose benefit such transfer was made; or (2) any immediate or mediate transferee of such initial transferee. 11 U.S.C. § 550(a)." }, { "docid": "10516607", "title": "", "text": "of the second property, which represent the value of the Debtor’s interests in those properties received by Schlossberg. Under 11 U.S.C. § 550(d), the Trustee is limited to only a single satisfaction from Schlossberg pursuant to Counts I and II of the amended complaint. With respect to Count III of the amended complaint, the Court grants judgment in favor of Laliberte and against the Trustee. The Court finds that the July 2003 transfer of the Debtor’s interest in real property located at 1073 Union Court, Bartlett, Illinois to Laliberte was not made on or within two years before the date of the Debtor’s bankruptcy filing under 11 U.S.C. § 548(a)(1)(A) and (B). Under Count IV of the amended complaint, the Court grants judgment in favor of the Trustee and against Laliberte. The Court finds that the transfer of the Debt- or’s interest in real property located at 1073 Union Court, Bartlett, Illinois was a fraudulent conveyance under 740 ill. comp, stat. 160/5(a)(l) and (2) and 160/6(a). As such, the transfer is avoidable under 11 U.S.C. § 544(b)(1) and 740 ill. oomp. stat. 160/8(a)(l). Pursuant to 11 U.S.C. § 550(a)(1) and 740 ill. oomp. stat. 160/9(b), the Trustee may recover from Laliberte, for the benefit of the Debtor’s estate, the sums of $120,000 and $52357.54, which represent the value of the Debtor’s interest in that property received by Laliberte. With respect to Count V of the amended complaint, the Court enters judgment in favor of the Trustee and against Carlos. The Court finds that the transfer to Carlos of the Debtor’s interest in real property located at 1073 Union Court, Bartlett, Illinois was a fraudulent conveyance under 11 U.S.C. § 548(a)(1)(A) and (B). As such, the transfer is avoidable under 11 U.S.C. § 544(b)(1). Pursuant to 11 U.S.C. § 550(a)(2), the Trustee may recover from Carlos, for the benefit of the Debtor’s estate, the sum of $76,207, which represents the value of the Debtor’s interest in the proceeds distributed to Carlos from the sale of the real property. Finally, the Court grants judgment in favor of the Trustee and against Carlos" }, { "docid": "15276510", "title": "", "text": "transferee of a transfer avoidable under section 522(f), 522(h), 544, 545, 547, 548, 549, or 724(a) of this title, unless such entity or transferee has paid the amount, or turned over any such property, for which such entity or transferee is liable under section 522(f), 542, 543, 550, or 553 of this title. 11 U.S.C. § 502. The mandatory language “shall” makes it necessary to resolve the issues referred to in the statute unless the party filing a proof of claim either turns over the property or pays for it. Section 544(b)(1) gives the trustee authority to avoid a transfer of the debtor’s property under applicable non-bankruptcy law, while § 548 is the Bankruptcy Code’s fraudulent conveyance statute. Here, La-Salle filed a proof of claim for $60,139,317.04 on March 10, 2004. Claim 529-1. Counts VIII and IX were brought pursuant to § 544(b)(1), and Count X was brought pursuant to § 548. Therefore, under both Stem and Peterson, final judgment may be entered here because the issues are necessarily involved in the claims allowance process. The Sixth Circuit has similarly held it to be “crystal clear” that bankruptcy judges have constitutional authority to enter final judgments on state law fraudulent transfer claims when the defendant has filed a proof of claim sufficiently related to the fraudulent transfer. Onkyo Eur. Elecs. GMBH v. Global Technovations, Inc. (In re Global Technovations), 694 F.3d 705, 722 (6th Cir.2012). Global Technovations expressly relied upon the fact that the defendant filed a proof of claim against the bankruptcy estate such that the case was “fundamentally unlike Granfinanciera, where the bankruptcy estate reached out to file a fraudulent-transfer claim against a party who had filed no claim against the estate.” Id. The Opinion reasoned that the defendant “brought itself voluntarily into the bankruptcy court.” Id. Furthermore, the fraudulent transfer claim was a defense to the defendant’s proof of claim. Id. Therefore, the Opinion reasoned, “ ‘it was not possible ... to rule on [the defendant’s] proof of claim without first resolv ing’ the fraudulent transfer issue.’” Id. (citing Stern, 131 S.Ct. at 2616). The Ninth Circuit’s" }, { "docid": "15240467", "title": "", "text": "be entitled to recover such amounts. Mr. Jacobson admits that he received payments for these alleged loans totaling $1,190.00 during the year prior to the Debtor’s bankruptcy. (See Order Exhibit B attached hereto). The Trustee’s expert testimony established that these transfers were for more than Mr. Jacobson would have received in a chapter 7 liquidation had the transfers not been made. Accordingly, the Trustee is entitled to judgment against Harvey Jacobson on Count VI in the amount of $1,190.00 and the Court shall enter same by separate judgment. 5. 11 U.S.C. § 550(a) Under 11 U.S.C. § 550(a), “[t]o the extent that a transfer is avoided under section ... 544... of this title, the trustee may recover, for the benefit of the estate, the property transferred, or, if the court so orders, the value of such property.” Once the Trustee has established that an identified transfer is avoidable, the Trustee may recover the entire fraudulent transfer under § 550(a). Moore v. Bay, 284 U.S. 4, 52 S.Ct. 3, 76 L.Ed. 133 (1931); see also Myers v. Brook, 708 So.2d 607 (Fla. 2nd Dist.Ct.App.1998). Section 550(a) is intended to restore the estate to the financial condition it would have enjoyed if the transfer had not occurred. Morris v. Kansas Drywall Supply Company, Inc. (In re Classic Drywall, Inc.), 127 B.R. 874, 876 (D.Kan.1991); Pritchard v. Brown (In re Brown), 118 B.R. 57, 60 (Bankr.N.D.Tex.1990); Tidwell v. Chrysler Credit Corp. (Matter of Blackburn), 90 B.R. 569, 573 (Bankr.M.D.Ga.1987). As discussed above, the Court shall enter judgment so that the Trustee may recover the avoided transfers from Harvey and Barbara Jacobson. C. Turnover, accounting, injunctive relief (Counts VII, XIII, XIV, XVIII) “[A]n entity, other than a custodian, in possession, custody, or control ... of property that the trustee may use, sell, or lease ... shall deliver to the trustee, and account for, such property or the value of such property ....\" 11 U.S.C. § 542(a); In re Bidlofsky, 57 B.R. 883, 900 (Bankr.E.D.Mich.1985). Discount Water and/or the Jacobsons retain possession of the Debtor’s telephone number, and customer list. The Trustee may use, sell" }, { "docid": "10516608", "title": "", "text": "§ 544(b)(1) and 740 ill. oomp. stat. 160/8(a)(l). Pursuant to 11 U.S.C. § 550(a)(1) and 740 ill. oomp. stat. 160/9(b), the Trustee may recover from Laliberte, for the benefit of the Debtor’s estate, the sums of $120,000 and $52357.54, which represent the value of the Debtor’s interest in that property received by Laliberte. With respect to Count V of the amended complaint, the Court enters judgment in favor of the Trustee and against Carlos. The Court finds that the transfer to Carlos of the Debtor’s interest in real property located at 1073 Union Court, Bartlett, Illinois was a fraudulent conveyance under 11 U.S.C. § 548(a)(1)(A) and (B). As such, the transfer is avoidable under 11 U.S.C. § 544(b)(1). Pursuant to 11 U.S.C. § 550(a)(2), the Trustee may recover from Carlos, for the benefit of the Debtor’s estate, the sum of $76,207, which represents the value of the Debtor’s interest in the proceeds distributed to Carlos from the sale of the real property. Finally, the Court grants judgment in favor of the Trustee and against Carlos pursuant to Count VI of the amended complaint. The Court finds that the transfer of the real property located at 1073 Union Court, Bartlett, Illinois to Carlos was also a fraudulent conveyance under 740 ill. oomp. stat. 160/5(a)(l) and (2) and 160/6(a). As such, the transfer is avoidable under 11 U.S.C. § 544(b)(1) and 740 ill. oomp. stat. 160/8(a)(l). Pursuant to 11 U.S.C. § 550(a)(2) and 740 ill. oomp. stat. 160/9(b)(2), the Trustee may recover from Carlos, for the benefit of the Debtor’s estate, the sum of $76,207, which represents the value of the Debtor’s interest in the proceeds distributed to Carlos from the sale of the real property. Under 11 U.S.C. § 550(d), the Trustee is entitled to only a single satisfaction from Carlos pursuant to Counts V and VI of the amended complaint. I. JURISDICTION AND PROCEDURE The Court has jurisdiction to entertain this matter pursuant to 28 U.S.C. § 1334 and Internal Operating Procedure 15(a) of the United States District Court for the Northern District of Illinois. This is a core proceeding" }, { "docid": "15809601", "title": "", "text": "Property of a bankruptcy estate under 11 U.S.C. § 541(a) is not property of the debtor or debtor in possession. However, the UFTA only applies to transfers by a debtor (in the general, not the bankruptcy sense) of the debtor’s own property. A fraudulent transfer is a transfer made by a debtor. Haw.Rev.Stat. § 651C-4(a). The “transfer” must be of an “asset”. Haw.Rev.Stat. § 651C-1. The term “asset” means property of a debtor. Haw. Rev.Stat. § 651C—1. The postpetition transfers described in count XI of the second amended complaint were allegedly made by Sia, defendants, and others. None of them were UFTA debtors making transfers making transfers of their own assets. No authorities have been provided, and the court has found none, indicating the ability of a bankruptcy trustee to use the UFTA to avoid postpetition misappropriation, theft or conversion of property of a bankruptcy estate. The absence of authorities supports the conclusion that post-petition transfers are not within the ambit of fraudulent conveyance legislation. Other remedies are available to deal with the conduct alleged by the trustee. Misdeeds with property of a bankruptcy estate may be criminal under Chapter 9, Title 18, United States Code. Unauthorized transfers of estate property are avoidable by a trustee under 11 U.S.C. § 549, the subject of count I of the second amended complaint. Under § 549, it is unnecessary to prove the usual requirements of fraudulent transfers, such as intent, reasonably equivalent value, insolvency, and the like. Count XI fails to state a claim. The motion to dismiss will be granted, with leave to amend. Leave to amend is being given, because the issue of the applicability of the UFTA to postpetition misappropriation or concealment of property of a bankruptcy estate has not been previously argued by the parties. F. Transferee liability (Count III) To the extent that the trustee is able to avoid prepetition fraudulent conveyances under § 544(b)(1) or postpetition transfers under § 549, the value of the property transferred is recoverable from transferees. 11 U.S.C. § 550. Sections 544(b)(1) and 549 determine only which transactions are avoidable. Section 550" }, { "docid": "10516721", "title": "", "text": "of the amended complaint, the Court enters judgment in favor of the Trustee and against Carlos. The Court finds that the transfer of the Debtor’s interest in the Union Court Property to Carlos was a fraudulent conveyance under § 548(a)(1)(A) and (B). As such, the transfer is avoidable under § 544(b)(1). Pursuant to § 550(a)(2), the Trustee may recover from Carlos, for the benefit of the Debtor’s estate, the sum of $76,207, which represents the value of the Debtor’s interest in the proceeds distributed to Carlos from the sale of the Union Court Property. Finally, the Court grants judgment in favor of the Trustee and against Carlos pursuant to Count VI of the amended complaint. The Court finds that the transfer of the Union Court Property to Carlos was a fraudulent conveyance under §§ 160/5(a)(l) and (2) and 160/6(a) of the UFTA. As such, the transfer is avoidable under § 544(b)(1) and § 160/8(a)(l). Pursuant to $550(a)(2) and § 160/9(b)(2) of the UFTA, the Trustee may recover from Carlos, for the benefit of the Debtor’s estate, the sum of $76,207, which represents the value of the Debtor’s interest in the proceeds distributed to Carlos from the sale of the Union Court Property. Under $550(d), the Trustee is entitled to only a single satisfaction from Carlos pursuant to Counts V and VI of the amended complaint. This Opinion constitutes the Court’s findings of fact and conclusions of law in accordance with Federal Rule of Bankruptcy Procedure 7052. A separate order shall be entered pursuant to Federal Rule of Bankruptcy Procedure 9021. . As discussed in detail infra, the Court entered an amended default judgment against Christine and in favor of the Trustee. Thus, Count VII of the amended complaint, which seeks relief against Christine, has been disposed of and will not be further addressed in this Opinion. . The Trustee does not seek recovery of the amount paid to the mortgagee. . The FBN Food Seivs. case references § 548(a)(2). Section 548(a)(1)(B)(i)-(ii) was formerly designated as § 548(a)(2)(A)-(B) before amendment by the Religious Liberty and Charitable Donation Protection Act of 1998," }, { "docid": "4363807", "title": "", "text": "fraudulently transfer to another only that which the debtor actually owns. The UFTA just expresses the concept in a different way. Therefore, Count III of the amended complaint must be dismissed for the same reason as Count II. F. Recovery of Avoided Transfers Under 11 U.S.C. 542 and 550 (Amended Count V and Original Count IX) Section 547, and for that matter, Sections 548(a) and 544(b), permit only the avoidance of the transfer in question. Recovery of the transfer is a different matter. It is addressed by Section 550. (a) Except as otherwise provided in this section, to the extent that a transfer is avoided under section 544, 545, 547, 548, 549, 553(b), or 724(a) of this title, the trustee may recover, for the benefit of the estate, the property transferred, or, if the court so orders, the value of such property, from&emdash; (1) the initial transferee of such transfer or the entity for whose benefit such transfer was made; or (2) any immediate or mediate transferee of such initial transferee. 11 U.S.C. § 550(a). Huntington concedes that Section 550 is a necessary adjunct to Trustee’s remaining preference count and that Count V of Trustee’s amended complaint properly pleads relief under that section. However, Huntington does challenge Trustee’s inclusion of Section 542 as an alternative basis for recovering from Huntington the value of whatever transfers the court may ultimately avoid as preferential under Section 547. Section 542 empowers the court to compel an entity to deliver to the bankruptcy trustee any “property that the trustee may use, sell or lease under Section 363 of this title....” 11 U.S.C. § 542(a). Section 363, in turn, provides that the bankruptcy trustee may use, sell, or lease only “property of the estate.” 11 U.S.C. § 363(b)(1). Consequently, it stands to reason that Section 542 is available as a remedy only when the bankruptcy estate already has an interest in the property sought to be turned over. For example, a trustee would use Section 542 to recover a vehicle owned by the debtor but in the possession of another party. However, avoidance actions do" }, { "docid": "17913051", "title": "", "text": "by the transferee, but only if the transferee provides that value in good faith. [I]n evaluating whether a transferee has established an affirmative defense under Section 548(c), a court is required to consider whether the transferee actually was aware or should have been aware, at the time of the transfers ... that the transferor-debtor intended to “hinder, delay, or defraud any entity to which the debtor was or became ... indebted.” Gold v. First Tenn. Bank Nat’l Assoc. (In re Taneja), 743 F.3d 423, 430 (4th Cir. 2014) (quoting 11 U.S.C. § 548(a)(1)). This defense is inapplicable here, because the principal transferees — Arun and Anu — were fully aware of their parents’ efforts to hinder creditors, as indicated by their repeated actions in cooperation with their parents’ transfers. Whatever value they provided in connection with the trans ferred property was not provided in good faith. On the other hand, Section 550(d) of the Code sets out a defense that does apply to some of the recoveries sought by the Estate; as discussed below, the trustee is entitled only to a “single satisfaction” for each avoided transfer. 3. Resolution of the fraudulent transfer counts Count I Count I of the amended complaint alleges that defendants Arun and Anu' were the initial transferees of a series of fraudulent cash transfers, totaling $18.6 million. As discussed above, the senior Veluchamys made these payments with the intent to hinder and delay their creditors. Arun received $8,495,453 in fraudulent transfers; Anu received $10,109,648. They are hable to the Estate in those amounts, subject to the single satisfaction rule of 11 U.S.C. § 550(d). Arun and Anu point out that they gave a portion of the cash transfers treated by Count I to Oakbrook Financial (“OBF”) and that Count V of the complaint seeks recovery of $5.9 million from OBF as a subsequent transferee of the cash received by Arun and Anu. See 11 U.S.C. § 550(a)(2) (2012) (providing for liability of subsequent transferees). The Estate obtained a default judgment against OBF on Count V and has been able to recover $3,094,730 from OBF in" }, { "docid": "3470211", "title": "", "text": "548. This is a common outcome in preference litigation — a successful defense that there was no antecedent debt for § 547(b)(2) pur poses generates the predicate for a fraudulent conveyance action under § 548. The facts alleged in paragraphs 50, 51 and 52 with respect to transfers of cash by the debtors during the year before bankruptcy can satisfy the specificity requirements for the fraudulent conveyance cause of action alleged in Count 1. Finally, Count 12 together with paragraph 26 also allege conduct that falls within § 548. The debtors incurred debts within the year before bankruptcy for the benefit of the Controlling Customers, totaling $750,000. This money was paid to CF and CMD in connection with the Accommodation Agreement. Incurring debt for the benefit of the Controlling Customers can be a fraudulent conveyance under § 548(a)(1). CF, CMD and the Controlling Customers would be transferees and beneficiaries subject to liability under § 550(a)(1) and (2). B. Count 2 The turnover action against Defendant Zanini has been settled. C. Count 3 Count 3 is a demand for turnover under § 542. Count 3 alleges that Buerger and DMW received $5.2 million from Defendant Zanini (when Zanini purchased assets from DMW after the bankruptcy petitions) which belongs “in whole or in part” to the bankruptcy estates of DMC and DMT. The First Amended Complaint alleges that DMW was without value at the end of 1999 and that DMW came to have assets and valuable business interests only because the Defendants looted DMC and DMT by moving its assets and business operations into DMW. Counts 1, 2, 6 and 12 and Exhibit A specifically describe many transfers of assets from DMC and DMT to DMW that may have been fraudulent under § 548(a). 11 U.S.C. § 541(a)(3) includes in property of the estate, any interest in property the trustee recovers under § 550, which includes any recovery under § 548(a). The complaint alleges that the assets sold by DMW to Zanini were property of the bankruptcy estates and that the trustee protested that sale in March of 2003. The Defendants’ DMW" }, { "docid": "8704384", "title": "", "text": "MEMORANDUM OPINION A. BENJAMIN GOLDGAR, Bankruptcy Judge. A chapter 7 trustee administering a debtor’s estate will often sell the debtor’s house to pay creditors. In this case, chapter 7 trustee Joel Schechter wants to sell the house of the debtor’s parents, Russell and Naoma Weiler. According to Schechter, debtor Karissa Blair, the Weilers’ daughter, has an interest in the house that became part of her bankruptcy estate when she filed her petition. Schechter claims a sale of the entire property is warranted under section 368(h) of the Bankruptcy Code, 11 U.S.C. § 363(h). In 2003, Schechter filed a two-count adversary complaint against the Weilers, Blair, and Joanna Zeiller, a judgment creditor of Blair who recorded her judgment against the property. Count I sought permission from the court to sell the property free and clear of liens under section 363(h). Count II sought to avoid Zeiller’s judgment lien as a preference pursuant to section 547(b). Schechter later filed an amended complaint adding a third count. The third count invoked section 549(a) and sought to avoid Blair’s post-petition transfer of her interest back to her parents. Schechter and the Weilers have now filed cross-motions for summary judgment on Counts I and III of the complaint. Schechter also moves for a default judgment against Blair on Counts I and III and against Zeiller on Count II. For the reasons discussed below, Schechter’s motion for summary judgment on Counts I and III of the amended complaint will be granted. His motion for default judgments against Blair and Zeiller will also be granted. The Weilers’ motion for summary judgment will be denied. 1. Jurisdiction The court has subject matter jurisdiction over this case pursuant to 28 U.S.C. § 1334(a) and the district court’s Internal Operating Procedure 15(a). This is á core proceeding. 28 U.S.C. § 157(b)(2)(A), (E), (F), and (N). The court may therefore enter a final judgment. In re Smith, 848 F.2d 813, 816 (7th Cir.1988). 2. Facts The following facts are undisputed. Russell and Naoma Weiler live in Beach Park, Illinois, and are the parents of debt- or Karissa Blair. The Weilers own" }, { "docid": "16512727", "title": "", "text": "the court is unable to find or conclude that the transfers were made with the actual intent to defraud creditors. Because the transfers in question consisted of lease payments, failure to make the transfers would constitute a default under the lease, and the debtor would have been subject to negative consequences such as eviction. The “badges of fraud” are meant to help a court in determining whether a transfer was fraudulent. The “badges of fraud” are not persuasive in this case because there is a plausible non-fraudulent explanation for the transfers. The court finds and concludes that the transfers were not made with the intent to hinder, delay, or defraud any creditor of the debtor. The transfers were necessary to maintain possession of the property and stay in business. Accordingly, judgment will be entered in favor of the defendants on counts II and IV. 2. Count VI — Disallowance of Claims The plaintiff is seeking disallowance, pursuant to section 502(d), of various claims and counterclaims made by EPC against the bankruptcy estate. Section 502(d) states, in pertinent part: Notwithstanding subsections (a) and (b) of this section, the court shall disallow any claim of any entity from which property is recoverable under section ... 550 ... of this title ... unless such entity ... had paid the amount, or turned over any such property, for which such entity ... is liable under section ... 550 ... of this title. Because, as discussed above, the court has determined that there is no property recoverable under section 550, none of the defendants’ claims will be disallowed pursuant to section 502(d), and judgment will be entered in favor of the defendants on count VI. S. Count VII — Breach of Contract To prevail on its claim for breach of contract under Illinois Law, the plaintiff must show, by a preponderance of the evidence, that: 1) a valid contract existed between EMC and EPC; 2) EPC breached that contract; 3) EMC substantially preformed its obligation under the contract; and 4) EPC’s breach damaged EMC. Van Der Molen v. Washington Mut. Finance, Inc., 359 Ill.App.3d 813," }, { "docid": "10758592", "title": "", "text": "an unauthorized post-petition transfer will not “augment the estate.” See 131 S.Ct. at 2618. Because the property recovered through a § 549 action was already estate property prior to the transfer, all § 549 seeks to do is restore property of the estate to the control of the bankruptcy court for proper administration. In this respect § 549 actions differ from actions to recover fraudulent conveyances, which, by definition, do not involve assets that were property of the estate on the petition date. Contrast 11 U.S.C. § 549(a) (allowing the trustee to avoid “a transfer of property of the estate”) with §§ 544(b) and 548(a) (allowing the trustee to avoid a transfer of “an interest of the debtor in property”). The bankruptcy court for the Southern District of Texas reasoned along these same lines in West v. Freedom Medical, Inc. (In re Apex Long Term Acute Care — Katy, L.P.), when reviewing an action to recover a preference brought under 11 U.S.C. § 547. See 465 B.R. 452, 463 (Bankr.S.D.Tex.2011). In concluding that a bankruptcy judge’s authority to decide a § 547 action is consistent with Article III of the Constitution, the court held that property recovered through a § 547 action was always property of the estate, and concluded: [t]he situation is closely analogous to the recovery of a post-petition transfer under § 549. Section 549 restores to the estate the res as it existed on the petition date; § 547 restores the res as it existed 90 days before the petition date. There is no serious question that a § 549 cause of action is within the bankruptcy court’s in rem authority. Id. at 464. Accordingly, because the count to recover an unauthorized post-petition transfer stems from the Bankruptcy Code and does not seek to augment the estate, I may enter a final order or judgment as to Count III of the Trustee’s Complaint without running afoul of Article III of the Constitution. I may also effectuate the recovery permitted by § 549 by issuing orders pursuant to §§ 550 and 551. The property to be recovered is" }, { "docid": "769659", "title": "", "text": "to Jodi took place on September 30, 2004, incidental to the Debtor’s debts and obligations to Jodi under the antecedent Settlement Agreement. As between those two parties, the conveyance occurred upon delivery of the deed to Jodi. Hence, the transfer of the Aurora Property by the Debtor to Jodi was for an antecedent debt. In conclusion, the Court finds that the Trustee demonstrated all of the requisite elements under § 160/6(b). Pursuant to § 160/9(b), the Court enters judgment against Jodi in the sum of $20,000.00 and in favor of the Trustee. The transfer of the Aurora Property by the Debtor to Jodi is avoidable under § 544(b)(1). Under § 550(a)(1), the Trustee may recover from Jodi, for the benefit of the Debtor’s estate, $20,000.00, which represents the value of the Debtor’s one-half equity interest in the Aurora Property, less the property he received under the Settlement Agreement. E. Count V: 740 III. Comp. Stat. 160/9(b) Finally, the Trustee alleges in Count V of the complaint that he is entitled to recover the present value of the amount of the transfer from Jodi, the initial transferee, or from Dale and Sandra, the subsequent transferees. As the Court found supra, the transfer of the Aurora Property by the Debtor to Jodi was fraud ulent under the UFTA. Accordingly, the Court grants judgment in favor of the Trustee and against Dale and Sandra. Pursuant to § 160/9(b), the Trustee may recover from Dale and Sandra, for the benefit of the Debtor’s estate, the sum of $20,000.00, which represents the value of the Debtor’s one-half equity interest in the Aurora Property, less the property he received under the Settlement Agreement. IY. CONCLUSION For the foregoing reasons, the Court grants judgment in favor of the Trustee and against Jodi under Counts I, III, and IV of the complaint and finds that the Debtor’s transfer of the Aurora Property to Jodi was a constructively fraudulent conveyance under 11 U.S.C. § 548(a)(1)(B), 740 III. Comp. Stat. 160/9(b), 740 III. Comp. Stat. 160/5(a)(2) and 160/6(a) and (b). Thus, the Trustee may avoid the transfer of that Property" } ]

[ { "docid": "23644608", "title": "", "text": "stay, but cf. Chim Ming v. Marks, 505 F.2d 1170 (2d Cir. 1974), cert. denied, 421 U.S. 911, 95 S.Ct. 1564, 43 L.Ed.2d 776 (1975). And, alternately, it has been urged that his marriage to an American citizen on February 23,1968, which made him immediately eligible for admission as a permanent resident, should be considered the beginning of seven years of “lawful” domicile. These contentions are best left to initial determination by the Board of Immigration Appeals, see N.L.R.B. v. Columbia University, 541 F.2d 922, 930-32 (2d Cir. 1976). The petition is granted and the case remanded to the Board for proceedings not inconsistent with this opinion. . While Section 212(c) relief literally is available only to excludable aliens who seek admission to the United States, this Court has extended its beneficial effects to eligible aliens who have not actually departed from this country after their initial entry, Francis v. I.N.S, 532 F.2d 268 (2d Cir. 1976), and the I.N.S. since 1956 has applied it to aliens who have already reentered, even if illegally, Matter of G.A., 7 I&N Dec. 274 (1956). . The term “lawfully admitted for permanent residence” means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed. 8 U.S.C. § 1101(a)(20). . Tim Lok is married to a naturalized American citizen and is responsible for the support of three of his wife’s children, two of whom are also American citizens. . The dictum in Guan Chow Tok v. I.N.S., 538 F.2d 36, 38 (2d Cir. 1976) (“Since, in the case at bar, neither of the petitioners has been a permanent resident of the United States for a period of seven years, the statute [8 U.S.C. § 1182(c)] is clearly inapplicable”), cited to us by the Government, is not to the contrary since neither of the petitioners in that case had accumulated seven years of residence in this country on any view of the .case. . Since Tim Lok applied for discretionary waiver of exclusion in 1975" } ]

[ { "docid": "7858988", "title": "", "text": "held that permanent residence terminated when it affirmed the order of deportation against Lok in Tim Lok I on July 30, 1976 and that termination of permanent residence by reason of a final adjudication of deportability resulted in termination of lawful domicile. Petitioning a third time for review, Lok contends the Board disobeyed our mandate in Tim Lok I by impermissibly equating “lawful domicile” with “permanent residence.” We agree with the decision of the Board, though for reasons different in part from those advanced by the INS. Tim Lok established domicile in the United States only when he established an intent to remain. C. Gordon & H. Rosenfeld, 2 Immigration Law & Procedure § 7.4b at 7 — 46 (Rev. Ed. 1981). Lok established lawful domicile only when his intent to remain was legal under the immigration laws. El-kins v. Moreno, 435 U.S. 647, 665-68, 98 S.Ct. 1338, 1349-50, 55 L.Ed.2d 614 (1978). Implicitly endorsing the holding in Tim Lok I, the Supreme Court ruled that an alien did not have to be a permanent resident to harbor a lawful intent to remain. Thousands of aliens could become lawful domici-liaries without becoming permanent residents under Elkins and Tim Lok I. See Comment, Lawful Domicile Under Section 212(c) of the Immigration and Nationality Act, 47 U.Chi.L.Rev. 771, 778, 797-802 (1980). However, Tim Lok himself is not one of those aliens. As a seaman who had overstayed his 29 days, Lok was in the United States illegally. He could not establish lawful domicile. Elkins, 435 U.S. at 665, 98 S.Ct.at 1349. Nor did his marriage change his status. The INS halted deportation proceedings against Lok as a matter of grace, not as a matter of law. The toleration of Lok’s presence clearly did not legalize his intent to remain, which was still at odds with the statute, as Lok had to leave the country before he could enter as a legal alien. The requirement that Lok’s domicile be “lawful” is more than a formality; it is a commandment installed in the 1952 Immigration and Naturalization Act as a deliberate change from prior" }, { "docid": "6092317", "title": "", "text": "found it unnecessary to select between the interpretation espoused by the BIA in Matter of S and the reasoning of the Second Circuit in Lok I, noting: We need not now choose between the conflicting interpretations of the Board and the Second Circuit, for we are convinced that even under the more permi-sive [Lok /] standard, Anwo has failed to satisfy § 212(c)’s requirement of a “lawful unrelinquished domicile of seven consecutive years.” Although the word “domicile” is nowhere defined in the [INA], it is generally accepted that domicile is not established unless an individual intends to reside permanently or indefinitely in the new location.... In order to qualify for a student visa, however, the alien must “enter the United States temporarily and solely for the purpose of pursuing such a course of study” and must maintain “a residence in a foreign country which he has no intention of abandoning.” 8 U.S.C. § 1101(a)(15)(F)(i) (1976). Thus Anwo could not have established a “lawful domicile” in the United States during the period in which he held a student visa. On the one hand, if Anwo complied with the terms of his visa and did not intend to abandon his residence in Liberia, then he was not “domiciled” in this country; on the other hand, if Anwo did intend to make the United States his permanent home and domicile, then he violated the conditions of his student visa and was not here “lawfully.” Under either hypothesis, Anwo cannot satisfy the eligibility requirements of § 212(c). 607 F.2d at 437-38 (footnotes omitted). Following Anwo, the Second Circuit acknowledged that its suggestion in Lok I, that an alien who resides in this country for three years on a student visa and for four years as a permanent resident could accumulate seven years of lawful domicile, overlooked “the fact that students may not legally form the intent to remain in the United States under the terms of their visa.” Lok v. Immigration and Naturalization Service, 681 F.2d 107, 109 n. 3 (2d Cir.1982) (Lok III). Thus, the Second Circuit does not interpret Lok I “as" }, { "docid": "6247836", "title": "", "text": "and the BIA on appeal considered the hearing evidence but found it insufficient to merit discretionary relief in light of the petitioner’s criminal record. Thus, we can discern no abuse of discretion on the present record. See Arauz v. Rivkind, 845 F.2d at 276 (INS regulations require “only that the alien be afforded some meaningful opportunity to be heard, followed by the immigration judge’s careful consideration of the weight to be given such evidence”); Shahandeh-Pey, 831 F.2d at 1388-89 (fact that BIA failed to “mention any evidence” in regard to asylum claim amounts to an abuse of discretion) (emphasis added). Having determined that the BIA did not abuse its discretion in denying the present request for asylum, we decline to consider whether the petitioner has established a “well-founded fear of persecution.” See Ipvna, 868 F.2d at 515 (unnecessary to consider alternate ground for denial of asylum where BIA ruled that applicant neither established “well-founded fear of persecution” nor deserved asylum). See also INS v. Stevic, 467 U.S. 407, 423 n. 18, 104 S.Ct. 2489, 2497 n. 18, 81 L.Ed.2d 321 (1984); Cardoza-Fonseca, 480 U.S. at 443-44, 107 S.Ct. at 1219-20. The petition for review is denied. . Although section 212(c) expressly applies only to aliens who are returning “to a lawful unrelin-quished domicile of seven consecutive years,” it has been interpreted to apply also to aliens who have not left the country but nonetheless meet the seven year requirement and face deportation proceedings. See Lozado v. INS, 857 F.2d 10, 11 n. 1 (1st Cir.1988). . See INS v. Cardoza-Fonseca, 480 U.S. 421, 448, 107 S.Ct. 1207, 1221, 94 L.Ed.2d 434 (1987) (when Congress, implicitly or explicitly, leaves gaps, \"the courts must respect the interpretation of the agency to which Congress has delegated the responsibility for administering the statutory program”); Alvarez-Flores v. INS, 909 F.2d 1, 3-4 (1st Cir.1990)." }, { "docid": "7858994", "title": "", "text": "years as a student and four as a permanent resident would accumulate seven years of lawful domicile, overlooking the fact that students may not legally form the intent to remain in the United States under the terms of their visa. Elkins, 435 U.S. at 665, 98 S.Ct. at 1349; Anwo v. INS, 607 F.2d 435, 437-38 (D.C.Cir.1979) (per curiam). The hypothetical student in Tim Lok I, however, was no more than an example and not an issue before the court; we do not interpret the example as permitting lawful domicile without the requisite lawful intent to remain. . Notwithstanding the Supreme Court’s implicit endorsement of the result in Tim Lok I, the INS has declined to follow our earlier decision outside the second circuit, Matter of Anwo, 16 I. & N. Dec. I.D. 2604 (1977), aff’d on other grounds, Anwo v. INS, 607 F.2d 435 (D.C.Cir.1979) (per curiam), and two other circuits have upheld the Service by rejecting the decision. Chiravacharadhikul v. INS, 645 F.2d 248 (4th Cir.), cert. denied, 454 U.S. 893, 102 S.Ct. 389, 70 L.Ed.2d 207 (1981); Castillo-Felix v. INS, 601 F.2d 459 (9th Cir. 1979). The rationale of these decisions, however, is open to question. Compare Castillo-Felix, 601 F.2d at 464 (“the fact that a small group of nonimmigrants could conceivably qualify as ‘lawfully’ domiciled within this country without acquiring permanent residence status does not persuade us that ‘lawful’ should be defined without reference to the phrase ‘lawfully admitted for permanent residence’ ”) with Comment, Lawful Domicile Under Section 212(c) of the Immigration and Nationality Act, 47 U.Chi.L.Rev. 771, 777-78, 797-802 (1980) (more than 250,000 aliens could benefit from Tim Lok I; group is not “small”). . At oral argument, counsel for the INS contended that it would be absurd to hold that Tim Lok’s stay in prison counted towards seven years of “lawful domicile.” The INS did not advance the argument that “lawful domicile” terminates upon conviction of a crime which is a deportable offense, and we find it unnecessary to consider that contention in this case. It should be noted, however, that Senate Report" }, { "docid": "16816320", "title": "", "text": "if Madrid had no legal right to be in this country, he could not establish a lawful intent to remain. Moreover, it would be incongruous to hold that an alien lawfully residing in this country by virtue of a student visa cannot establish a lawful intent to remain, but an alien unlawfully in the United States could. Consequently, we extend today the reasoning of Brown and hold that an applicant for § 212(c) relief cannot meet the seven year lawful domicile requirement by counting time spent in this country illegally. The decision of the BIA is AFFIRMED. . 8 U.S.C. §§ 1101-1557, § 1182(c). . Id. § 1251(a)(2)(B)(i). . Fonseca-Leite v. I.N.S., 961 F.2d 60, 62 (5th Cir.1992). . INS v. Cardoza-Fonseca, 480 U.S. 421, 448, 107 S.Ct. 1207, 1221, 94 L.Ed.2d 434 (1987). . 532 F.2d 268, 272-73 (2d Cir.1976). . Brown v. INS, 856 F.2d 728, 730 n. 3 (5th Cir.1988). . Matter of S —, 5 I & N Dec. 116 (BIA 1953). . 645 F.2d 248 (4th Cir.), cert. denied, 454 U.S. 893, 102 S.Ct. 389, 70 L.Ed.2d 207 (1981). . 601 F.2d 459 (9th Cir.1979). . 548 F.2d 37 (2d Cir.1977). . Lok v. INS, 681 F.2d 107, 109 n. 3 (2d Cir.1982) (Lok III). . 856 F.2d at 728. . 607 F.2d 435 (D.C.Cir.1979). . Although the Supreme Court has not spoken directly to this issue, its decision in Elkins v. Moreno, 435 U.S. 647, 98 S.Ct. 1338, 55 L.Ed.2d 614 (1978), does address the question indirectly. In Elkins, the Court considered whether students holding visas as children of \"officers, or employees of ... international organizations” could establish domicile for \"in-state” status. The Court concluded that, although the issue whether the student could become domiciles of the state was one of state law, the students had the capacity under federal law to change domicile, as the visas were not expressly dependent on their retaining a foreign domicile. This is consistent with Brown, which held that foreign students could not form a lawful intent to remain, as their visas required retention of a foreign domicile." }, { "docid": "16816319", "title": "", "text": "(Lok I), although it subsequently recognized that the intent to remain must be lawful. In Brown v. INS we, like the D.C. Circuit in Anwo v. INS, found it unnecessary to choose either side of this circuit split. The petitioner in Brown argued that his period of residence in the United States on a student visa should count towards the seven year domicile requirement. We rejected that argument, reasoning that an alien student, by the terms of his student visa, could not lawfully possess an intent to remain in the United States; but if the student did in fact form such an intent, then he was in violation of his visa and was not here lawfully. Building on the reasoning in Brown, we find that Madrid fails to meet even the more permissive Lok standard. The bare language of the statute requires a “lawful unre-linquished domicile of seven consecutive years.” In simple terms, Madrid cannot meet the statutory “lawful domicile” requirement given his admission that he entered the country illegally, with no immigrant visa. Certainly, if Madrid had no legal right to be in this country, he could not establish a lawful intent to remain. Moreover, it would be incongruous to hold that an alien lawfully residing in this country by virtue of a student visa cannot establish a lawful intent to remain, but an alien unlawfully in the United States could. Consequently, we extend today the reasoning of Brown and hold that an applicant for § 212(c) relief cannot meet the seven year lawful domicile requirement by counting time spent in this country illegally. The decision of the BIA is AFFIRMED. . 8 U.S.C. §§ 1101-1557, § 1182(c). . Id. § 1251(a)(2)(B)(i). . Fonseca-Leite v. I.N.S., 961 F.2d 60, 62 (5th Cir.1992). . INS v. Cardoza-Fonseca, 480 U.S. 421, 448, 107 S.Ct. 1207, 1221, 94 L.Ed.2d 434 (1987). . 532 F.2d 268, 272-73 (2d Cir.1976). . Brown v. INS, 856 F.2d 728, 730 n. 3 (5th Cir.1988). . Matter of S —, 5 I & N Dec. 116 (BIA 1953). . 645 F.2d 248 (4th Cir.), cert. denied, 454" }, { "docid": "21594326", "title": "", "text": "as indicating this relationship existed. If so, he is entitled to claim domicile through her. It seems clear that the BIA’s reading of § 212(c) to require, in effect, seven years of domicile and residency is inconsistent with the statutory language, at least insofar as domicile has traditionally been understood in the context of minors. Properly understood, the agency’s “long-standing” interpretation of domicile in § 212(c) to require physical presence can apply only to adults, for whom actual presence and an intent to indefinitely remain or prior presence and an intent to return are traditional elements of domicile. See 25 Am.Jur.2d § 4; cf. Lok, 548 F.2d at 40 (refusing to add requirements beyond those explicitly found in § 212(c) before waiver may be sought). That the INS itself recognizes that domicile is “an entirely different attribute” than residency is evidenced by its opinion in The Matter of A, where the BIA held that the domicile of a minor child follows that of the person from whom the domicile of origin was taken. See 2 I. & N. Dec. 87, 88-89 (BIA 1944); see also 8 U.S.C. § 1101(b)(1)(c) (defining “child” as a “child legitimated under the law of the child’s residence or domicile ”) (emphasis added). Consequently, insofar as the agency’s interpretation of § 212(c) results in adding to the domicile requirement a residency requirement, which is not included in the language of the Act, we are unable to uphold it. Our conclusion that the INS’ interpretation is unreasonable is supported by the principle that in light of the harshness of deportation, ambiguous deportation provisions should be construed in favor of the alien. See Costello v. INS, 376 U.S. 120, 128, 84 S.Ct. 580, 585, 11 L.Ed.2d 559 (1964); INS v. Cardoza-Fonseca, 480 U.S. 421, 449, 107 S.Ct. 1207, 1222, 94 L.Ed.2d 434 (1987); Lok, 548 F.2d at 39. The INS asserts finally that the interpretation urged by petitioner would lead to absurd results and cannot therefore accurately reflect Congress’ view. In particular, it argues that a minor admitted into the United States might derive lawful domicile from a" }, { "docid": "6092316", "title": "", "text": "only after his or her lawful admission for permanent residence. See Matter of S, 5 I & N Dec. 116 (1953). Two circuits agree. See Chiravacharadhikul v. Immigration and Naturalization Service, 645 F.2d 248 (4th Cir.), cert. denied, 454 U.S. 893, 102 S.Ct. 389, 70 L.Ed.2d 207 (1981); Castillo-Felix v. Immigration and Naturalization Service, 601 F.2d 459 (9th Cir.1979). The Second Circuit, however, disagreed in Lok v. Immigration and Naturalization Service, 548 F.2d 37 (2d Cir.1977) (Lok I), and held that to meet the requirements of § 212(c), an alien need only show that he or she (1) has been domiciled lawfully in the United States for seven consecutive years, and (2) was a permanent resident at the time of the application for discretionary relief, not for all seven of the years of domicile. In Anwo v. Immigration and Naturalization Service, 607 F.2d 435 (D.C.Cir.1979), an alien asked the District of Columbia Circuit to follow Lok I and hold that he was domiciled lawfully in the United States while on a student visa. The court found it unnecessary to select between the interpretation espoused by the BIA in Matter of S and the reasoning of the Second Circuit in Lok I, noting: We need not now choose between the conflicting interpretations of the Board and the Second Circuit, for we are convinced that even under the more permi-sive [Lok /] standard, Anwo has failed to satisfy § 212(c)’s requirement of a “lawful unrelinquished domicile of seven consecutive years.” Although the word “domicile” is nowhere defined in the [INA], it is generally accepted that domicile is not established unless an individual intends to reside permanently or indefinitely in the new location.... In order to qualify for a student visa, however, the alien must “enter the United States temporarily and solely for the purpose of pursuing such a course of study” and must maintain “a residence in a foreign country which he has no intention of abandoning.” 8 U.S.C. § 1101(a)(15)(F)(i) (1976). Thus Anwo could not have established a “lawful domicile” in the United States during the period in which he held" }, { "docid": "7791754", "title": "", "text": "in this country while holding a student visa is buttressed by the Supreme Court’s recent decision in Elkins v. Moreno, 435 U.S. 647, 98 S.Ct. 1338, 55 L.Ed.2d 614 (1978). In that case, the Court considered whether nonimmigrant aliens admitted under 8 U.S.C. § 1101(a)(15)(G)(iv) (employees of international organizations or their dependents) could acquire Maryland domicile for “in-state” tuition purposes. Although Elkins did not involve an interpretation of the language of § 212(c), the Court indicated that under the immigration laws, a nonimmigrant student could not lawfully maintain a domicile in this country: . Congress expressly conditioned admission for some purposes on an intent not to abandon a foreign residence or, by implication, on an intent not to seek domicile in the United States. Thus, ... a nonimmigrant student is defined as “an alien having a residence in a foreign country which he has no intention of abandoning . . and who seeks to enter the United States temporarily and solely for the purpose of pursuing a course of study. . . . ” § 101(a)(15)(F). . . . By including restrictions on intent in the definition of some nonimmigrant classes, Congress must have meant aliens to be barred from these classes if their real purpose in coming to the United States was to immigrate permanently. Moreover, since a nonimmigrant alien who does not maintain the conditions attached to his status can be deported, see § 241(a)(9) of the 1952 Act, 66 Stat. 206, as amended, 8 U.S.C. § 1251(a)(9) (1976 ed.), it is also clear that Congress intended that, in the absence of an adjustment of status . ., nonimmigrants in restricted classes who sought to establish domicile would be deported. 98 S.Ct. at 1349. . Anwo also claims that deportation under § 241(a)(ll) denies him equal protection of the laws as guaranteed by the Fifth Amendment. Bolling v. Sharpe. 347 U.S. 497, 499-500, 74 S.Ct. 693, 98 L.Ed. 884 (1954). He points out that a citizen who is convicted of a marijuana offense suffers only the criminal sanction established by local statute, while aliens also face automatic deportation." }, { "docid": "6092315", "title": "", "text": "triggered the initiation of deportation proceedings by the Immigration and Naturalization Service (INS), pursuant to § 241(a)(ll) of the Immigration and Naturalization Act (INA), 8 U.S.C. § 1251(a)(ll), which provides for the deportation of any alien who “has been convicted of a violation of ... any law or regulation of a State ... relating to a controlled substance.” The immigration judge found Brown de-portable and ineligible for the discretionary relief provided by § 212(c) of the INA, 8 U.S.C. § 1182(c). The BIA affirmed, concluding that Brown was ineligible for § 212(c) discretionary relief because he had not accumulated seven consecutive years of lawful, unrelinquished domicile in the United States after the 1982 adjustment of his status to permanent resident. Brown petitions for review of that ruling. Analysis Brown contends that he is eligible for discretionary relief from deportation under the aegis of § 212(c), applicable to aliens “lawfully admitted for permanent residence [with] lawful unrelinquished domicile of seven consecutive years.” The BIA consistently has held that an alien’s lawful unrelinquished domicile begins to accrue only after his or her lawful admission for permanent residence. See Matter of S, 5 I & N Dec. 116 (1953). Two circuits agree. See Chiravacharadhikul v. Immigration and Naturalization Service, 645 F.2d 248 (4th Cir.), cert. denied, 454 U.S. 893, 102 S.Ct. 389, 70 L.Ed.2d 207 (1981); Castillo-Felix v. Immigration and Naturalization Service, 601 F.2d 459 (9th Cir.1979). The Second Circuit, however, disagreed in Lok v. Immigration and Naturalization Service, 548 F.2d 37 (2d Cir.1977) (Lok I), and held that to meet the requirements of § 212(c), an alien need only show that he or she (1) has been domiciled lawfully in the United States for seven consecutive years, and (2) was a permanent resident at the time of the application for discretionary relief, not for all seven of the years of domicile. In Anwo v. Immigration and Naturalization Service, 607 F.2d 435 (D.C.Cir.1979), an alien asked the District of Columbia Circuit to follow Lok I and hold that he was domiciled lawfully in the United States while on a student visa. The court" }, { "docid": "7791753", "title": "", "text": "for discretionary relief: the alien must have been “lawfully admitted for permanent residence” and the domicile of seven consecutive years to which the alien is returning must be “lawful.” . See, e. g., Gilbert v. David, 235 U.S. 561, 569, 35 S.Ct. 164, 59 L.Ed. 360 (1915); cf. District of Columbia v. Murphy, 314 U.S. 441, 62 S.Ct. 303, 86 L.Ed. 329 (1941); Stine v. Moore, 213 F.2d 446, 448 (5th Cir. 1954) (“Residence in fact, and the intention of making the place of residence one’s home, are essential elements of domicile.”) It is this element of intent to establish a permanent abode that distinguishes “domicile” from “residence,” which is defined in the Act as the “principal, actual dwelling place in fact, without regard to intent.” 8 U.S.C. § 1101(a)(33) (1976). Cf. Bache Halsey Stuart, Inc. v. Namm, 446 F.Supp. 692, 694 (S.D.N.Y.1978) (“It is well established that domicile entails not only residence in fact, but also intent to make that place of residence one's home.”) . Our conclusion that petitioner cannot be lawfully domiciled in this country while holding a student visa is buttressed by the Supreme Court’s recent decision in Elkins v. Moreno, 435 U.S. 647, 98 S.Ct. 1338, 55 L.Ed.2d 614 (1978). In that case, the Court considered whether nonimmigrant aliens admitted under 8 U.S.C. § 1101(a)(15)(G)(iv) (employees of international organizations or their dependents) could acquire Maryland domicile for “in-state” tuition purposes. Although Elkins did not involve an interpretation of the language of § 212(c), the Court indicated that under the immigration laws, a nonimmigrant student could not lawfully maintain a domicile in this country: . Congress expressly conditioned admission for some purposes on an intent not to abandon a foreign residence or, by implication, on an intent not to seek domicile in the United States. Thus, ... a nonimmigrant student is defined as “an alien having a residence in a foreign country which he has no intention of abandoning . . and who seeks to enter the United States temporarily and solely for the purpose of pursuing a course of study. . . . ” §" }, { "docid": "6092318", "title": "", "text": "a student visa. On the one hand, if Anwo complied with the terms of his visa and did not intend to abandon his residence in Liberia, then he was not “domiciled” in this country; on the other hand, if Anwo did intend to make the United States his permanent home and domicile, then he violated the conditions of his student visa and was not here “lawfully.” Under either hypothesis, Anwo cannot satisfy the eligibility requirements of § 212(c). 607 F.2d at 437-38 (footnotes omitted). Following Anwo, the Second Circuit acknowledged that its suggestion in Lok I, that an alien who resides in this country for three years on a student visa and for four years as a permanent resident could accumulate seven years of lawful domicile, overlooked “the fact that students may not legally form the intent to remain in the United States under the terms of their visa.” Lok v. Immigration and Naturalization Service, 681 F.2d 107, 109 n. 3 (2d Cir.1982) (Lok III). Thus, the Second Circuit does not interpret Lok I “as permitting lawful domicile without the requisite lawful intent to remain.” Id. We agree with our colleagues in Anwo and Lok III and hold that an alien cannot lawfully possess an intent to be domiciled in this country while he or she is here on a student visa. See Elkins v. Moreno, 435 U.S. 647, 98 S.Ct. 1338, 55 L.Ed.2d 614 (1978). Accordingly, Brown is ineligible for discretionary relief because he may not use his student visa time to satisfy the seven-year domicile requirement of § 212(c). Brown advances several other arguments. Because we find none meritorious, they merely are synopsized. The deportation is based on the Wisconsin convictions, the validity of which Brown challenges. He may not collaterally attack the legitimacy of those convictions in this proceeding. Zinnanti v. Immigration and Naturalization Service, 651 F.2d 420 (5th Cir.1981). Next, because Brown is deportable under § 241(a)(ll), the express language of the INA renders him ineligible for relief pursuant to § 241(b), 8 U.S.C. § 1251(b) (recommendation by sentencing court), § 244(a)(1), 8 U.S.C. § 1254(a)(1)" }, { "docid": "10814353", "title": "", "text": "that the requisites for eligibility are that an alien shall have been admitted for permanent residence and that he have a lawful unrelinquished domicile of seven consecutive years. This petitioner clearly meets both branches of the test. If his presence in this country had been unlawful at any time, we might be confronted with a question whether, during that time, he could have a lawful domicile. There might be some question of whether he could acquire domiciliary status at all if he was here on some temporary permit, as that issued to students. In 1970, however, he had been classified as a non-immigrant employee of a foreign government. As such, he could lawfully remain indefinitely. See Elkins v. Moreno, 435 U.S. 647, 98 S.Ct. 1338, 55 L.Ed.2d 614. There was no impediment to his establishment of an entirely lawful domicile, which he did. It had been maintained for more than seven years, though his change in status from that of an employee of a foreign embassy to an immigrant for permanent residence occurred less than seven years ago. There is no ambiguity in the application of the statute to him. Hence, in this case we are not met with the possibly troublesome problems which confronted the Second and Ninth Circuits in Lok v. INS, 548 F.2d 37 (2d Cir. 1977), and Castillo-Felix v. INS, 601 F.2d 459 (9th Cir. 1979). Even if we were met with those problems, I would come out as the Second Circuit did. I think Judge Kaufman, writing for a panel composed of himself, Judge Friendly and Judge Oakes, persuasively demonstrated that there is no ambiguity in the statute occasioning extreme deference to administrative interpretation. Moreover, there are no practical problems or policy considerations supporting the administrative interpretation, as the dissenting opinion of Judge Takasugi in Castillo-Felix demonstrates. The Congress in 1950 considered language which would require the result reached by the majority, but the Congress did not adopt that language. The language it did adopt in 1952 seems to me inconsistent with the subsequent administrative in terpretation. I am left with the feeling that the" }, { "docid": "23638870", "title": "", "text": "court acknowledged that interpretations of an Act by the agency responsible for administering it are usually accorded great deference, citing Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965). Nevertheless, it reversed the agency, impelled by a heavy responsibility to set aside administrative decisions that are inconsistent with a statutory mandate or which frustrate the congressional policy underlying legislation, see N. L. R. B. v. Brown, 380 U.S. 278, 290-92, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965). 548 F.2d at 40. We cannot agree that the INS interpretation of § 1182(c) is “inconsistent with a statutory mandate or . frustrate^] the congressional policy” behind this legislation. The statutory mandate in § 1182(c) is ambiguous. The language of the section could support either the INS interpretation or that adopted in Lok. The fact that the phrase “lawfully admitted for permanent residence” is carefully defined elsewhere in the act does not negate the possibility that Congress intended to establish permanent resident status as the prerequisite for “lawful” domicile. Similarly, the fact that a small group of nonimmigrants could conceivably qualify as “lawfully” domiciled within this country without acquiring permanent resident status does not persuade us that “lawful” should be defined without reference to the phrase “lawfully admitted for permanent residence.” We emphasize first that most non-immigrants must have a residence in a foreign country which they do not intend to abandon, or must be here for a temporary purpose, or both. To establish domicile, aliens must not only be physically present here, but must intend to remain. If aliens are here for a temporary purpose, they cannot establish domicile. Conversely, if they intend to stay, they violate the terms of their admission and are no longer here lawfully. See Anwo v. INS, No. 77-1879, slip op. at 6-7 and n.8 (D.C.Cir. June 19, 1979), quoting Elkins v. Moreno, 435 U.S. 647, 98 S.Ct. 1338, 1349, 55 L.Ed.2d 614 (1978). The INS concedes that a small group of nonimmigrants including diplomats, foreign government representatives and their retinues, treaty traders, and media representatives, are not required to maintain a" }, { "docid": "18654556", "title": "", "text": "of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General .... 8 U.S.C. § 1182(c). Under case law, discretionary relief under § 212(c) has been extended to resident aliens. E.g., Melian v. INS, 987 F.2d 1521, 1523 (11th Cir.1993); Francis v. INS, 532 F.2d 268, 272-73 (2d Cir.1976). The INS does not question that extension in this case. The Attorney General is responsible for the administration of laws concerning immigration and naturalization, including the adoption of necessary regulations, and has delegated those responsibilities to the Commissioner of the INS. 8 U.S.C. § 1103(a), (b); 8 C.F.R. § 2.1. Immigration Judges conduct hearings on show cause orders in deportation proceedings, see 8 C.F.R. §§ 3.10, 242.8(a), and the Board of Immigration Appeals has appellate jurisdiction over decisions by Immigration Judges, id. § 3.1(b)(2). A deportation order issued by an Immigration Judge becomes final upon decision of the appeal by the Board, upon waiver of appeal, or upon expiration of the time allotted for an appeal when no appeal is taken. Id. § 243.1. The Board’s decision is administratively final, but review by the United States Circuit Court of Appeals may be sought by petition. See 8 U.S.C. § 1105a. In In re Lok, 18 I. & N. Dec. 101, 107 (BIA 1981), aff'd, Lok v. INS, 681 F.2d 107 (2d Cir.1982), the Board adopted as its official interpretation of § 212(c), a construction under which an alien’s period of lawful unrelin-quished domicile terminates only upon entry of an administratively final order of deportation. Under the Board’s Lok rule, Jaramillo would be eligible for consideration for § 212(c) discretionary relief, because his order of deportation did not become final until 1992, eighteen years after he had become a permanent resident. Indeed, at the time Jaramillo applied for § 212(c) relief in 1984, the order of deportation had not become final and he had already been a permanent resident for more than the requisite seven years. Jaramillo would not be eligible for § 212(c) relief if issuance of" }, { "docid": "7858993", "title": "", "text": "Petition denied. The mandate shall issue forthwith. . Lok is a citizen of China; which China is not clear from the record. The Government of Taiwan refused to accept Lok when his order of deportation was entered in 1975; the order named Hong Kong as an alternate site. . On its face, § 212(c) grants discretionary relief only to aliens outside the United States who seek to return. We struck this limitation down as without rational basis and therefore viola-tive of the fifth amendment to the Constitution. Francis v. INS, 532 F.2d 268 (2d Cir. 1976). The INS has since applied § 212(c) to both resident aliens and aliens seeking to return to their residence in the United States. C. Gordon & H. Rosenfeld, 2 Immigration Law & Procedure § 7.4b at 7-44 (Rev. ed. 1981). Therefore Lok is not barred from § 212(c) relief by virtue of his presence in the United States. . Tim Lok I is not to the contrary. Chief Judge Kaufman did propose that a hypothetical alien who spent three years as a student and four as a permanent resident would accumulate seven years of lawful domicile, overlooking the fact that students may not legally form the intent to remain in the United States under the terms of their visa. Elkins, 435 U.S. at 665, 98 S.Ct. at 1349; Anwo v. INS, 607 F.2d 435, 437-38 (D.C.Cir.1979) (per curiam). The hypothetical student in Tim Lok I, however, was no more than an example and not an issue before the court; we do not interpret the example as permitting lawful domicile without the requisite lawful intent to remain. . Notwithstanding the Supreme Court’s implicit endorsement of the result in Tim Lok I, the INS has declined to follow our earlier decision outside the second circuit, Matter of Anwo, 16 I. & N. Dec. I.D. 2604 (1977), aff’d on other grounds, Anwo v. INS, 607 F.2d 435 (D.C.Cir.1979) (per curiam), and two other circuits have upheld the Service by rejecting the decision. Chiravacharadhikul v. INS, 645 F.2d 248 (4th Cir.), cert. denied, 454 U.S. 893, 102 S.Ct." }, { "docid": "19823616", "title": "", "text": "127 L.Ed.2d 93 (1994); Variamparambil v. I.N.S., 831 F.2d 1362, 1367 (7th Cir.1987); Rivera v. I.N.S., 810 F.2d 540, 541-42 (5th Cir.1987). See also Lok v. I.N.S., 681 F.2d 107, 109-10 (2d Cir.1982) (suggesting lawful domicile may terminate earlier than final administrative order if alien concedes deportability). Contra Wall v. I.N.S., 722 F.2d 1442, 1444-45 (9th Cir.1984) (where alien contests deportation on the merits through petition for judicial review, lawful domicile continues until conclusion of that review). Compare Foroughi v. I.N.S., 60 F.3d 570, 575 (9th Cir.1995) (lawful permanent resident status of alien conceding de-portability continues only until final administrative order of deportation; domicile ends at that point). The order will become final when the BIA renders a decision on appeal or certification, or when an alien waives an administrative appeal or allows the time for appeal to expire. Lok, 18 I & N Dec. at 105. We need not reiterate all the reasons proffered for the BIA’s construction of the statute. Nor do we enter the quagmire the circuit courts have created over their varying interpretations of 8 U.S.C. § 1182(c) under differing sets of facts. Suffice it to say that under the facts of this case, the BIA’s construction of § 1182(c) is reasonable, and thus permissible. See Chevron, 467 U.S. at 843, 104 S.Ct. at 2781-82. In this case, the seven year period of lawful unrelinquished domicile began when petitioner was lawfully admitted to permanent residence on July 23, 1987. That period ended prior to the expiration of seven years when, on March 4, 1994, the BIA affirmed the ILJ’s order of deportation. Thus, the BIA correctly held that petitioner was ineligible for discretionary relief under 8 U.S.C. § 1182(c). The petition to review the order of the BIA denying petitioner’s motion to reopen Ids deportation proceeding is DENIED. . Petitioner acknowledges that under § 1182(c), his domicile in the United States began when he was admitted for permanent residence. Accordingly, the seven year period commenced when petitioner was admitted for permanent residence on July 23, 1987. We do not decide the question of whether the phrase" }, { "docid": "21594327", "title": "", "text": "I. & N. Dec. 87, 88-89 (BIA 1944); see also 8 U.S.C. § 1101(b)(1)(c) (defining “child” as a “child legitimated under the law of the child’s residence or domicile ”) (emphasis added). Consequently, insofar as the agency’s interpretation of § 212(c) results in adding to the domicile requirement a residency requirement, which is not included in the language of the Act, we are unable to uphold it. Our conclusion that the INS’ interpretation is unreasonable is supported by the principle that in light of the harshness of deportation, ambiguous deportation provisions should be construed in favor of the alien. See Costello v. INS, 376 U.S. 120, 128, 84 S.Ct. 580, 585, 11 L.Ed.2d 559 (1964); INS v. Cardoza-Fonseca, 480 U.S. 421, 449, 107 S.Ct. 1207, 1222, 94 L.Ed.2d 434 (1987); Lok, 548 F.2d at 39. The INS asserts finally that the interpretation urged by petitioner would lead to absurd results and cannot therefore accurately reflect Congress’ view. In particular, it argues that a minor admitted into the United States might derive lawful domicile from a parent already present for seven years, thereby making that person eligible for § 212(c) relief on the very day of arrival. This, in turn, would frustrate the purpose of § 212(c), “which is to waive grounds of excludability or deportability for aliens who have developed such strong ties to this country that exclusion or deportation would be unjustly harsh.” The agency misstates the “purpose” of § 212(c). It is not “to waive grounds of deportability,” but rather to provide an opportunity to seek a waiver at the discretion of the Attorney General. See Francis, 532 F.2d at 272. Section 212(c)’s requirement that an applicant must have been “lawfully admitted for permanent residence” obviates the concern that a minor without any significant connection with the United States might nevertheless be eligible for discretionary relief. If one qualifies for § 212(c) eligibility despite not having developed family ties in the United States, then the Attorney General can exercise his discretion and not waive deportability. Instead, it is the agency’s interpretation that frustrates the legislative scheme because it" }, { "docid": "7791750", "title": "", "text": "the status of a non-immigrant student. In order to qualify for a student visa, however, the alien must “enter the United States temporarily and solely for the purpose of pursuing such a course of study” and must maintain “a residence in a foreign country which he has no intention of abandoning.” 8 U.S.C. § 1101-(a)(15)(F)(i)(1976). Thus Anwo could not have established a “lawful domicile” in the United States during the period in which he held a student visa. On the one hand, if Anwo complied with the terms of his visa and did not intend to abandon his residence in Liberia, then he was not “domiciled” in this country; on the other hand, if Anwo did intend to make the United States his permanent home and domicile, then he violated the conditions of his student visa and was not here “lawfully.” Under either hypothesis, Anwo cannot satisfy the eligibility requirements of § 212(c). Accordingly, the order of the Board of Immigration Appeals is Affirmed. . 8 U.S.C. § 1182(c) (1976): Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General without regard to the provisions of paragraphs (1) to (25), (30), and (31) of subsection (a) of this section. . 8 U.S.C. § 1251(a)(11)(1976). . 8 U.S.C. § 1182(c) (1976). By its terms, this statute only pertains to resident aliens who travelled abroad temporarily and wish to appeal INS denial of permission to reenter the country. See note 1 supra. In Francis v. Immigration & Naturalization Service, 532 F.2d 268 (2d Cir. 1976), the Second Circuit ruled that Congress could not constitutionally confine this possible relief to aliens who leave the country: “[A]n alien whose ties with this country. are so strong that he has never departed should receive at least as much consideration as an individual who may leave . .” Id. at 273. Following the decision in Francis, the INS has held that relief under § 212(c)" }, { "docid": "6092319", "title": "", "text": "permitting lawful domicile without the requisite lawful intent to remain.” Id. We agree with our colleagues in Anwo and Lok III and hold that an alien cannot lawfully possess an intent to be domiciled in this country while he or she is here on a student visa. See Elkins v. Moreno, 435 U.S. 647, 98 S.Ct. 1338, 55 L.Ed.2d 614 (1978). Accordingly, Brown is ineligible for discretionary relief because he may not use his student visa time to satisfy the seven-year domicile requirement of § 212(c). Brown advances several other arguments. Because we find none meritorious, they merely are synopsized. The deportation is based on the Wisconsin convictions, the validity of which Brown challenges. He may not collaterally attack the legitimacy of those convictions in this proceeding. Zinnanti v. Immigration and Naturalization Service, 651 F.2d 420 (5th Cir.1981). Next, because Brown is deportable under § 241(a)(ll), the express language of the INA renders him ineligible for relief pursuant to § 241(b), 8 U.S.C. § 1251(b) (recommendation by sentencing court), § 244(a)(1), 8 U.S.C. § 1254(a)(1) (suspension of deportation), and § 244(e), 8 U.S.C. § 1254(e) (voluntary departure). Further, Brown is ineligible for suspension of deportation pursuant to § 244(a)(2), 8 U.S.C. § 1254(a)(2), because he has not been in the United States for ten years since the convictions. Brown’s double-jeopardy contention also is groundless; it is well-settled that deportation proceedings are not criminal prosecutions. See Immigration and Naturalization Service v. Lopez-Mendoza, 468 U.S. 1032, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984); Patel v. Immigration and Naturalization Service, 803 F.2d 804 (5th Cir.1986). Finally, this court does not have jurisdiction to address Brown’s claim regarding his detention and bail. Finding no validity in any point raised, the petition for review is DENIED. . THC is listed on Schedule I of the Controlled Substances Act, 21 U.S.C. §§ 802(6), 812. . 8 U.S.C. § 1182(c) provides in pertinent part: Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unre-linquished domicile of seven consecutive years, may be" } ]

[ { "docid": "4779002", "title": "", "text": "in the earlier litigation.” D-1 Enterprises, Inc. v. Commercial State Bank, 864 F.2d 36, 38 (5th Cir.1989) (citing Southmark Properties v. Charles House Corp., 742 F.2d 862, 871 (5th Cir.1984). Fundamental to Movant’s Res Judicata argument is the erroneous assumption that Reorganized Fonda should have raised as a counterclaim the preference at the time it objected to Movant’s proof of claim. As stated above, the bankruptcy procedural rules of joinder or compulsory counterclaims do not compel the assertion of the Preferenée claim with the objection to claim. The objection to claim is a contested matter to which the compulsory counterclaim Rules do not apply; compared in adversary proceedings to which the compulsory counterclaim rules do apply. See generally, D-1 Enterprises, Inc., 864 F.2d at 39. The Fifth Circuit in D-1 Enterprises rejected the notion that either Res Judicata or the Compulsory Counterclaim Rules could work to bar the debtor’s subsequent litigation of lender liability claims against its major secured creditor. The D-1 Enterprises Court wrote: It would be odd indeed if a claim that was not required as a compulsory counterclaim by the Bankruptcy Rules and in fact could not be litigated as a defense to the motion for relief from the stay was nonetheless barred by res judicata within the same case. Many of the statutes and rules allow more leeway for the debtor-in-possession or trustee in a bankruptcy proceeding to be excused from failure to develop the case as rapidly as possible in order to promote the basic policy of marshalling all the assets for the benefit of creditors. For example, even the compulsory counterclaim rules found in Bankruptcy Rule 7013 include a liberal “escape clause”: A trustee or debtor-in-possession who fails to plead a counterclaim through oversight, inadvertence, or excusable neglect, or when justice so requires, may by leave of court amend the pleading, or commence a new adversary proceeding in a separate action. Bankruptcy Rule 7013. If the “compulsory” counterclaim rule is this generous to the trustee or debtor, it would be odd indeed for us to hold that the debtor must assert all related claims" } ]

[ { "docid": "6697390", "title": "", "text": "whether, in a case without a trustee, section 546(a)(1) bars preference actions filed more than two years into the ease pursuant to, and within two years of confirmation of, a plan of reorganization that requires such actions be retained and pursued by a representative of the estate, as authorized by section 1123(b)(3)(B), so that the proceeds could be distributed to unsecured creditors. The Ninth Circuit first held, agreeing with the Tenth Circuit, that section 546(a)(1) bars the debtor in possession, who performs the duties of the trustee, from bringing an action under the trustee’s avoiding powers more than two years after the filing of a voluntary chapter 11 case. Softwaire Centre, 994 F.2d at 683; Zilkha Energy Co. v. Leighton, 920 F.2d 1520, 1523-24 (10th Cir.1990). In denying rehearing, the Ninth Circuit panel clarified that it was taking no position on whether the reorganization plan supplanted the deadline on the debtor in possession. Softwaire Centre, 994 F.2d at 684. Thereafter, the Ninth Circuit answered the related question of whether a successor trustee has another two years under section 546(a)(1). It held that in a case in which a chapter 11 trustee had been appointed eight months after the case was filed, a successor chapter 7 trustee cannot bring an avoiding action more than two years after the original chapter 11 trustee was appointed. Ford v. Union Bank (In re San Joaquin Roast Beef), 7 F.3d 1413, 1417-18 (9th Cir.1993) (“San Joaquin Roast Beef”)', cf., Independent Fire Ins. Co. v. Pender (In re Phillip), 948 F.2d 985 (5th Cir.1991). Essential to that conclusion was a determination that the original trustee had two years from the date of appointment in which to pursue the trustee’s avoiding powers. Thus, the running of the trustee’s two years permitted by section 546(a)(1) is triggered by the first appointment of a trustee under either 11 U.S.C. § 702 or 11 U.S.C. § 1104 and is not extended or resurrected by appointment of a successor trustee or by conversion to another chapter. A The upshot of Softwaire Centre and San Joaquin Roast Beef is that in the" }, { "docid": "21110610", "title": "", "text": "not precluded by res judicata in any event. D & K’s problem is that the breach of contract claim is not such an action. D & K also argues that in requiring that claims be expressly reserved, the term “express” must be contrasted with “implied,” and only requires that the reservation be in writing. Because the reservation in paragraph 7.1 preserves “all cause of action existing” in writing, D & K claims the reservation is “express.” D & K is shooting at the wrong target. The problem in Micro-Time, as in this ease, was not that the reservation was not in writing, but that the claim sought to be reserved was not identified in the reservation. The identification must not only be express, but also the claim must be specific. A blanket reservation that seeks to reserve all causes of action reserves nothing. To hold otherwise would eviscerate the finality of a bankruptcy plan containing such a reservation, a result at odds with the very purpose of a confirmed bankruptcy plan.. The Ninth Circuit Bankruptcy Appellate Panel recently explained the distinction in In re Kelley, 199 B.R. 698 (9th Cir. BAP 1996). In Kelley the bankruptcy confirmation plan contained a reservation that was “express” in that it was written (as would be any reservation in a confirmation plan), but “general” in that it reserved rights to bring claims without identifying the claims. The court explained: “If a confirmed plan expressly reserves the right to litigate a specific cause of action after confirmation, then res judicata does not apply. On the other hand, if the debtor fails to mention the cause of action ... then he will be precluded from asserting it postconfirmation.” Id. at 704 (emphasis added; internal citations omitted). The court noted that “[ejven a blanket reservation by the debtor reserving ‘all causes of action which the debtor may choose to institute’ has been held insufficient to prevent the application of res judicata to a specific action.” Id. (citing In re Hooker Invs., Inc., 162 B.R. 426, 433 (Bankr.S.D.N.Y.1993)). The court determined that the confirmation plan language in Kelley," }, { "docid": "22202", "title": "", "text": "in the chapter 11 plan is interpreted against the drafter;” applying rule in Section 1123(b)(3)(B) context). See also In re Collins, 184 B.R. 151, 154-55 (Bankr.N.D.Fla.1995) (“The ambiguity in the Debtor’s Plan created by the omission of express language concerning post-confirmation interest and the typographical error with respect to this claim must be construed against the Debtor.”). For the reasons stated above, the court concludes that the Debtor lacks standing to bring the Section 542(b) Counts. Accordingly, the Section 542(b) Counts must be dismissed. Cf Petrowax, supra (turnover action dismissed for lack of the requisite plan provision). B. Preference Counts (Res Judicata) The Defendants assert that the Preference Counts are barred by the res judica-ta effect of the confirmed Plan. The court disagrees for the reasons that follow. 1. The Standard The Second Circuit has articulated the following standard for when the res judi-cata effect of a judgment bars a second action. In judging the preclusive effect of a prior judgment for res judicata purposes, we decide first, whether the holding constituted a final judgment on the merits, and then, whether the action was brought before a court of competent jurisdiction. [T]he doctrine bars relitigation not just of those claims which were brought in a prior proceeding, but of “any other admissible matter” which could have been brought, but wasn’t. [W]e note that the test for deciding sameness of claims requires that the same transaction, evidence, and factual issues be involved .... Also dispositive to a finding of preclusive effect, is whether an independent judgment in a separate proceeding would “impair or destroy rights or interests established by the judgment entered in the first action.” Sure-Snap Corp. v. State Street Bank and Trust Co., 948 F.2d 869, 872-74 (2d Cir.1991) (citations and footnote omitted). 2. Sure-Snap The controlling case on the issue of the res judicata effect of a confirmed plan is Sure-Snap, supra. In Sure-Snap, the Debtor (as plaintiff) filed a chapter 11 petition for the express purpose of restructuring its loan from the defendant banks. Sure-Snap, 948 F.2d at 870-71. Sure-Snap then filed a plan of reorganization and" }, { "docid": "6697391", "title": "", "text": "years under section 546(a)(1). It held that in a case in which a chapter 11 trustee had been appointed eight months after the case was filed, a successor chapter 7 trustee cannot bring an avoiding action more than two years after the original chapter 11 trustee was appointed. Ford v. Union Bank (In re San Joaquin Roast Beef), 7 F.3d 1413, 1417-18 (9th Cir.1993) (“San Joaquin Roast Beef”)', cf., Independent Fire Ins. Co. v. Pender (In re Phillip), 948 F.2d 985 (5th Cir.1991). Essential to that conclusion was a determination that the original trustee had two years from the date of appointment in which to pursue the trustee’s avoiding powers. Thus, the running of the trustee’s two years permitted by section 546(a)(1) is triggered by the first appointment of a trustee under either 11 U.S.C. § 702 or 11 U.S.C. § 1104 and is not extended or resurrected by appointment of a successor trustee or by conversion to another chapter. A The upshot of Softwaire Centre and San Joaquin Roast Beef is that in the Ninth Circuit there are two distinct two-year limitation periods for avoiding actions subject to section 546(a)(1). A debtor in possession gets two years from the date of filing the case. All trustees get two years from the date the first trustee was appointed. In other circuits, where there is a possibility that a successor chapter 7 trustee would have another two years, there could be three or more distinct two-year periods under section 546(a)(1) for the same preferential transfer. The salient point is that separate limitation periods apply to at least some of the potential plaintiffs who may become entitled to pursue the actions covered by section 546(a)(1). There are the various trustees. There is the debtor in possession. 11 U.S.C. § 1107(a). There is the revested debtor under a plan of reorganization. 11 U.S.C. § 1123(b)(3)(B). There is the representative of the estate appointed for the purpose of pursuing such actions. 11 U.S.C. § 1123(b)(3)(B); Briggs v. Kent (In re Professional Inv. Properties), 955 F.2d 623, 625-26 (9th Cir.1992); Citicorp Acceptance Co. v. Robison" }, { "docid": "7243671", "title": "", "text": "plan extending the time for filing objections to claims. Several courts have held that to reserve a right to litigate a claim after confirmation, the debtor must do so by explicitly reserving the right as to that specific claim, and not by a general provision in the plan allowing for an objection to any claim. In re Rainbow Trust, 200 B.R. 785 (Bankr.D.Vt.1996) (holding that reservation of right to object to claims did not preclude application of res judicata); In re Kelley, 199 B.R. 698 (9th Cir. BAP 1996) (finding a blanket reservation insufficient to prevent the application of res judicata to a specific action); In re Hooker Investments, Inc., 162 B.R. 426 (Bankr.S.D.N.Y.1993) (allowing a challenge to a claim because the right to challenge that claim was specifically reserved); In re Mickey’s Enterprises, Inc., 165 B.R. 188 (Bankr.W.D.Tex.1994)(holding that debtor’s general retention of the right to pursue § 547 actions did not the preclude creditor’s assertion of res judicata when debtor brought a post-confirmation preference action). The rationale of these eases is illustrated by the decision in In re Mickey’s Enterprises, Inc., supra. In that case, the court found that the creditor did not file a proof of claim because no claims or potential claims by the debtor against the creditor were disclosed in the plan or the disclosure statement. Then, after the claims bar date had run, the debtor filed a preference action against the creditor. The court found that the debtor knew about the preference action long before the confirmation hearing or the filing of the disclosure statement. The court concluded that the creditor would have filed a claim if it had known that the debtor intended to assert a preference action against it. The court therefore found that the debtor’s disclosure statement was inadequate and ruled that it would be inequitable to allow the debtor to pursue the preference action. The court stated: And, clearly, any bankruptcy litigation that the plan proponent is planning on bringing against a known creditor with known claims who has a right to be involved in the confirmation process and who" }, { "docid": "1136357", "title": "", "text": "also asserts that the Rejection Order is not a final one which would trigger res judicata. Because, as I will explain, I find that this adversary proceeding does not involve the same cause of action previously decided, I need not reach the issue of finality. . Indeed, during the first action the trade group informed the Pharmaceutical court that it would amend its complaint to assert some of the same claims brought in the second action although it never followed through on the amendment. The court found nothing precluded the assertion of the separate cause of action in a subsequent suit rather than in an amended pleading. 586 F.Supp. at 748 n. 12. See also Board of Ed. v. Hufstedler, 641 F.2d 68, 71 (2d Cir.1981) (res judicata does not apply even though separate causes of action may be joined in same suit). . Section 365(g)(1) provides in pertinent part that the rejection of an executory contract constitutes a breach immediately before the date of the filing of the petition. . So great is the need to insulate an estate from future liability that in those instances where it is unclear whether a contract subsists, the court will typically permit rejection to the extent that the contract is executory, reserving until the creditor’s damage claim is considered the more complex issues which would derail an expeditious rejection. . The Shehu court found nothing, however, to preclude a party from presenting evidence of the bona fides of its counterclaims to support the denial of a motion for relief from the stay. The court made clear that only a limited inquiry should be undertaken, as the merits of the counterclaims could not be decided at the lift stay hearing. 128 B.R. at 29. See also, In re Roxrun Estates, Inc., 74 B.R. 997, 1003-04 (Bankr.S.D.N.Y.1987.) . The Defendants argued that the contract was only executory as to future obligations under the agreement. As to portions of the agreement which had been fully performed such as the consideration paid to Gelina and the assignment of the commissions, they argued that the contract was" }, { "docid": "21110611", "title": "", "text": "Appellate Panel recently explained the distinction in In re Kelley, 199 B.R. 698 (9th Cir. BAP 1996). In Kelley the bankruptcy confirmation plan contained a reservation that was “express” in that it was written (as would be any reservation in a confirmation plan), but “general” in that it reserved rights to bring claims without identifying the claims. The court explained: “If a confirmed plan expressly reserves the right to litigate a specific cause of action after confirmation, then res judicata does not apply. On the other hand, if the debtor fails to mention the cause of action ... then he will be precluded from asserting it postconfirmation.” Id. at 704 (emphasis added; internal citations omitted). The court noted that “[ejven a blanket reservation by the debtor reserving ‘all causes of action which the debtor may choose to institute’ has been held insufficient to prevent the application of res judicata to a specific action.” Id. (citing In re Hooker Invs., Inc., 162 B.R. 426, 433 (Bankr.S.D.N.Y.1993)). The court determined that the confirmation plan language in Kelley, which attempted to reserve the right to bring “adversary proceedings to contest the amount, allowability, priority and/or secured status of any claims which the Debtors believe are not proper,” was little more that a general reservation of rights “insufficient to prevent the application of res judicata.” Id. at 704. To avoid res judicata the reservation of a cause of action must be both express, as in writing, and express, as in specifically identified. D & K failed to identify any claim it was reserving and its cause of action thus is barred. D & K urges us instead to rely on language in In re Envirodyne Industries, Inc., 174 B.R. 986 (Bankr.N.D.Ill.1994). There the bankruptcy court commented on the defendant’s arguments about res judicata, stating that they “might be persuasive if future causes of action were not reserved for in the Disclosure Statement, Plan and Order____” Id. at 991. Yet even a casual reading of the reservation at issue reveals that the right to preclude claims is both express and specific, even if broadly so," }, { "docid": "2015396", "title": "", "text": "right to litigate a specific cause of action after confirmation, then res judicata does not apply”) (citing Sure-Snap Corp. v. Bradford National Bank, 128 B.R. 885, 888 (D.Vt.1991) and Bonwit Teller, Inc. v. Jewelmasters, Inc. (In re Hooker Investments, Inc.), 162 B.R. 426, 433 (Bankr.S.D.N.Y.1993)); see also In re U.S.N. Communications, Inc., 280 B.R. 573, 588 (Bankr.D.Del.2002) (same) (citations omitted); Cohen v. TIC Financial Systems (In re Ampace Corp.), 279 B.R. 145, 156 (Bankr.D.Del.2002) (same). However, “courts are divided on how specific the language of retention and enforcement must be under § 1123(b)(3)(B) to adequately reserve a cause of action for adjudication at a later date.” Ampace Corp., 279 B.R. at 157 (citation omitted). The starting point for this Court to determine whether the right to litigate the claims set forth in the Amended Complaint was effectively reserved in this case is the Amended Plan that was confirmed on October 13, 1999 by the Order Confirming Plan. Article XII, Section 12.4 of the Amended Plan contains the following reservation of rights: 12.4 Bights of Action. On and after the Confirmation Date, each Debtor and its Committee will retain and have the exclusive right to enforce any and all present or future rights, claims or causes of action against any person and rights of such Debtor that arose before or after the Commencement Date, including, but not limited to, rights, claims, causes of action, avoiding powers, suits and proceedings arising under sections 544, 545, 547, 548, 549, 550 and 553 of the Bankruptcy Code. Each Debtor and its Committee may pursue, abandon, settle or release any or all such rights of action, as it deems appropriate, without the need to obtain approval or any other or further relief from the Bankruptcy Court. Each Debtor may, in its discretion (in consultation with its Committee), offset any such claim held against a person against any payment due such person under this Plan; provided, however, that any claims of each Debtor arising before the Commencement Date shall first be offset against Claims against such Debtors arising before the Commencement Date. The language in the" }, { "docid": "2015395", "title": "", "text": "Under 11 U.S.C. § 1123(b)(3)(B), a chapter 11 “plan may ... provide for ... the retention and enforcement by the debtor” of “any claim or interest belonging to the debtor or to the estate .... ” The Browning court, as well as courts in other jurisdictions, recognized that the res judicata effects of a confirmation order may be avoided where the plan of reorganization expressly reserves the right to litigate certain claims. Browning, 283 F.3d at 774-75; D & K Properties Crystal Lake v. Mutual Life Insurance Co. of New York, 112 F.3d 257, 259-60 (7th Cir.1997); Micro-Time Management Systems, Inc. v. Allard & Fish, P.C. (In re Micro-Time Management Systems, Inc.), Nos. 91-2260, 91-2261, 1993 WL 7524, at *4 (6th Cir. Jan.12, 1993) (finding res judicata will bar later litigation of any claims “not expressly reserved in the plan or reorganization or the order confirming the plan of reorganization”) (citation omitted); Kelley v. South Bay Bank (In re Kelley), 199 B.R. 698, 704 (9th Cir. BAP 1996) (“If a confirmed plan expressly reserves the right to litigate a specific cause of action after confirmation, then res judicata does not apply”) (citing Sure-Snap Corp. v. Bradford National Bank, 128 B.R. 885, 888 (D.Vt.1991) and Bonwit Teller, Inc. v. Jewelmasters, Inc. (In re Hooker Investments, Inc.), 162 B.R. 426, 433 (Bankr.S.D.N.Y.1993)); see also In re U.S.N. Communications, Inc., 280 B.R. 573, 588 (Bankr.D.Del.2002) (same) (citations omitted); Cohen v. TIC Financial Systems (In re Ampace Corp.), 279 B.R. 145, 156 (Bankr.D.Del.2002) (same). However, “courts are divided on how specific the language of retention and enforcement must be under § 1123(b)(3)(B) to adequately reserve a cause of action for adjudication at a later date.” Ampace Corp., 279 B.R. at 157 (citation omitted). The starting point for this Court to determine whether the right to litigate the claims set forth in the Amended Complaint was effectively reserved in this case is the Amended Plan that was confirmed on October 13, 1999 by the Order Confirming Plan. Article XII, Section 12.4 of the Amended Plan contains the following reservation of rights: 12.4 Bights of Action." }, { "docid": "18739401", "title": "", "text": "functional equivalent of trustees and that § 546(a)(1) applies to them as well as trustees. However, in the most recent decision on this issue, the Fourth Circuit held that the two-year limitations period begins to run only upon the appointment of one of the trustees specified in § 546(a)(1). Maurice Sporting Goods, Inc. v. Maxway Corp. (In re Maxway Corp.), 27 F.3d 980 (4th Cir.1994). This decision is consistent with the overwhelming majority of district and bankruptcy courts who have concluded that the two-year limitations period does not apply to Chapter 11 debtors in possession. See e.g., Brin-Mont Chems., Inc. v. Worth Chem. Corp. (In re Brin-Mont Chems., Inc.), 154 B.R. 903, 905 (M.D.N.C.1993); Tidwell v. Bank South, N.A. (In re Denver/Robins Venture Partners, Ltd.) 166 B.R. 769, 773 (Bankr.M.D.Ga. 1994); Bonwit Teller, Inc. v. Jewelmasters, Inc. (In re Hooker Investments, Inc.), 162 B.R. 426, 437 (Bankr.S.D.N.Y.1993); Pullman Constr. Indus., Inc. v. National Steel Service Center (In re Pullman Constr. Indus., Inc.), 132 B.R. 359, 364 (Bankr.N.D.Ill.1991). The Eleventh Circuit has yet to address this issue. To determine whether the two-year limitations period applies to debtors in possession, this court looks to the language of § 546(a)(1). “Statutory interpretation begins with an analysis of the language of the statute.” Maxway, 27 F.3d at 982 (citing Landreth Timber Co. v. Landreth, 471 U.S. 681, 685, 105 S.Ct. 2297, 2301, 85 L.Ed.2d 692 (1985)). “As long as the statutory scheme is coherent and consistent, there generally is no need for a court to inquire beyond the plain language of the statute.” United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989). Further, whenever the language of a statute is unambiguous, courts need not go behind its text. See In re James Cable Partners, L.P., 27 F.3d 534 (11th Cir.1994) (citing U.S. v. Rush, 874 F.2d 1513, 1515 (11th Cir.1989)). The Fourth Circuit in Maxway concluded that the language of § 546(a)(1) is clear on its face and that it requires an avoidance action to be commenced within two years of the appointment of one" }, { "docid": "21110614", "title": "", "text": "not admissible to explain what was in effect a contract between the debtor and the creditor. Even if it were not inadmissible, the language abandoning the claim is not as broad or as explicit as D & K suggests. The claim was abandoned “to the extent that the Breach of Contract Action may be deemed a cause of action within the purview of Section 7.1----” If it is not deemed a cause of action explicitly reserved by 7.1, then by its own terms the disbursing agent abandoned to D & K nothing. The disbursing agent cannot abandon rights greater than those granted to it in the eon-finned plan. Cf. Sure-Snap Corp. v. State Street Bank and Trust Co., 948 F.2d 869, 873 (2d Cir.1991) (unliquidated claims vested back to the debtor do so subject to res judicata bar). Because the plan extinguishes suits among parties to the plan, unless expressly reserved, the disbursing agent had no claim for breach of contract that was not barred by res judicata. And because the disbursing agent had no such claim, D & K took no such claim under the abandonment order. Citing the rule that bankruptcy plans are analogous to contracts, see UNR Industries, Inc. v. Bloomington Factory Workers, 173 B.R. 149, 156-57 (N.D.Ill.1994), D & K argues that the district court’s construction creates a nullity of paragraph 7.1, contrary to general rules of construction that disapprove of so rendering a contract provision. It does not. The paragraph transfers to the disbursing agent “causes of action existing in favor of the Debtor or the Debtor in Possession.” This permits, if not requires, the disbursing agent to pursue legal claims D & K might have against others. The idea is to bring into the bankrupt estate all moneys owed to the estate and maximize funds available for distribution to creditors. In D & K’s ease it might, for instance, authorize the disbursing agent to sue a tenant of the shopping center who owed rent. It does not create blanket authorization to file lawsuits and reopen issues that were considered and settled, or could have" }, { "docid": "7876376", "title": "", "text": "re Okan's Foods, Inc.), 217 B.R. 739 (Bankr.E.D.Pa.1998); Welsh v. Quabbin Timber, Inc., 199 B.R. 224 (D.Mass.1996); Freedom Ford, Inc. v. Sun Bank & Trust Co. (Matter of Freedom Ford), 140 B.R. 585 (Bankr.M.D.Fla.1992); State of Ohio, Dept. of Taxation v. H.R.P. Auto Center, Inc. (In re H.R.P. Auto Center, Inc.), 130 B.R. 247 (Bankr.N.D.Ohio 1991); Sure-Snap Corp. v. Bradford Nat’l Bank, 128 B.R. 885 (D.Vt.), aff'd, 948 F.2d 869 (2d Cir.1991); Pako Corp. v. Citytrust, 109 B.R. 368 (D.Minn.1989); Louden, 106 B.R. 109; Hoffman v. First Nat’l Bank of Akron, IA (In re Hoffman), 99 B.R. 929 (N.D.Iowa 1989); Galerie Des Monnaies of Geneva v. Deutsche Bank, A.G. (In re Galerie Des Monnaies of Geneva, Ltd.), 55 B.R. 253 (Bankr.S.D.N.Y.1985), aff'd, 62 B.R. 224 (S.D.N.Y.1986). Cf. Donaldson v. Bernstein, 104 F.3d 547 (3d Cir.1997) (debtors' principals judicially estopped from asserting that one of them had terminated relationship with debtor because debtor did not disclose alleged resignation prior to bankruptcy court's approval of plan of reorganization); Cullen Center Bank & Trust v. Hensley (Matter of Criswell), 102 F.3d 1411 (5th Cir.1997) (Chapter 7 trustee judicially estopped from asserting that creditor was not transferee of oil and gas properties that debtor fraudulently conveyed to children, because trustee succeeded in preference action based on assertion that creditor's lien was a transfer); Eubanks v. F.D.I.C., 977 F.2d 166 (5th Cir.1992) (res judicata effect of order confirming plan of reorganization barred debtors from asserting undisclosed claims); County Fuel Co., Inc. v. Equitable Bank Corp., 832 F.2d 290 (4th Cir.1987) (debtor's failure to assert breach of contract counterclaim to proof of claim filed by creditor barred subsequent breach of contract action against creditor based on \"principles of waiver closely related to those that, in the interests of repose and integrity, underlie res judicata”); United Virginia Bank/Seaboard Nat’l v. B.F. Saul Real Estate Investment Trust, 641 F.2d 185 (4th Cir.1981) (creditor judicially estopped from litigating issue based on earlier inconsistent position in bankruptcy proceedings). . Even if detrimental reliance were an element, there is evidence that Browning relied on the no-claims-existed representations in withdrawing its objection" }, { "docid": "14776603", "title": "", "text": "“[f]or the same reasons that abstention is appropriate in this case, the doctrine of laches should bar Texaco from obtaining relief from this Court so near to the state court trial date” (Resp.Mem. at 21). At the hearing Respondents submitted a purported affidavit setting forth their legal and other costs incurred in connection with the State Court Action. With respect to the doctrine of laches, the Second Circuit has said: A court of equity confronted with a laches issue must consider whether the plaintiff has inexcusably slept on ... rights so as to make a decree against the defendant unfair. One factor traditionally considered by courts of equity in determining whether the plaintiffs claim is barred by laches is the prejudice to the defendant resulting from the delay. Prudential Lines, Inc. v. Exxon Corp., 704 F.2d 59, 65 (2d Cir.1983), (internal citations omitted); Bonwit Teller, Inc. v. Jewelmasters, Inc. (In re Hooker Investments, Inc.), 162 B.R. 426, 438 (Bankr.S.D.N.Y.1993). The Respondents complain that Texaco filed this motion in this Court on the very eve of the trial long scheduled in the State Court Action for May 10, before the decision on Respondents’ motion to strike Texaco’s affirmative defense of the discharge and after Respondents had expended substantial funds in over eighteen months of litigation against Texaco. Respondents’ counsel urge that this Court should “send Texaco a message” that such deplorable litigation tactics will not be countenanced. The problem with these plaints is that Respondents were put on notice by Texaco’s first responsive pleading filed in the State Court Action in September 1993 that Texaco was asserting the defense of its discharge in bankruptcy. Respondents could have tested that defense promptly either in the State Court Action, or in this Court, or in the Louisiana District Court to which the State Court Action was briefly removed. Respondents’ failure to do so, advised by able counsel, like Texaco’s decision to file the instant motion, was undoubtedly the product of litigation strategy. Respondents’ legal costs incurred in the State Court Action could not have been avoided by earlier resolution of the discharge defense," }, { "docid": "1906761", "title": "", "text": "debt. . The Christmas selling season is the most important sales period for most retailers. Their annual performance often turns on the success or failure of the sales during this period. . The DIP facility has been reduced by $50 million and extended during the pendency of the Chapter 11 case. It is currently set to expire in August, 1994. Debtors' Exh. 175 at 22. . The examiner concluded that avoiding any of the $133.5 million debt incurred to retire the 12% % notes would be \"unlikely.” . This retention was based at least in part on the fact that the debtors' bankruptcy counsel, Weil, Gotshal & Manges, had represented A & S prior to the LBO. . Under section 546(a) of the Bankruptcy Code, a trustee has two years to commence an avoidance action. At the time the debtors were contemplating bringing suit, there was a divergence of opinion as to whether the two year period applied to debtors in possession. See Bonwit Teller, Inc. v. Jewelmasters, Inc., (In re Hooker Investments, Inc.), 162 B.R. 426 (Bankr.S.D.N.Y.1993). Best commenced suit when it did so as not to risk being precluded from prosecuting the fraudulent transfer and preference actions. Recently, the Second Circuit has joined three of its sister circuits and declared that the two-year limitations period also applies to debtors in possession. See In re Century Brass Products, Inc., 22 F.3d 37 (2d Cir.1994). . Best filed its first amended plan and disclosure statement on October 7, 1993. On November 18, 1993, Best filed its second amended joint plan, followed shortly by a disclosure statement. Best submitted yet a third amended plan and disclosure statement on December 9, 1993, virtually minutes before a scheduled hearing to approve the proposed disclosure statement. A lengthy contested hearing ensued at which numerous changes to the disclosure statement were offered and adopted. After all of the interposed objections were either resolved or overruled, I approved the disclosure statement. Before the solicitation package was mailed to creditors, Best reached agreement with the Equitable Group and the Banks to settle the Equitable Preference Action. (The" }, { "docid": "8063532", "title": "", "text": "Whether there exists an identity of both parties or their privies. (4) Whether the later proceeding involves the same “cause of action” as its predecessor. See Windsor v. McVeigh, 93 U.S. 274, 277-78, 23 L.Ed. 914 (1876); United States v. Hartley, 612 F.2d 1009, 1010 (5th Cir.1980). Closely related to the doctrine of claim preclusion is the doctrine of \"law of the case.” Properly understood, however, law of the case \"is a rule of practice under which a rule of law enunciated by a federal court 'not only establishes a precedent for subsequent cases under the doctrine of stare decisis, but [also] establishes the law which ... will, normally, apply to the same issues in subsequent proceedings in the same case.'\" Wallis v. Justice Oaks II, Ltd. (In re Justice Oaks II, Ltd.), 898 F.2d 1544, 1550 (11th Cir.1990) (quoting Morrow v. Dillard, 580 F.2d 1284, 1289 (5th Cir.1978) (citations and footnotes omitted)). Thus, as its name applies, \"law of the case” prevents re-litigation of those matters directly or necessarily decided at some earlier point in an ongoing action. See id. . Given that the confirmation Order lies at the root of section 1327(a)'s res judicata bar, that same Order presents the first logical candidate for an exception. Indeed, where the Order, or the reorganization plan which it confirmed, includes a reservation by the debtor of a right to bring future claim objections, res judicata should cement terms of that reservation just as it would the rest of the Order and allow the reservation to create its own statute of limitations for future objections. In re Bancroft Cap Co., 182 B.R. 538, 538-39 (Bankr.E.D.Ark.1995); Holly's Inc. v. City of Kentwood (In re Holly’s Inc.), Ill B.R. 545, 564 n. 24 (Bankr.W.D.Mich.1994); Bonwit Teller, Inc. v. Jewelmasters, Inc. (In re Hooker Inv., Inc.), 162 B.R. 426, 433-34 (Bankr.S.D.N.Y.1993). Thus, the unique terms of the plan and Order potentially may provide for future objections to claim, notwithstanding 11 U.S.C. 1327(a). Here, while the confirmation Order made expressed provision for post-confirmation objections, that reservation came subject to a six month time limitation. As" }, { "docid": "5513326", "title": "", "text": "actions since we find that the powers themselves were not properly retained. Although some courts have found creative methods for contorting the provisions of Chapter 11 Plans to find a retention of the avoidance powers, we concur with the cases that require more particularity in the Plan provisions. Compare In re Centennial Industries, Inc., 12 B.R. 99 (Bankr.S.D.N.Y.1981) with In re Neptune Worldwide Moving, Inc., 111 B.R. 457, 463 (Bankr.S.D.N.Y.1990). (The Court in Centennial concluded that retention of the right to object to claims post-confirmation was sufficient to find a retention of authority to bring an adversary action seeking recovery of a preferential transfer. The Court in Neptune rejected this position as ignoring the distinction between the Motion practice utilized to object to claims and the required adversarial practice necessary to pursue avoidance actions.) This Court is not without guidance in this Circuit on this issue. See In re Sweetwater, supra. The Tenth Circuit Court of Appeals which binds this Court has found that avoidance claims are also claims of the estate as that term is defined under 11 U.S.C. § 101(4). RMC validly reserved in itself the right to pursue “claims” against insiders, shareholders, officers, directors, management and other personnel of the Debtor arising after March 24, 1989, while reserving the enforcement of “claims” against these same parties arising before March 24, 1989 in the Litigation Trustee. In the instant case, the transfers sought to be avoided occurred between May, 1988 and April, 1989. Due to the lack of specificity expressed in the Complaint as to the precise dates the transfers occurred, and since Mr. Treat is undoubtedly an “insider,” this action may have been reserved in either RMC or the Litigation Trustee depending on the date of transfer. Although arguably the first element of § 1123(b)(3)(B) has been satisfied by RMC, we find that the second has not. The second element of § 1123(b)(3)(B) requires that RMC be a representative of the estate in order to enforce the avoidance actions. A “case-by-case approach to determine whether a particular party seeking to enforce a claim is a ‘representative of" }, { "docid": "8063533", "title": "", "text": "in an ongoing action. See id. . Given that the confirmation Order lies at the root of section 1327(a)'s res judicata bar, that same Order presents the first logical candidate for an exception. Indeed, where the Order, or the reorganization plan which it confirmed, includes a reservation by the debtor of a right to bring future claim objections, res judicata should cement terms of that reservation just as it would the rest of the Order and allow the reservation to create its own statute of limitations for future objections. In re Bancroft Cap Co., 182 B.R. 538, 538-39 (Bankr.E.D.Ark.1995); Holly's Inc. v. City of Kentwood (In re Holly’s Inc.), Ill B.R. 545, 564 n. 24 (Bankr.W.D.Mich.1994); Bonwit Teller, Inc. v. Jewelmasters, Inc. (In re Hooker Inv., Inc.), 162 B.R. 426, 433-34 (Bankr.S.D.N.Y.1993). Thus, the unique terms of the plan and Order potentially may provide for future objections to claim, notwithstanding 11 U.S.C. 1327(a). Here, while the confirmation Order made expressed provision for post-confirmation objections, that reservation came subject to a six month time limitation. As such, the text of that Order cannot be read to provide license for the presentment of new claim objections at a point more than two years after confirmation. Bancroft, 182 B.R. at 538-39. Indeed, to the contrary, the Court finds the terms of the Order to suggest that, absent an objection within the six month period, all claims shall be deemed valid. Hooker, 162 B.R. at 433-34. . Admittedly, there exists a subtle tension between the finality conferred by section 1327(a) and the court's power to reconsider allowance under section 502(j). International Yacht & Tennis, Inc. v. Wasserman (In re International Yacht & Tennis, Inc.), 922 F.2d 659, 662 (11th Cir.1991). Specifically, adherence to both provisions creates a rule whereby the parties themselves cannot object to claims after confirmation, yet they may ask the Court to reconsider that implicit allowance decision which forecloses them from further objection. Indeed, one might be tempted to find post-confirmation reconsideration under section 502(j) precluded as a matter of res judicata, just like the 502(a) objection itself. See In re" }, { "docid": "21110617", "title": "", "text": "(9th Cir. BAP 1996); In re MAI Systems Corp., 178 B.R. 50, 55 (Bankr.D.Del.1995); In re Hooker Invs., Inc., 162 B.R. 426, 433 (Bankr.S.D.N.Y.1993). Seventh Circuit Rule 53(e) provides: “Except to the purposes set forth in Circuit Rule 53(b)(2)(iv), no unpublished opinion or order of any court may be cited in the Seventh Circuit if citation is prohibited in the rendering court.” While the Sixth Circuit disfavors citation of unpublished opinions by counsel, it permits citation where the case has “precedential value in relation to a material issue in a case and [] there is no published opinion that would serve as well ....\" 6th Cir.R. 24(c). The Sixth Circuit rules place no limitation on citation to unpublished opinions by courts. . Indeed, rather than expressly reserving claims against res judicata preclusion, both statements appear merely to set out who is responsible for bringing claims that do exist in favor of the debtor that either survive the bankruptcy order, or arise after its confirmation. Nevertheless, we examine whether they also serve as express reservations of claims capable of surviving the res judicata bar. . Even if we had determined that Section 7.1 reserved this cause of action, an alternative res judicata bar to D & K’s claim arises from the May 31, 1994 order allowing MONY's secured claim. D & K did not object to the claim at the May 31 hearing despite having the opportunity to do so. See Fed.R.Bankr.P. 3007 (setting out procedure for objecting to allowance of a claim). By pursuing damages from MONY, D & K is in effect contesting the validity and amount of MONY’s claim. Because it had the opportunity to contest the claim before the bankruptcy court, even if the reservation had preserved D & K’s right to pursue this action it became barred by res judicata when D & K failed to do so. See Matter of Baudoin, 981 F.2d 736, 741-42 (5th Cir.1993) (discussing relationship between core proceedings, counterclaims, and res judicata)." }, { "docid": "4358742", "title": "", "text": "establish substantially similar facts and that they therefore met Florida’s requirement for “identity.” Fields, 755 F.Supp. at 379-80. The Florida courts seem to allow multiple suits based on the same transaction only if the basic legal theory changes from the first suit to the second. See e.g., Signo v. Florida Farm Bureau Cas. Ins. Co., 454 So.2d 3, 4-6 (Fla. 4th Dist.Ct.App.1984) (second suit attempting to create liability under negligence theory was barred by pri- or suit alleging a different negligence theory because “the mere changing of the theory on which the plaintiff proceeds does not constitute a distinct and different cause of action obviating the defense of res judicata.”). Cf. Pfeiffer v. Roux Labs., Inc., 547 So.2d 1271, 1272-73 (Fla. 1st Dist.Ct.App. 1989) (ERISA and common law of contract are not identical causes of action; plaintiff may bring an ERISA suit after losing a case arising under Florida contract law). Although this question is a close one, we conclude that the federal takings claim is essentially the same claim as that raised in the Florida law inverse condemnation action for purposes of applying Florida’s merger and bar rules. Cf. Adams v. Sewell, 946 F.2d 757, 762 (11th Cir.1991) (rejects application of res judicata where actions are entirely unrelated). We are simply unconvinced that the absence in federal takings law of a requirement that a property owner establish an absolute decrease in property value over time changes the nature of the action sufficiently to avoid the operation of Florida’s bar and merger rules. Because the underlying legal theory was essentially the same in both proceedings, the district court correctly held that res judicata would bar a second suit based on' federal takings law in the Florida courts and, consequently, would also bar such an action in the federal courts by operation of state section 1738. Thus, unless the homeowners made a valid Jennings reservation, they are barred from litigating their federal claims in federal court. 2. Homeowners failed to make a Jennings reservation Although this Circuit has expanded a litigant’s ability to preserve feder al court review of federal constitutional" }, { "docid": "18669448", "title": "", "text": "goods distributor, sold merchandise to Debtors on open account. After receiving an invoice from Maurice, Debtors ordinarily made payment within four months, indicating the invoice paid on the check voucher. Between July 18,1988 and September 7,1988, a period in which Debtors were experiencing extreme financial difficulty, Debtors made eight separate payments to Maurice. On October 7, 1988, Debtors voluntarily filed bankruptcy petitions for Chapter 11 reorganization. During the postpetition period, Debtors continued to manage their property as debtors in possession; a trustee was never appointed. Because postpetition revenues were insufficient to fund a reorganization, the bankruptcy court confirmed a plan in August 1990 that provided for the liquidation of Debtors’ assets. The plan also authorized the Committee to file actions on behalf of Debtors for the benefit of the estate. On July 25, 1991, over two years after the petitions were filed but prior to the close of the case, the Committee filed this action, seeking to recover the payments Debtors made to Maurice during the 90 days prior to the petition date. On cross motions for summary judgment, the bankruptcy court granted judgment in favor of the Committee in the amount of $543,038.92. After conducting a de novo review, the district court affirmed. II. The issue presented is whether the two-year statute of limitations for bringing avoidance actions begins to run upon the “appointment” of a debtor in possession, ie., the filing of a Chapter 11 bankruptcy petition. See 11 U.S.C.A. § 1101(1) (West 1993). Although it is one of first impression in this circuit, numerous other courts have addressed this issue. Relying on the plain language of § 546(a)(1), the overwhelming majority of bankruptcy and district courts have concluded that the two-year statute of limitations begins to run only upon the appointment of one of the trustees specified in§ 546(a)(1). See, e.g., Bonwit Teller, Inc. v. Jewelmasters (In re Hooker Invs., Inc.), 162 B.R. 426 (Bankr.S.D.N.Y.1993) (listing cases); Brin-Mont Chems., Inc. v. Worth Chem. Corp. (In re Brin-Mont Chems., Inc.), 154 B.R. 903 (M.D.N.C.1993) (same). However, the four Courts of Appeals that have addressed the issue have concluded" } ]

[ { "docid": "2740105", "title": "", "text": "in the alternative, concluding that excepting the guaranteed loan from discharge would work an undue hardship under either test. We need not detour to confront the point, as we conclude that Lorenz’s showing was fundamentally, and fatally deficient, under either model. The “totality of the circumstances” analysis requires a debtor to prove by a preponderance of evidence that (1) his past, present, and reasonably reliable future financial resources; (2) his and his dependents’ reasonably necessary living expenses; and (3) other relevant facts or circumstances unique to the case, prevent him from paying the student loans in question while still maintaining a minimal standard of living, even when aided by a discharge of other pre-petition debts. Kopf, 245 B.R. at 739; see also Hicks v. Educ. Credit Mgmt. Corp. (In re Hicks), 331 B.R. 18, 31 (Bankr.D.Mass.2005) (distilling so-called totality of the circumstances test to “one simple question: Can the debtor now, and in the foreseeable future, maintain a reasonable, minimal standard of living for the debtor and the debtor’s dependents and still afford to make payments on the debtor’s student loans?”). Courts “should consider all relevant evidence — the debtor’s income and expenses, the debtor’s health, age, education, number of dependents and other personal or family. circumstances, the amount of the monthly payment required, the impact of the general discharge under chapter 7 and the debtor’s ability to find a higher-paying job, move or cut living expenses.” Hicks, 331 B.R. at 31; see also Kelly, 312 B.R. at 206; Savage, 311 B.R. at 840; Bloch v. Windham Prof'ls (In re Bloch), 257 B.R. 374, 378 (Bankr.D.Mass. 2001); Kopf, 245 B.R. at 744. The Brunner test differs, albeit modestly. See Kopf, 245 B.R. at 731 (comparing tests). Brunner requires a “three-part showing (1) that the debtor cannot, based on current income and expenses, maintain a ‘minimal’ standard of living for herself or her dependants if forced to repay the loans; (2) that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and (3) that the debtor has made good faith" } ]

[ { "docid": "18017770", "title": "", "text": "see also Grogan v. Garner, 498 U.S. 279, 287, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991) (preponderance of the evidence standard for dischargeability complaints). II. Applicable Test for Undue Hardship In determining whether excepting the student loan obligations from discharge would cause Ms. Savage “undue hardship,” the bankruptcy court applied the “totality of the circumstances” test. ECMC ascribes error to the court’s choice of tests, contending that it should have employed the so-called Brunner test. ECMC has, however, waived this argument. Expressly, and without protest, it argued the “totality of the circumstances” in its trial brief, the parties’ joint pretrial statement, and at trial. It is now too late to press the point. See Fleet Mortg. Group, Inc. v. Kaneb, 196 F.3d 265 (1st Cir.1999) (appellate court will not address issues raised for the first time on appeal). The issue is not properly before us. III. Undue Hardship: “Totality of the Circumstances” Under “totality of the circumstances” analysis, a debtor seeking discharge of student loans must prove by a preponderance of evidence that (1) her' past, present, and reasonably reliable future financial resources; (2) her and her dependents’ reasonably necessary living expenses, and; (3) other relevant facts or circumstances unique to the case prevent her from paying the student loans in question while still maintaining a minimal standard of living, even when aided by a discharge of other pre-petition debts. See Kopf, 245 B.R. at 739. A. Past, Present and Reasonably Reliable Future Income. The debtor must show not only that her current income is insufficient to pay her student loans, but also that her prospects for increasing her income in the future are too limited to afford her sufficient resources to repay the student loans and provide herself and her dependents with a minimal (but fair) standard of living. See id. at 745; see also Burkhead v. United States (In re Burkhead), 304 B.R. 560, 566 (Bankr.D.Mass.2004); Bourque v. Educ. Credit Mgmt. Corp. (In re Bourque), 303 B.R. 548, 550 (Bankr.D.Mass.2003). Ms. Savage has not demonstrated that her current level of income and future prospects warrant discharge of her" }, { "docid": "13175121", "title": "", "text": "have adopted the totality of the circumstances test over the Brunner test, although a few courts within this circuit have applied Brunner instead. To determine the appropriate test, we first examine the differences between the Brunner and the totality of circumstances approaches. As the Panel noted in In re Lorenz, the distinctions between the two tests are modest, with many overlapping considerations: The “totality of the circumstances” analysis requires a debtor to prove by a preponderance of evidence that (1) his past, present, and reasonably reliable future financial resources; (2) his and his dependents’ reasonably necessary living expenses; and (3) other relevant facts or circumstances unique to the case, prevent him from paying the student loans in question while still maintaining a minimal standard of living, even when aided by a discharge of other prepetition debts. Kopf, 245 B.R. at 739; see also Hicks v. Educ. Credit Mgmt. Corp. (In re Hicks), 331 B.R. 18, 31 (Bankr.D.Mass.2005) (distilling so-called totality of the circumstances test to “one simple question: Can the debtor now, and in the foreseeable future, maintain a reasonable, minimal standard of living for the debtor and the debtor’s dependents and still afford to make payments on the debtor’s student loans?”). Courts “should consider all relevant evidence — the debtor’s income and expenses, the debtor’s health, age, education, number of dependents and other personal or family circumstances, the amount of the monthly payment required, the impact of the general discharge under chapter 7 and the debtor’s ability to find a higher-paying job, move or cut living expenses.” Hicks, 331 B.R. at 31; see also Kelly, 312 B.R. at 206; Savage, 311 B.R. at 840; Bloch v. Windham Profls (In re Bloch), 257 B.R. 374, 378 (Bankr.D.Mass.2001); Kopf, 245 B.R. at 744. The Brunner test differs, albeit modestly. See Kopf, 245 B.R. at 731 (compar ing tests). Brunner requires a “three-part showing (1) that the debtor cannot, based on current income and expenses, maintain a ‘minimal’ standard of living for herself or her dependants if forced to repay the loans; (2) that this state of affairs is likely to persist" }, { "docid": "15432403", "title": "", "text": "begins making payments. However, the time during which the borrower is in default is not included. The legislation enacting the Ford Program does not define the term “default.” The DOE submitted a copy of the promissory note the Debtor signed for the Student Loan, but the image quality makes its terms impossible to read. Thus, it is impossible for me to tell when the Debtor defaulted under the terms of the Student Loan or whether the terms of default are described in the note at all. At a minimum the record reflects that the Debtor made payments under her ICRP from 1995 to 2000. DISCUSSION Student loan debt is not dis-chargeable in bankruptcy “unless excepting such debt from discharge ... would impose an undue hardship on the debtor and the debtor’s dependents.” 11 U.S.C. § 523(a)(8). The debtor bears the burden of showing by a preponderance of the evidence that excepting the debt from discharge would cause her an undue hardship. See Bronsdon v. Educ. Credit Mgmt. Corp., (In re Bronsdon), 435 B.R. 791, 796-97 (1st Cir. BAP 2010). The Bankruptcy Code does not define “undue hardship.” Sanborn v. Educ. Credit Mgmt. Corp. (In re Sanborn), 431 B.R. 5, 8 (Bankr.D.Mass.2010). This Court, like many other courts in the First Circuit, including the Bankruptcy Appellate Panel, has adopted a totality of the circumstances test for determining whether undue hardship exists in a particular case. See Bronsdon, 435 B.R. at 800-01; Stevenson v. Educ. Credit Mgmt. Corp., 463 B.R. 586, 593-94 (Bankr.D.Mass.2011); Sanborn, 431 B.R. at 7-8; Brunell v. Citibank, N.A. (In re Brunell), 356 B.R. 567 (Bankr.D.Mass.2005). Under the totality of the circumstances test, I must decide whether the Debtor has shown that (1) her past, present, and reasonably reliable future financial resources, (2) her and all her dependents’ reasonably necessary living expenses, and (3) other relevant facts or circumstances unique to the case prevent her from paying the student loans in question while still maintaining a minimal standard of living, even when aided by a discharge of other prepetition debts. See Lorenz v. Am. Educ. Servs. (In re Lorenz)," }, { "docid": "4186981", "title": "", "text": "burden of proving, by a preponderance of the evidence, that repayment of those loans would impose an undue hardship on her and her dependents. Parker v. Gen. Revenue Corp. (In re Parker), 328 B.R. 548, 552 (8th Cir. BAP 2005). “Undue hardship” is not defined in the Bankruptcy Code, so courts have devised their own methods of determining whether an undue hardship exists. In the Eighth Circuit, the “totality of the circumstances” test is used. Long v. Educ. Credit Mgmt. Corp. (In re Long), 322 F.3d 549, 553 (8th Cir.2003) (citing Andrews v. South Dakota Student Loan Assistance Corp. (In re Andrews), 661 F.2d 702 (8th Cir.1981)). The test is fact-intensive and necessitates an examination of the unique facts and circumstances of each case, including non-economic factors in appropriate situations. Cumberworth v. U.S. Dep’t of Educ. (In re Cumberworth), 347 B.R. 652, 658 (8th Cir. BAP 2006). The totality-of-the-circumstances approach maintains the judicial discretion inherent in the statutory language and integrates the adaptability necessary to appropriately consider each case on its own terms. Andrews requires an evaluation of the debtor’s past, present, and reasonably reliable future financial resources; a calculation of the reasonable necessary living expenses of the debtor and her dependents; and any other circumstances unique to the particular bankruptcy case. Long, 322 F.3d at 554 (citing Andrews, 661 F.2d at 704 and Andresen v. Nebraska Student Loan Program, Inc. (In re Andresen), 232 B.R. 127, 140 (8th Cir. BAP 1999)). As the Eighth Circuit expressed in Long: In evaluating the totality-of-the-circumstances, our bankruptcy reviewing courts should consider: (1) the debtor’s past, present, and reasonably reliable future financial resources; (2) a calculation of the debtor’s and her dependent’s reasonable necessary living expenses; and (3) any other relevant facts and circumstances surrounding each particular bankruptcy case. Simply put, if the debtor’s reasonable future financial resources will sufficiently cover payment of the student loan debt — while still allowing for a minimal standard of living — then the debt should not be discharged. Certainly, this determination will require a special consideration of the debtor’s present employment and financial situation — including" }, { "docid": "14691870", "title": "", "text": "good faith finding and the conclusion “that Nash had not shown that her disability was likely to continue for such a period of time that she could not reasonably be expected to repay the education loans in the future.” See Nash v. Conn. Student Loan Found., 330 B.R. 323, 327 (D.Mass.2005). For reasons we shall explain, we affirm without reaching the issue of good faith. I. The Legal Setting In the course of the proceedings to this point, there has been much attention given to the particular test which should be applied to determine “undue hardship.” Congress did not attempt to give specific guidance. We as a circuit have not had occasion to declare our views. Appellees would have us join the nine circuit courts of appeal that have followed the Second Circuit’s test set forth in Brunner v. New York State Higher Educ. Servs. Corp., 831 F.2d 395 (2d Cir.1987) (per curiam). This is a tripartite test, requiring that the debtor show inability, at her current level of income and expenses, to maintain a “minimal” standard of living; the likelihood that this inability will persist for a significant portion of the repayment period; and the existence of good faith efforts to repay the loans. Id. at 396. A facially different test is the Eighth Circuit’s totality-of-circumstances test, which would have courts consider the debt- or’s reasonably reliable future financial resources, his reasonably necessary living expenses, and “any other relevant facts.” See Long v. Educ. Credit Mgmt. Corp. (In re Long), 322 F.3d 549, 554 (8th Cir.2003). Appellant contends that this test does not include “good faith effort” under the “other relevant facts” rubric, although bankruptcy courts within the Eighth Circuit are not unanimous on this issue. She urges a “true totality of the circumstances test,” focusing solely on the ability of the debtor to maintain a minimal standard of living now and in “the foreseeable future” and still afford to make loan repayments. The bankruptcy judge, citing her opinion in Burkhead v. United States (In re Burkhead), 304 B.R. 560, 565 (Bankr.D.Mass. 2004), applied the totality approach but was" }, { "docid": "4595485", "title": "", "text": "32 (D.Mass.2009), citing T.I. Fed. Credit Union v. DelBonis, 72 F.3d 921, 927 (1st Cir.1995). “Undue hardship” is not defined in the Bankruptcy Code. The courts have applied one of two approaches to applying it: either the totality of the circumstances approach or the Brunner test. See Brunner v. New York State Higher Educ. Serv. Corp., 831 F.2d 395 (2d Cir.1987). The only significant difference between these is that under Brunner, the debtor must establish that she made a good faith effort to repay the educational loans at issue. When applying the totality of the circumstances test, the debtor’s efforts to repay may be considered, but evidence of those efforts (or lack thereof) is not necessarily dispositive. Educational Credit Management Corp. v. Kelly, 312 B.R. 200, 206-207 (1st Cir. BAP 2004). The Bankruptcy Appellate Panel for the First Circuit articulated the totality of the circumstances test as follows: The “totality of the circumstances” analysis requires a debtor to prove by a preponderance of evidence that (1) his past, present, and reasonably reliable future financial resources; (2) his and his dependents’ reasonably necessary living expenses; and (3) other relevant facts or circumstances unique to the case, prevent him from paying the student loans in question while still maintaining a minimal standard of living, even when aided by a discharge of other pre-petition debts. Lorenz v. Am. Educ. Servs., 337 B.R. 423, 430 (1st Cir. BAP 2006). Under either test, the initial focus is on the debtor’s current and future ability to repay the student loans. But the totality of the circumstances test allows the Court to consider the facts and circumstances unique to each case and to measure the impact of those facts and circumstances on the debt- or’s ability to pay now and in the future. While this inquiry would include the debt- or’s efforts to repay the loan, I am not persuaded that those efforts should rise to the level of a determinative factor. I am satisfied that the “totality of the circumstances” test frames the inquiry most appropriately. Applying that test to the matter before me, I find" }, { "docid": "19145692", "title": "", "text": "can properly be found only in “truly exceptional circumstances, such as illness or the existence of an unusually large number of dependents.” T.I. Fed. Credit Union v. DelBonis, 72 F.3d 921, 927 (1st Cir.1995) (citation omitted). As the First Circuit has explained, with regard to determining whether a debtor has satisfied her substantial burden to prove undue hardship: nine circuit courts of appeal [] have followed the Second Circuit’s test set forth in Brunner v. New York State Higher Educ. Servs. Corp., 831 F.2d 395 (2d Cir.1987) (per curiam). This is a tripartite test, requiring that the debtor show inability, at her current level of income and expenses, to maintain a “minimal” standard of living; the likelihood that this inability will persist for a significant portion of the repayment period; and the existence of good faith efforts to repay the loans. Id. at 396. A facially different test is the Eighth Circuit’s totality-of-circumstances test, which would have courts consider the debtor’s reasonably reliable future financial resources, his reasonably necessary living expenses, and “any other relevant facts.” See Long v. Educ. Credit Mgmt. Corp. (In re Long), 322 F.3d 549, 554 (8th Cir.2003). Appellant [in Nash] contends that this test does not include “good faith effort” under the “other relevant facts” rubric, although bankruptcy courts within the Eighth Circuit are not unanimous on this issue. She urges a “true totality of the circumstances test,” focusing solely on the ability of the debt- or to maintain a minimal standard of living now and in “the foreseeable future” and still afford to make loan repayments. Nash, 446 F.3d at 190. As courts in the First Circuit have correctly held: [A]lthough § 523(a)(8) does not allow a single debt to be partially discharged, individual educational loans may be discharged while others may be declared non-dischargeable depending on whether each loan, on a cumulative basis, imposes an undue hardship on the debtor and his or her dependents. Grigas v. Sallie Mae Servicing Corp. (In re Grigas), 252 B.R. 866, 874 (Bankr.D.N.H.2000); see also Educational Credit Management Corp. v. Kelly, 312 B.R. 200, 208 (1st BAP" }, { "docid": "273503", "title": "", "text": "made under any program funded in whole or in part by a governmental unit or nonprofit institution, or for an obligation to repay funds received as an educational benefit, scholarship or stipend unless excepting such debt from discharge under this paragraph will imposed an undue hardship on the debtor and the debtor's dependents. 11 U.S.C. § 523(a)(8). . The totality of the circumstances test involves \"an analysis of (1) the debtor's past, present, and reasonably reliable future financial resources; (2) calculation of the debtor’s and his dependents' reasonable necessary living expenses; and (3) any other relevant facts and circumstances surrounding that particular bankruptcy case.” See Kopf v. United States Dep't of Educ. (In re Kopf), 245 B.R. 731, 739 (Bankr.D.Me.2000) (quoting Andresen v. Nebraska Student Loan Program, Inc. (In re Andresen), 232 B.R. 127, 139 (8th Cir. BAP 1999)). . The Brunner test differs, albeit modestly, from the \"totality of the circumstances” test. See Kopf, 245 B.R. 731 (comparing tests). The Brunner test requires a \"three-part showing (1) that the debtor cannot, based on current income and expenses, maintain a 'minimal' standard of living for herself or her dependants if forced to repay the loans; (2) that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and (3) that the debtor has made good faith efforts to repay the loans.” Brunner v. New York State Higher Educ. Serv. Corp., 831 F.2d 395, 396 (2d Cir.1987). The significant difference between the Brunner approach and the totality of the circumstances test is the requirement in Brunner that a debtor demonstrate that she has made good faith efforts to repay the educational loans at issue. See Kelly, 312 B.R. at 206. . Even if Elizabeth earned only $15 per hour, her pre-tax income for a 30-hour week would be $450 per week. Deducting 25% for taxes, her take-home pay would be $337.50 per week or approximately $1,450 per month ($337.50 x 4.3 weeks). . If Troy continues to make $15,000 in sales for every two-month period, or $7,500 in sales every month," }, { "docid": "15432404", "title": "", "text": "(1st Cir. BAP 2010). The Bankruptcy Code does not define “undue hardship.” Sanborn v. Educ. Credit Mgmt. Corp. (In re Sanborn), 431 B.R. 5, 8 (Bankr.D.Mass.2010). This Court, like many other courts in the First Circuit, including the Bankruptcy Appellate Panel, has adopted a totality of the circumstances test for determining whether undue hardship exists in a particular case. See Bronsdon, 435 B.R. at 800-01; Stevenson v. Educ. Credit Mgmt. Corp., 463 B.R. 586, 593-94 (Bankr.D.Mass.2011); Sanborn, 431 B.R. at 7-8; Brunell v. Citibank, N.A. (In re Brunell), 356 B.R. 567 (Bankr.D.Mass.2005). Under the totality of the circumstances test, I must decide whether the Debtor has shown that (1) her past, present, and reasonably reliable future financial resources, (2) her and all her dependents’ reasonably necessary living expenses, and (3) other relevant facts or circumstances unique to the case prevent her from paying the student loans in question while still maintaining a minimal standard of living, even when aided by a discharge of other prepetition debts. See Lorenz v. Am. Educ. Servs. (In re Lorenz), 337 B.R. 423, 430-31 (1st Cir. BAP 2006). Under this approach the Court may consider all relevant evidence: the debtor’s income and expenses, the debtor’s health, age, education, number of dependents and other personal or family circumstances, the amount of the monthly payment required, the impact of the general discharge under Chapter 7, and the debtor’s ability to find a higher-paying job, move, or cut living expenses. See id. Under the totality of the circumstances approach, the debtor’s past efforts to repay are considered but are not necessarily dispositive. See Sanborn, 431 B.R. at 6. In sum the totality of the circumstances test rests on one question: “Can the debtor now, and in the foreseeable near future, maintain a reasonable, minimal standard of living for the debtor and the debtor’s dependents and still afford to make payments on the debtor’s student loans?” Bronsdon, 435 B.R. at 801, quoting Hicks v. Educ. Credit Mgmt. Corp. (In re Hicks), 331 B.R. 18, 32 (Bankr.D.Mass.2005). A debtor’s burden of proof is considerable. The First Circuit has stated that" }, { "docid": "5024920", "title": "", "text": "245 B.R. 731, 737-41 (Bankr.D.Me.2000). In the First Circuit, in the absence of controlling authority, courts have been free to choose its own approach in evaluating undue hardship. Educ. Credit Mgmt. Corp. v. Kelly (In re Kelly), 312 B.R. 200, 206 (1st Cir. BAP 2004); see also Nash v. Conn. Student Loan Foundation et al. (In re Nash), 446 F.3d 188, 190-91 (1st Cir.2006) (declining to adopt a preferred meth od for determining undue hardship under 11 U.S.C. § 523(a)(8)). Many courts within the First Circuit have adopted the totality of circumstances test. See Hicks, 331 B.R. at 23-24; Kopf, 245 B.R. at 739-40. As I stated at trial and have so stated previously, I employ the totality of the circumstances test in evaluating undue hardship claims under 11 U.S.C. § 523(a)(8). Tr. 49; In re Gharavi, 335 B.R. 492, 497 (Bankr.D.Mass.2006). In so doing, I will review all relevant factors and circumstances surrounding a particular bankruptcy case. These factors include a debtor’s past, present and reasonably reliable future financial resources, and reasonable necessary living expenses. Id.; Kopf, 245 B.R. at 738, 745-6. As Judge Boroff did in Hicks, under the totality of circumstances test, I essentially consider all of the factors relevant to whether the Debtor can maintain herself and her dependents now and into the reasonably foreseeable future while repaying her educational debt. Hicks, 331 B.R. at 31. B. Debtor’s Past, Present and Future Income The record demonstrates that when the Debtor has sought employment, she has consistently been able to obtain employment. The Debtor was employed continuously from the time she completed her college degree to the time she returned to graduate school in 1993 in increasingly responsible engineering positions. Tr. 51-53. Since returning to the workforce in 2004, the Debtor has similarly been continuously and progressively employed in the health services industry. Interrogatory Answers, Pl.’s Ex. 7 at 3-4. Since August 2004, the Debtor has been employed with three different employers. At the Attleboro Center from August 2004 to August 2005, the Debtor earned approximately $37,000 annually, or $17.79 per hour. Tr. 6. At her position" }, { "docid": "14691871", "title": "", "text": "“minimal” standard of living; the likelihood that this inability will persist for a significant portion of the repayment period; and the existence of good faith efforts to repay the loans. Id. at 396. A facially different test is the Eighth Circuit’s totality-of-circumstances test, which would have courts consider the debt- or’s reasonably reliable future financial resources, his reasonably necessary living expenses, and “any other relevant facts.” See Long v. Educ. Credit Mgmt. Corp. (In re Long), 322 F.3d 549, 554 (8th Cir.2003). Appellant contends that this test does not include “good faith effort” under the “other relevant facts” rubric, although bankruptcy courts within the Eighth Circuit are not unanimous on this issue. She urges a “true totality of the circumstances test,” focusing solely on the ability of the debtor to maintain a minimal standard of living now and in “the foreseeable future” and still afford to make loan repayments. The bankruptcy judge, citing her opinion in Burkhead v. United States (In re Burkhead), 304 B.R. 560, 565 (Bankr.D.Mass. 2004), applied the totality approach but was of the view that courts essentially looked at the same factors under either test. She listed four relevant factors, including good faith efforts. The district judge noted the unadorned breadth of the statutory language, which he felt pointed to the totality test as “the default standard for all judging,” and found that the care and methodical approach of the bankruptcy judge was “proper employment of a ‘totality-of-the-circumstances’ test, which is another way of saying it was proper judging.” See 330 B.R. at 326-27. We see no need in this case to pronounce our views of a preferred method of identifying a case of “undue hardship.” The standards urged on us by the parties both require the debtor to demon- strate that her disability will prevent her from working for the foreseeable future. Appellant has a formidable task, for Congress has made the judgment that the general purpose of the Bankruptcy Code to give honest debtors a fresh start does not automatically apply to student loan debtors. Rather, the interest in ensuring the continued viability of" }, { "docid": "17544417", "title": "", "text": "other relevant factors, such as “Jes-person’s young age, good health, number of degrees, marketable skills, and lack of substantial obligations to dependents or mental or physical impairments,” supra Part III, establish that Jesperson does not represent the type of debtor experiencing undue hardship that Congress envisioned receiving the benefit of § 523(a)(8). Section 523(a)(8) states that a debtor’s student loan is not dischargeable “unless excepting such debt from discharge ... would impose an undue hardship on the debtor and the debtor’s dependents.” In evaluating whether a debtor’s student loans would impose an “undue hardship,” we apply the totality-of-the-circumstances test. Long v. Educ. Credit Mgmt. Corp. (In re Long), 322 F.3d 549, 553 (8th Cir. 2003). “[F]airness and equity require each undue hardship case to be examined on the unique facts and circumstances that surround the particular bankruptcy.” Id. at 554 (emphasis added). Bankruptcy courts should consider the following when evaluating the totality-of-the-circumstances: (1) the debtor’s past, present, and reasonably reliable future financial resources; (2) a calculation of the debtor’s and her dependent’s reasonable necessary living expenses; and (3) any other relevant facts and circumstances surrounding each particular bankruptcy case. Id. (emphasis added).The debtor has the burden of proving undue hardship. Reynolds v. Penn. Higher Educ. Assistance Agency (In re Reynolds), 425 F.3d 526, 529 (8th Cir.2005). Because the totality-of-the-circumstances test is “very broad,” “courts in the Eighth Circuit have looked to a number of facts and circumstances to assist them in making this determination.” McLaughlin v. U.S. Funds (In re McLaughlin), 359 B.R. 746, 750 (Bankr.W.D.Mo.2007). Such factors include: (1) total present and future incapacity to pay debts for reasons not within the control of the debtor; (2) whether the debtor has made a good faith effort to negotiate a deferment or forbearance of payment; (3) whether the hardship will be long-term; (4) whether the debtor has made payments on the student loan; (5) whether there is permanent or long-term disability of the debtor; (6) the ability of the debtor to obtain gainful employment in the area of the study; (7) whether the debtor has made a good faith effort" }, { "docid": "13175120", "title": "", "text": "Long), 322 F.3d 549, 554 (8th Cir.2003). Nash, 446 F.3d at 190. Although the First Circuit acknowledged the two approaches in Nash, it declined to adopt formally a particular test for determining undue hardship, and it remains an undecided issue in this circuit. See Nash, 446 F.3d at 190. In the First Decision, the bankruptcy court applied the totality of the circumstances test to determine whether excepting the Debtor’s student loan obligations from discharge would cause her undue hardship. The district court determined that the issue of the appropriate test was immaterial as the result would be the same under either test. On remand, the bankruptcy court again declined to endorse the Brunner test. On appeal, ECMC urges the Panel to formally adopt the so-called Brunner test. C. Adopting a Test As noted above, neither the plain language of § 523(a)(8) nor the First Circuit mandate a particular test for evaluating the dischargeability of student loans. The Panel has also declined to endorse a particular test. Most of the bankruptcy courts within the First Circuit have adopted the totality of the circumstances test over the Brunner test, although a few courts within this circuit have applied Brunner instead. To determine the appropriate test, we first examine the differences between the Brunner and the totality of circumstances approaches. As the Panel noted in In re Lorenz, the distinctions between the two tests are modest, with many overlapping considerations: The “totality of the circumstances” analysis requires a debtor to prove by a preponderance of evidence that (1) his past, present, and reasonably reliable future financial resources; (2) his and his dependents’ reasonably necessary living expenses; and (3) other relevant facts or circumstances unique to the case, prevent him from paying the student loans in question while still maintaining a minimal standard of living, even when aided by a discharge of other prepetition debts. Kopf, 245 B.R. at 739; see also Hicks v. Educ. Credit Mgmt. Corp. (In re Hicks), 331 B.R. 18, 31 (Bankr.D.Mass.2005) (distilling so-called totality of the circumstances test to “one simple question: Can the debtor now, and in the" }, { "docid": "4186982", "title": "", "text": "an evaluation of the debtor’s past, present, and reasonably reliable future financial resources; a calculation of the reasonable necessary living expenses of the debtor and her dependents; and any other circumstances unique to the particular bankruptcy case. Long, 322 F.3d at 554 (citing Andrews, 661 F.2d at 704 and Andresen v. Nebraska Student Loan Program, Inc. (In re Andresen), 232 B.R. 127, 140 (8th Cir. BAP 1999)). As the Eighth Circuit expressed in Long: In evaluating the totality-of-the-circumstances, our bankruptcy reviewing courts should consider: (1) the debtor’s past, present, and reasonably reliable future financial resources; (2) a calculation of the debtor’s and her dependent’s reasonable necessary living expenses; and (3) any other relevant facts and circumstances surrounding each particular bankruptcy case. Simply put, if the debtor’s reasonable future financial resources will sufficiently cover payment of the student loan debt — while still allowing for a minimal standard of living — then the debt should not be discharged. Certainly, this determination will require a special consideration of the debtor’s present employment and financial situation — including assets, expenses, and earnings — along with the prospect of future changes — positive or adverse — in the debtor’s financial position. 322 F.3d at 554-55 (citing Andresen, 232 B.R. at 141); Reynolds v. Penn. Higher Educ. Assistance Agency (In re Reynolds), 425 F.3d 526, 532 (8th Cir.2005). In applying the totality-of-the-circumstances test, courts have considered the following: (1) total present and future incapacity to pay debts for reasons not within the control of the debtor; (2) whether the debtor has made a good-faith effort to negotiate a deferment or forbearance of payment; (3) whether the hardship will be long-term; (4) whether the debtor has made payments on the student loan; (5) whether there is permanent or long-term disability of the debtor; (6) the abili ty of the debtor to obtain gainful employment in the area of the study; (7) whether the debtor has made a good-faith effort to maximize income and minimize expenses; (8) whether the dominant purpose of the bankruptcy petition was to discharge the student loan; and (9) the ratio of student" }, { "docid": "13175118", "title": "", "text": "A. The Burden of Proof Under § 523(a)(8), debtors are not permitted to discharge educational loans “unless excepting such debt from discharge ... would impose an undue hardship on the debtor and the debtor’s dependents.” 11 U.S.C. § 523(a)(8). The creditor bears the initial burden of establishing that the debt is of the type excepted from discharge under § 523(a)(8). Once the showing is made, the burden shifts to the debtor to prove that excepting the student loan debt from discharge will cause the debtor and her dependents “undue hardship.” Educ. Credit Mgmt. Corp. v. Savage (In re Savage), 311 B.R. 835 (1st Cir. BAP 2004); see also Smith v. Educ. Credit Mgmt. Corp. (In re Smith), 328 B.R. 605 (1st Cir. BAP 2005). The debtor bears the ultimate burden of proving undue hardship by a preponderance of the evidence. See Grogan v. Garner, 498 U.S. 279, 287, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991); Burkhead v. U.S. (In re Burkhead), 304 B.R. 560, 564 (Bankr.D.Mass. 2004). B. The Tests for Determining Undue Hardship The Bankruptcy Code does not define “undue hardship” and courts have struggled with its meaning. After several decades of case law interpreting this term, essentially two tests have emerged — the so-called Brunner test and the “totality of the circumstances” test. As the First Circuit has noted: ... [N]ine circuit courts of appeal [ ] have followed the Second Circuit’s test set forth in Brunner v. New York State Higher Educ. Servs. Corp., 831 F.2d 395 (2d Cir.1987) (per curiam). This is a tripartite test, requiring that the debtor show inability, at her current level of income and expenses, to maintain a “minimal” standard of living; the likelihood that this inability will persist for a significant portion of the repayment period; and the existence of good faith efforts to repay the loans. Id. at 396. A facially different test is the Eighth Circuit’s totality-of-circumstances test, which would have courts consider the debtor’s reasonably reliable future financial resources, his reasonably necessary living expenses, and “any other relevant facts.” See Long v. Educ. Credit Mgmt. Corp. (In re" }, { "docid": "2740104", "title": "", "text": "the debtor’s undue hardship showing is in the nature of an affirmative defense). There is no dispute that the guaranteed loan is an educational loan or that § 523(a)(8) applies. We are concerned only whether the bankruptcy court correctly concluded Lorenz proved undue hardship. 2. Determining “Undue Hardship”. The bankruptcy court applied the “totality of the circumstances” test. AES/ PHEAA argues on appeal that the bankruptcy court should have employed the so-called Brunner test. See Brunner v. New York State Higher Educ. Serv. Corp., 831 F.2d 395 (2d Cir.1987). However, AES/ PHEAA did not advance this argument at trial, where it addressed the “totality of the circumstances,” relying heavily on In re Bourque, 303 B.R. 548. Ordinarily, AES/PHEAA’s failure to raise the point below would constitute waiver and we would not address it. See Savage, 311 B.R. at 840 (citing Fleet Mortg. Group, Inc. v. Kaneb, 196 F.3d 265 (1st Cir.1999) (appellate court will not address issues raised for the first time on appeal)). Here, however, the question is not straightforward. The bankruptcy court ruled in the alternative, concluding that excepting the guaranteed loan from discharge would work an undue hardship under either test. We need not detour to confront the point, as we conclude that Lorenz’s showing was fundamentally, and fatally deficient, under either model. The “totality of the circumstances” analysis requires a debtor to prove by a preponderance of evidence that (1) his past, present, and reasonably reliable future financial resources; (2) his and his dependents’ reasonably necessary living expenses; and (3) other relevant facts or circumstances unique to the case, prevent him from paying the student loans in question while still maintaining a minimal standard of living, even when aided by a discharge of other pre-petition debts. Kopf, 245 B.R. at 739; see also Hicks v. Educ. Credit Mgmt. Corp. (In re Hicks), 331 B.R. 18, 31 (Bankr.D.Mass.2005) (distilling so-called totality of the circumstances test to “one simple question: Can the debtor now, and in the foreseeable future, maintain a reasonable, minimal standard of living for the debtor and the debtor’s dependents and still afford to make" }, { "docid": "18017771", "title": "", "text": "past, present, and reasonably reliable future financial resources; (2) her and her dependents’ reasonably necessary living expenses, and; (3) other relevant facts or circumstances unique to the case prevent her from paying the student loans in question while still maintaining a minimal standard of living, even when aided by a discharge of other pre-petition debts. See Kopf, 245 B.R. at 739. A. Past, Present and Reasonably Reliable Future Income. The debtor must show not only that her current income is insufficient to pay her student loans, but also that her prospects for increasing her income in the future are too limited to afford her sufficient resources to repay the student loans and provide herself and her dependents with a minimal (but fair) standard of living. See id. at 745; see also Burkhead v. United States (In re Burkhead), 304 B.R. 560, 566 (Bankr.D.Mass.2004); Bourque v. Educ. Credit Mgmt. Corp. (In re Bourque), 303 B.R. 548, 550 (Bankr.D.Mass.2003). Ms. Savage has not demonstrated that her current level of income and future prospects warrant discharge of her loans. Her present income may be insufficient to pay her student loans and still maintain precisely the standard of living she now has. But, as discussed below, we conclude it would enable her to repay the loans without undue hardship. Moreover, the record plainly establishes that her prospects for a steady increase in income over time are promising. She has been steadily employed at the same job and regularly receives annual raises. Nothing indicates change is in the wind. Moreover, Ms. Savage currently works 37)6 hours a week, leaving time for some part-time work (or longer hours at her present job), a possibility that will become more and more practical as her son grows older. B. Reasonable Necessary Living Expenses. To prove undue hardship for purposes of § 523(a)(8), a debtor must show that her necessary and reasonable expenses leave her with too little to afford repayment. The bankruptcy court found Ms. Savage’s expenses are “for the most part ... extremely reasonable.... This isn’t an example of any lavish lifestyle by any means.” App. at" }, { "docid": "15432405", "title": "", "text": "337 B.R. 423, 430-31 (1st Cir. BAP 2006). Under this approach the Court may consider all relevant evidence: the debtor’s income and expenses, the debtor’s health, age, education, number of dependents and other personal or family circumstances, the amount of the monthly payment required, the impact of the general discharge under Chapter 7, and the debtor’s ability to find a higher-paying job, move, or cut living expenses. See id. Under the totality of the circumstances approach, the debtor’s past efforts to repay are considered but are not necessarily dispositive. See Sanborn, 431 B.R. at 6. In sum the totality of the circumstances test rests on one question: “Can the debtor now, and in the foreseeable near future, maintain a reasonable, minimal standard of living for the debtor and the debtor’s dependents and still afford to make payments on the debtor’s student loans?” Bronsdon, 435 B.R. at 801, quoting Hicks v. Educ. Credit Mgmt. Corp. (In re Hicks), 331 B.R. 18, 32 (Bankr.D.Mass.2005). A debtor’s burden of proof is considerable. The First Circuit has stated that by requiring a showing of “undue hardship,” Congress decided that “the interest in ensuring the continued viability of the student loan program takes precedence” over the general purpose of the Bankruptcy Code to give debtors a fresh start. See Nash v. Conn. Student Loan Foundation (In re Nash), 446 F.3d 188, 191 (1st Cir.2006). Undue hardship is generally found only in “truly exceptional circumstances, such as illness or the existence of an unusually large number of dependents.” See id. at 797; Sanborn, 481 B.R. at 6. Applying the totality of the circumstances test to the facts at hand, I conclude that the Debtor has failed to carry her burden. Since beginning her professional career in 1991, the Debtor’s financial resources have increased. Throughout her career, she has proven resourceful in maximizing her earning potential. To supplement her salary at her first job, she successfully petitioned Dartmouth to allow her to see private clients in the evenings. She has proven willing and able to increase her income through independent contracting and additional training. She has become" }, { "docid": "13175122", "title": "", "text": "foreseeable future, maintain a reasonable, minimal standard of living for the debtor and the debtor’s dependents and still afford to make payments on the debtor’s student loans?”). Courts “should consider all relevant evidence — the debtor’s income and expenses, the debtor’s health, age, education, number of dependents and other personal or family circumstances, the amount of the monthly payment required, the impact of the general discharge under chapter 7 and the debtor’s ability to find a higher-paying job, move or cut living expenses.” Hicks, 331 B.R. at 31; see also Kelly, 312 B.R. at 206; Savage, 311 B.R. at 840; Bloch v. Windham Profls (In re Bloch), 257 B.R. 374, 378 (Bankr.D.Mass.2001); Kopf, 245 B.R. at 744. The Brunner test differs, albeit modestly. See Kopf, 245 B.R. at 731 (compar ing tests). Brunner requires a “three-part showing (1) that the debtor cannot, based on current income and expenses, maintain a ‘minimal’ standard of living for herself or her dependants if forced to repay the loans; (2) that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and (3) that the debt- or has made good faith efforts to repay the loans.” Brunner, 831 F.2d at 396.... One can see readily that insofar as income and expenses are concerned, the tests take converging tacks. The “totality test” looks to past, present, and future “financial resources” and “necessary living expenses” and whether, taken together with other factors, the debtor has the ability to repay while maintaining a minimal standard of living. Brunner asks the same question looking to “current” income and expenses, then considers whether circumstances inhibiting repayment will endure. In re Lorenz, 337 B.R. at 430-31. Although the two tests do not always diverge in function, they do in form. In re Hicks, 331 B.R. at 26. As the In re Hicks court noted: “While under the totality of the circumstances approach, the court may also consider ‘any additional facts and circumstances unique to the case’ that are relevant to the central inquiry (i.e., the debtor’s ability to maintain a" }, { "docid": "7676416", "title": "", "text": "(Bankr.N.D.Ohio 1981): [E]ach bankruptcy case involving a student loan must be examined on the facts and circumstances surrounding that par- . ticular bankruptcy for the Court to make a determination of “undue hardship.” The bankruptcy court must determine whether there would be anything left from the debtor’s estimated future income to enable the debtor to make some payment on his/her student loan without reducing what the debtor and his/her dependents need to maintain a minimal standard of living. Andrews v. S.D. Student Loan Assistance Corp., 661 F.2d 702, 704 (8th Cir.1981). After Andrews was decided, the Second Circuit adopted a different test in Brunner v. N.Y. State Higher Educ. Serv. Corp., 881 F.2d 395, 396 (2d Cir.1987), a three-step sequential analysis which has attracted a wide following. See Educ. Credit Mgmt. Corp. v. Polleys, 356 F.3d 1302, 1307 (10th Cir.2004) (collecting cases). However, in Long we rejected the Brunner test and reaffirmed our reliance on the Andrews totality of the circumstances test. 322 F.3d at 554. We explained, We prefer a less restrictive approach to the “undue hardship” inquiry. See Andrews, 661 F.2d at 704. We are convinced that requiring our bankruptcy courts to adhere to the strict parameters of a particular test would diminish the inherent discretion contained in § 523(a)(8)(B). Therefore, we continue-as we first did in Andrews-to embrace a totality-of-the-circumstances approach to the “undue hardship” inquiry. We believe that fairness and equity require each undue hardship case to be examined on the unique facts and circumstances that surround the particular bankruptcy. Id. We then summarized the totality of circumstances test as applied in this circuit: In evaluating the totality-of-the-circumstances, our bankruptcy reviewing courts should consider: (1) the debtor’s past, present, and reasonably reliable future financial resources; (2) a calculation of the debtor’s and her dependent’s reasonable necessary living expenses; and (3) any other relevant facts and circumstances surrounding each particular bankruptcy case. Simply put, if the debtor’s reasonable future financial resources will sufficiently cover payment of the student loan debt-while still allowing for a minimal standard of living-then the debt should not be discharged. Certainly, this determination" } ]

[ { "docid": "17906593", "title": "", "text": "final payment under the plan is due.” Although bankruptcy courts have been divided on this point, I followed In re Jenkins, Bkrtcy.N.D.Ill.1981, 14 B.R. 748, 750 and other decisions to the same effect. I was wrong. The only presently reported appellate decision treating this point is In re Taddeo, 2 Cir.1982, 685 F.2d 24. Taddeo dealt with a chapter 13 petition filed before, not after, a foreclosure judgment and I recognize that the dicta in that decision is not binding here. However, I am persuaded by the review of the legislative history and the policy considerations urged in that opinion. I am now convinced that: “In short, ‘curing a default’ in Chapter 11 means the same as it does in Chapter 7 or 13: the event of default is remedied and the consequences are nullified. A state law to the contrary must fall before the Bankruptcy Code.” At p. 29. Even if State law were controlling on this point, I am also convinced that in Florida a mortgage does not merge into a foreclosure decree. It subsists until it merges into the title certificate issued after the foreclosure sale. City of Miami Beach v. Smith, 5 Cir.1977, 551 F.2d 1370, 1374; United Companies Financial Corp. v. Brantley, Bkrtcy.N.D.Fla.1980, 6 B.R. 178, 189. Indeed, though the point is not presented here, I am convinced that the right to de-accelerate the mortgage lien, cure the default and reinstate the installment debt continues (at least in Florida) until the statutory right of redemption expires. § 45.031(3), Florida Statutes; Allstate Mortgage Corp. of Florida v. Strasser, Fla.1973, 286 So.2d 201, 203; 37 Fla.Jur.2d Mortgages, § 365. That occurs when the clerk files a certificate of title, ten days after the filing of the certificate of sale if no objections are filed. § 45.031(3), Florida Statutes. Based on the foregoing, the debtor’s motion for reconsideration is granted. The order of dismissal is vacated. Confirmation of the debtor’s chapter 13 plan will be considered at a hearing on April 13, 1983, at 2:00 p.m. in Courtroom 1406, 51 S.W. 1 Avenue, Miami, Florida. The debtor is" } ]

[ { "docid": "7731492", "title": "", "text": "re Thompson, 17 B.R. 748 (Bkrtcy.W.D.Mich.1982); In re Gooden, 21 B.R. 456 (Bkrtcy.N.D.Ga.1982); In re Ivory, 32 B.R. 788, 10 B.C.D. 1327 (Bkrtcy.D.Or.1983). Id. at 939-40 (footnotes omitted). The courts are, in particular, divided on the issue before this Court: whether there can be deceleration and reinstitution of a mortgage after entry of judgment of foreclosure but before sale. Compare In re re Acevedo, 26 B.R. 994 (E.D.N.Y.1982) (reinstitution and deceleration permitted); In re McSorley, 24 B.R. 795 (Bkrtcy.D.N.J.1982) (same); and In re Taylor, 21 B.R. 179 (Bkrtcy.W.D.Mo.1982) (same); with In re Clark, 32 B.R. 711 (D.C.W.D.Wis.1983) (reinstitution and deceleration not permitted); In re Mattocks, 15 B.R. 379 (Bkrtcy.E.D.N.Y.1981) (same); and In re Maiorino, 15 B.R. 254 (Bkrtcy.D.Conn.1981). The debtors have not made clear whether they seek “modification” of Ninth Ward’s judgment under section 1322(b)(2) or the “curing” of their default and maintenance of mortgage payments under sections 1322(b)(3) and (b)(5). For reasons which are set out below, debtors cannot prevail under any of those subsections. The section 1322(b)(2) argument is the easiest to dismiss. Section 1322(b)(2), unlike sections 1322(b)(3) and (b)(5), does not allow for the curing of a default. Section 1322(b)(2) does permit modification of secured claims, but any plan of modification must, under section 1322(c), provide for payments over a period of no longer than five years. Debtors’ proposed plan does not contemplate repayment of the entire judgment within the period of the plan but, instead, contemplates payment only of mortgage arrearages. Debtors’ plan is thus dependent upon a cure of their default and reinstatement of their mortgage, remedies not available under the terms of section 1322(b)(2). Sections 1322(b)(3) and (b)(5) have been the main focus of most courts in resolving cases involving Chapter 13 debtors. The leading case permitting cure and reinstatement is In re Taddeo, 685 F.2d 24 (2d Cir.1982). The Taddeo court held that the limitation against “modification” of mortgage liens under section 1322(b)(2) did not restrict a debtor’s right to “cure” a mortgage default under section 1322(b)(3) and (b)(5). Id. at 27-28. The Taddeo court explained: When Congress empowered Chapter 13 debtors to" }, { "docid": "12553643", "title": "", "text": "principle residence, may reinstate the mortgage, decelerate the indebtedness, and resume payments as the Ragsdales have proposed. This Court has visited the issue before. In re Crochen, No. 92-2210 (Bankr.N.D.Ala. June 10, 1992). In that case the Court ruled that a foreclosure sale is voidable and a debtor may set aside the sale and include a mortgage arrearage in the plan of reorganization and reinstate the mortgage payments according to the contract’s pre-de-fault terms. For the reasons set forth below, the Court sees no reason to retreat from that ruling. This issue has been widely addressed. Typically, the result is that the debtor will be denied the opportunity to retain his home if his bankruptcy petition is filed following some particular act by the creditor. In some cases, this act may be the acceleration of the debtor's mortgage and the demand of immediate payment of all sums owing. In a majority of the cases, the act that terminates the debtor’s right to reverse the effects of acceleration and propose a Chapter 13 plan that provides for retention of his home is the creditor’s filing for a judicial foreclosure of the mortgage. In other cases, the sale that follows the judicial foreclosure is the terminating event, while in other cases the lapse of the debtor’s rights of redemption prohibits reversal of the contractual acceleration. A summary of the cases in the judicial circuits shows the variety of treatment of a debtor’s mortgage in Chapter 13. First Circuit In re Tucker, 131 B.R. 245 (Bankr.D.Me. 1991) (debtor may cure default until the expiration of a period of redemption). Second Circuit In re Taddeo, 685 F.2d 24 (2d Cir.1982) (no expressed time limit on the debtor’s right to cure); In re Valente, 34 B.R. 804 (Bankr.D.Conn.1982) (cannot cure after foreclosure sale; bankruptcy courts cannot undo state court judgments); In re Garner, 13 B.R. 799 (Bankr.S.D.N.Y.1981) (may cure before foreclosure judgment; pre-Taddeo); In re Acevedo, 9 B.R. 852 (Bankr.E.D.N.Y.1981) (may cure after a foreclosure judgment), aff'd,, 26 B.R. 994 (E.D.N.Y.1982); In re Taddeo, 9 B.R. 299 (Bankr.E.D.N.Y.1981) (may cure before foreclosure sale). Third Circuit" }, { "docid": "21693694", "title": "", "text": "B.R. 104 (Bkrtcy.S.D.Fla.1983); In re Chambers, 27 B.R. 687 (Bkrtcy.S.D.Fla.1983); In re Taylor, 21 B.R. 179 (Bkrtcy.W.D.Mo. 1982); In re Thompson, 17 B.R. 748 (Bkrtcy.W.D.Mich.1982). 32 B.R. at 790. To the fourth group we add the following recent opinions by the Fifth and Seventh Circuits: Grubbs v. Houston First American Savings Association, 730 F.2d 236 (5th Cir.1984) (en banc) (holding that a debtor may cure a default after acceleration, but expressing no limit on the right); Matter of Clark, 738 F.2d 869 (7th Cir.1984) (holding that a debtor may cure a default after a judgment of foreclosure that does no more than judicially confirm the acceleration Under state law, but expressing no opinion whether the right to cure survives a sale or a judgment of foreclosure in states where the effect of the judgment is different). Most courts agree that section 1322(b)(5) allows the debtor to cure a default when the mortgagee has not yet accelerated the debt, see, e.g., In re Pearson, 10 B.R. at 193; In re Hartford, 7 B.R. 914 (Bankr.D. Me. 1981), and that the debtor may not reinstate the mortgage if the bankruptcy petition is filed after the state redemption period has expired, see, e.g., In re Ivory, 33 B.R. at 791; In re Thompson, 17 B.R. at 751. The legislative history of section 1322(b) is ambiguous about the scope of the right afforded the debtor to cure a mortgage default. To encourage consumer debtor rehabilitation rather than liquidation, Congress designed Chapter 13 of the Bankruptcy Code to provide greater relief than was available under the former Bankruptcy Act. H.R.Rep. No. 595, 95th Cong., 1st Sess. 116-17 (1977), reprinted in 1978 U.S. Code Cong. & Ad.News 5787, 5963, 6076-78. The House Report further explains the chapter’s general purpose: The purpose of chapter 13 is to enable an individual, under court supervision and protection, to develop and perform under a plan for the repayment of his debts over an extended period. In some cases, the plan will call for full repayment. In others, it may offer creditors a percentage of their claims in full settlement. During" }, { "docid": "8341239", "title": "", "text": "one creditor seeks a preference in payment to the detriment of the estate by a forced sale of assets. Hence, we are constrained to concur with those decisions which provide that the acceleration of the debt is merely part and parcel of the default that gave rise to the foreclosure suit in the state court. Section 1322(b)(5) is intended to permit a debtor to cure any default, including a precipitated acceleration therefrom. It does not seem logical to conclude that the consequence of curing a default does not effect a reinstatement of the mortgage contract and the debt, since the mortgage is only security for the debt. See In re Acevedo, 9 B.R. 852, 4 C.B.C.2d 178, B.L.D. ¶ 67967 (Bkrtcy.E.D.N.Y.1981); In re Sapp, 11 B.R. 188 (Bkrtcy.S.D.Ohio 1981); In re Rippe, 14 B.R. 367 (Bkrtcy.S.D.Fla.1981); In re Taddeo, 9 B.R. 299, 7 B.C.D. 422, 4 C.B.C.2d 185, BLD ¶ 68093 (Bkrtcy.E.D.N.Y.1981); and In re Davis, 16 B.R. 473 (D.Kan.1981). A reputable treatise on bankruptcy law draws a similar conclusion. See 5 Collier on Bankruptcy § 1322.01(3), (E) (15th Ed. 1981) which concludes, as follows: “The debtor may maintain the contract payments during the course of the Plan without acceleration by virtue of any pre-Petition default, by proposing to cure the default within a reasonable time. The debtor may avail himself of the provisions of § 1322(b)(5) even though the long term debt is secured only by a security interest in real property which is the principle residence of the debtor.” [emphasis added]. Other decisions interpreting § 1322(b)(5) implicitly support the same conclusion but do not reach the same result, on the rationale that the foreclosure proceedings had progressed to the point of being in judgment, treating the judgment rather than the debt secured by a mortgage itself as the basis for the creditors claim. It was concluded in those cases that the last payment on the obligation would be due after the final payment under the Plan is due. See In re Robertson, 4 B.R. 213, 6 B.C.D. 375, 2 C.B.C.2d 136 (Bkrtcy.D.Colo.1980); In re Canady, 9 B.R. 428," }, { "docid": "7731491", "title": "", "text": "even after the mortgagee has obtained a judgment on the accelerated mortgage note. In re Taddeo, 685 F.2d 24 (2d Cir.1982); In re Acevedo, 26 B.R. 994 (E.D.N.Y.1982); In re Mueller, 18 B.R. 851 (Bkrtcy.W.D. Ark.1982); In re Young, 22 B.R. 620 (Bkrtcy.N.D.Ill.1982); In re Hubbard, 23 B.R. 671 (Bkrtcy.S.D.Ohio 1982); In re McSorley, 24 B.R. 795 (Bkrtcy.N.J.1982); In re Tuchman, 29 B.R. 39 (Bkrtcy.S.D.N.Y.1983); In re Hardin, 16 B.R. 810 (Bkrtcy.N.D.Tex.1982); In re Taylor, 21 B.R. 179 (Bkrtcy.W.D.Mo.1982); In re Smith, 19 B.R. 592 (Bkrtcy.N.D.Ca.1982); In re McCann, 27 B.R. 678 (Bkrtcy.S.D.Ohio 1982). This seems to be a rapidly growing view and has been adopted by more appellate level courts than have any-of the other views. The fifth view is perhaps the most adventurous of all. It holds that deceleration and reinstitution are available even after the foreclosure sale, as long as the state redemption period has not expired by the time the debtor files his bankruptcy petition. See In re Chambers, 27 B.R. 687 (Bkrtcy.S.D.Fla.1983); In re Kokkinis, 22 B.R. 353 (Bkrtcy.N.D.Ill.1982); In re Thompson, 17 B.R. 748 (Bkrtcy.W.D.Mich.1982); In re Gooden, 21 B.R. 456 (Bkrtcy.N.D.Ga.1982); In re Ivory, 32 B.R. 788, 10 B.C.D. 1327 (Bkrtcy.D.Or.1983). Id. at 939-40 (footnotes omitted). The courts are, in particular, divided on the issue before this Court: whether there can be deceleration and reinstitution of a mortgage after entry of judgment of foreclosure but before sale. Compare In re re Acevedo, 26 B.R. 994 (E.D.N.Y.1982) (reinstitution and deceleration permitted); In re McSorley, 24 B.R. 795 (Bkrtcy.D.N.J.1982) (same); and In re Taylor, 21 B.R. 179 (Bkrtcy.W.D.Mo.1982) (same); with In re Clark, 32 B.R. 711 (D.C.W.D.Wis.1983) (reinstitution and deceleration not permitted); In re Mattocks, 15 B.R. 379 (Bkrtcy.E.D.N.Y.1981) (same); and In re Maiorino, 15 B.R. 254 (Bkrtcy.D.Conn.1981). The debtors have not made clear whether they seek “modification” of Ninth Ward’s judgment under section 1322(b)(2) or the “curing” of their default and maintenance of mortgage payments under sections 1322(b)(3) and (b)(5). For reasons which are set out below, debtors cannot prevail under any of those subsections. The section 1322(b)(2) argument is the easiest to dismiss." }, { "docid": "2129054", "title": "", "text": "S.D.Ohio 1982); In re McSorley, 24 B.R. 795 (Bkrtcy.N.J.1982); In re Tuchman, 29 B.R. 39 (Bkrtcy.S.D.N.Y.1983); In re Hardin, 16 B.R. 810 (Bkrtcy.N.D.Tex.1982); In re Taylor, 21 B.R. 179 (Bkrtcy.W.D.Mo.1982); In re Smith, 19 B.R. 592 (Bkrtcy.N.D.Ca.1982); In re McCann, 27 B.R. 678 (Bkrtcy.S.D.Ohio 1982). This seems to be a rapidly growing view and has been adopted by more appellate level courts than have any of the other views. The fifth view is perhaps the most adventurous of all. It holds that deceleration and reinstitution are available even after the foreclosure sale, as long as the state redemption period has not expired by the time the debtor files his bankruptcy petition. See In re Chambers, 27 B.R. 687 (Bkrtcy.S.D.Fla.1983); In re Kokkinis, 22 B.R. 353 (Bkrtcy.N.D.Ill.1982); In re Thompson, 17 B.R. 748 (Bkrtey.W.D.Mich.1982); In re Gooden, 21 B.R. 456 (Bkrtcy.N.D.Ga.1982); In re Ivory, 32 B.R. 788, 10 B.C.D. 1327 (Bkrtcy.D.Or.1983). Over all, it appears that the growing majority of courts are holding that deceleration is permissible, even after the mortgagee has reduced his claim to judgment. Applicable Statutes The decisions and arguments for and against deceleration have been based on various sections of the Bankruptcy Code. However, most seem to deal with the various subsections of 11 U.S.C. § 1322(b). As a starting point, it is important to note that § 1322(b)(2) prohibits the modification of the rights of a creditor whose only security is the real property comprising the debtor’s principal residence. Hence, any proposed mortgage deceleration must meet this statutory standard. However, many courts, including the Second Circuit Court of Appeals, have found ways around this provision. A number of cases have dealt with the rather general language of § 1322(b)(3). This section allows a debtor to “cure any default” through his Plan. A number of courts have held that this section allows the curing of default on the type of mortgages described by § 1322(b)(2). In re Taddeo, supra; In re Acevedo, supra; In re McSorley, supra; In re Chambers, supra. However, there are a few cases which have held that (b)(3) is not available to cure" }, { "docid": "7900737", "title": "", "text": "to its sale is that of a right of redemption under Section 9-506 of the Uniform Commercial Code. Utah Code Ann. § 70A-9-506 (Repl.1980). See In re Anderson, 29 B.R. 563, 564 (Bkrtcy.E.D.Va.1983). Under Section 9-506, the debtors have the right to redeem collateral that has been repossessed, provided (1) the creditor has not disposed of the collateral or contracted for its disposition under Section 9-504; (2) the creditor’s right to retain the collateral has not become fixed under Section 9-505(2); (3) the parties have not otherwise agreed in writing after the default; and (4) the debtors tender fulfillment of the secured obligation, plus the expenses incurred in repossessing the collateral. Utah Code Ann. § 70A-9-506, supra. A debt- or’s right to redeem is property of the estate. In re King, 14 B.R. 316, 317-18, 7 B.C.D. 530 (Bkrtcy.M.D.Tenn.1981); In re Brickel, 11 B.R. 353, 355, 7 B.C.D. 957 (Bkrtcy.D.Me.1981); In re Gunder, 8 B.R. 390, 393 (Bkrtcy.S.D.Ohio 1980); In re Williams, 6 B.R. 789, 6 B.C.D. 1219 (Bkrtcy.E.D.Mich.1980). Furthermore, Section 1322(b)(3) permits a Chapter 13 debtor to cure any default, and thereby negates the effect of acceleration clauses. In re Taddeo, 685 F.2d 24 (2d Cir.1982). See In re Anderson, supra, 29 B.R. at 565; In re Kokkinis, 22 B.R. 353, 355 (Bkrtcy.N.D.Ill., 1982). A turnover proceeding “is essentially a proceeding for restitution.” Maggio v. Zeitz, 333 U.S. 56, 63, 68 S.Ct. 401, 405, 92 L.Ed. 476 (1948). The Bankruptcy Court can order the turnover of property in which the debtor holds only a contingent possessory right, such as a right of redemption or the right to cure a default, as long as adequate protection can be afforded to the secured party. United States v. Whiting Pools, Inc., 674 F.2d 144, 155-56 (2d Cir.1982), aff'd 462 U.S. 198, 103 S.Ct. 2309, 76 L.Ed.2d 515, supra; Georgia Pacific Corp. v. Sigma Service Corp., 712 F.2d 962, 966-67 (5th Cir.1983); In re Sunrise Equipment and Development Corp., 24 B.R. 26, 27 (Bkrtcy.D.Ariz.1982); In re Alpa Corp., 11 B.R. 281, 289-90, 7 B.C.D. 791 (Bkrtcy.D.Utah 1981); Matter of Day Resource & Development" }, { "docid": "21693692", "title": "", "text": "cure the default and reinstate the terms of the mortgage after any of these events would violate the language of subsection (b)(2), which prohibits modification of the rights of holders of claims “secured only by a security interest in real property that is the debtor’s principal residence.” The courts disagree over whether and under what circumstances section 1322(b) allows a cure once a default on a mortgage has triggered acceleration of the debt, a judgment or a sale. The bankruptcy court in In re Ivory, 32 B.R. 788 (Bankr.D.Or. 1983), grouped the differing viewpoints into the following general categories: (1) Courts that hold that a debtor may not cure a default once a mortgage debt has been accelerated: In re Wilson, 11 B.R. 986 (Bkrtcy.S.D.N.Y.1981); Matter of LaPaglia, 8 B.R. 937 (Bkrtcy.E.D.N.Y. 1981); In re Allen, 17 B.R. 119, 8 B.C.D. 945 (Bkrtcy.N.D.Ohio 1981). (2) Courts that hold that a debtor may cure a default where the mortgage debt has been accelerated provided that no foreclosure judgment has been entered: Percy Wilson Mortgage & Finance Corp. v. McCurdy, 21 B.R. 535 (Bkrtcy.S.D.Ohio W.D.1982); In re Maiorino, 15 B.R. 254 (Bkrtcy.D.Conn.1981); In re Pearson, 10 B.R. 189 (Bkrtcy.E.D.N.Y. 1981). (3) Courts [that] hold that a debtor may cure a default where a state court judgment of foreclosure has been entered provided that no sale has taken place: In re Acevedo, 26 B.R. 994 (D.E.D.N.Y.1982); In re James, 20 B.R. 145, 9 B.C.D. 208 (Bkrtcy.E.D.Mich.1982); In re Brantley, 6 B.R. 178 (Bkrtcy.N.D.Fla. 1980). (4) Courts that place no express limitation on the debtor’s right to cure a default after acceleration: In re Taddeo, 685 F.2d 24 (2nd Cir.1982); In re Sapp, 11 B.R. 188 (Bkrtcy.S.D.Ohio E.D.1981); In re Davis, 16 B.R. 473 (D.Kan.1981). Or after a judgment has been entered: In re Young, 22 B.R. 620 (Bkrtey.N.D.Ill.E.D.1982); In re Breuer, 4 B.R. 499, 6 B.C.D. 136 (Bkrtcy.S.D.N.Y.1980). (5) Courts that hold that a debtor may cure a default where a foreclosure sale has been held provided that the debtor’s right of redemption under state law has not expired: In re Johnson, 29" }, { "docid": "2129053", "title": "", "text": "32 B.R. 711 (W.D.Wis.1983). The third approach likewise allows deceleration and reinstitution, but does not speak to what impact, if any, a judgment would have on the availability of this option. See In re Morrison, supra; In re Briggs, 25 B.R. 317 (Dist.Ct.N.N.D.1982); In re Davis, 16 B.R. 473 (D.Kan.1981); In re Cheeks, 24 B.R. 477 (Bkrtcy.M.D.Ala.1982); Matter of Wilder, 22 B.R. 294 (Bkrtcy.M.D.Ga.1982); In re Rippe, 14 B.R. 367 (Bkrtcy.S.D.Fla.1981); First Investment Co. v. Custer, 18 B.R. 842 (Bkrtcy.S.D. Ohio 1982); In re Sapp, 11 B.R. 188 (Bkrtcy.S.D.Ohio 1981); In re Beckman, 9 B.R. 193 (Bkrtcy.N.D.Iowa 1981). This view is supported by several District Courts and would seem to be the overwhelming majority view. The fourth view holds that deceleration and reinstitution are possible even after the mortgagee has obtained a judgment on the accelerated mortgage note. In re Taddeo, 685 F.2d 24 (2d Cir.1982); In re Acevedo, 26 B.R. 994 (Dist.Ct.E.D.N.Y.1982); In re Mueller, 18 B.R. 851 (Bkrtcy.W.D.Ark.1982); In re Young, 22 B.R. 620 (Bkrtcy.N.D.Ill. 1982); In re Hubbard, 23 B.R. 671 (Bkrtcy. S.D.Ohio 1982); In re McSorley, 24 B.R. 795 (Bkrtcy.N.J.1982); In re Tuchman, 29 B.R. 39 (Bkrtcy.S.D.N.Y.1983); In re Hardin, 16 B.R. 810 (Bkrtcy.N.D.Tex.1982); In re Taylor, 21 B.R. 179 (Bkrtcy.W.D.Mo.1982); In re Smith, 19 B.R. 592 (Bkrtcy.N.D.Ca.1982); In re McCann, 27 B.R. 678 (Bkrtcy.S.D.Ohio 1982). This seems to be a rapidly growing view and has been adopted by more appellate level courts than have any of the other views. The fifth view is perhaps the most adventurous of all. It holds that deceleration and reinstitution are available even after the foreclosure sale, as long as the state redemption period has not expired by the time the debtor files his bankruptcy petition. See In re Chambers, 27 B.R. 687 (Bkrtcy.S.D.Fla.1983); In re Kokkinis, 22 B.R. 353 (Bkrtcy.N.D.Ill.1982); In re Thompson, 17 B.R. 748 (Bkrtey.W.D.Mich.1982); In re Gooden, 21 B.R. 456 (Bkrtcy.N.D.Ga.1982); In re Ivory, 32 B.R. 788, 10 B.C.D. 1327 (Bkrtcy.D.Or.1983). Over all, it appears that the growing majority of courts are holding that deceleration is permissible, even after the mortgagee has reduced his claim to" }, { "docid": "1363604", "title": "", "text": "debtor may cure a default where a foreclosure sale has been held provided that the debtor’s right of redemption under state law has not expired: In re Johnson, 29 B.R. 104 (Bkrtcy.S.D.Fla.1983); In re Chambers, 27 B.R. 687 (Bkrtcy.S.D.Fla.1983); In re Taylor, 21 B.R. 179 (Bkrtcy.W.D.Mo.1982); In re Thompson, 17 B.R. 748 (Bkrtcy.W.D.Mich.1982). Most courts agree that the debtor may use § 1322(b)(5) to cure a default where the mortgagee has not yet accelerated his debt. See e.g. In re Pearson, 10 B.R. 189, 193 (Bkrtcy.E.D.N.Y.1981); In re Hartford, 7 B.R. 914 (Bkrtcy.D.Me.1981). This court has considered the question of post default cure in two cases. In In re Stone, 27 B.R. 8 (Bkrtcy.D.Or.1982) the court held that a chapter 13 debtor could cure a default and reinstate the periodic payment provision of a land sale contract where the creditor had declared the debt accelerated prior to the chapter 13 filing. In In re Seidel/In re Girgis, 31 B.R. 262 (Bkrtcy.D.Or.1983), the court held that a debtor could not cure a default by extending the final maturity date provided in an agreement. In these latter cases, the debtors had failed to make the final balloon payments which had become due under their contracts prior to their filing under chapter 13. Neither of these cases addresses an attempt by a debtor to cure a default on a mortgage where the mortgaged property has already been sold. However, consonant with the court’s earlier decisions is the court’s view that a debtor may cure a default after a foreclosure sale has been held provided that at the time of filing, the debtor still retains an interest in the sold property. Under Oregon law, the purchaser at a foreclosure sale receives a certificate of sale containing a description of the property sold, the price paid, and a provision regarding redemption. ORS 23.510. The certificate of sale evidences the purchaser’s right to possession of the premises. ORS 23.590. Upon expiration of the one year redemption period, ORS 23.560, and delivery of the sheriff’s deed, ORS 23.600, the purchaser will secure legal title to the property." }, { "docid": "1363602", "title": "", "text": "unsecured claims; (3) provide for the curing or waiving of any default; (5) notwithstanding paragraph (2) of this subsection, provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim or secured claim on which the last payment is due after the date on which the final payment under the plan is due; (10) include any other appropriate provision not inconsistent with this title.” The case law under 11 U.S.C. § 1322(b) indicates that the courts are not in agreement over whether and under what circumstances a cure can be allowed once a default on a mortgage debt has triggered acceleration of the debt, a judgment or a sale. The differences in viewpoint may be generally categorized as follows: (1) Courts that hold that a debtor may not cure a default once a mortgage debt has been accelerated: In re Wilson, 11 B.R. 986 (Bkrtcy.S.D.N.Y.1981); Matter of LaPaglia, 8 B.R. 937 (Bkrtcy.E.D.N.Y.1981); In re Allen, 17 B.R. 119, 8 BCD 945 (Bkrtcy.N.D.Ohio 1981). (2) Courts that hold that a debtor may cure a default where the mortgage debt has been accelerated provided that no foreclosure judgment has been entered: Percy Wilson Mortgage & Finance Corp. v. McCurdy, 21 B.R. 535 (Bkrtcy.S.D.Ohio W.D.1982); In re Maiorino, 15 B.R. 254 (Bkrtcy.D.Conn.1981); In re Pearson, 10 B.R. 189 (Bkrtcy.E.D.N.Y.1981). (3) Courts hold that a debtor may cure a default where a state court judgment of foreclosure has been entered provided that no sale has taken place: In re Acevedo, 26 B.R. 994 (D.E.D.N.Y.1982); In re James, 20 B.R. 145, 9 BCD 208 (Bkrtcy.E.D.Mich.1982); In re Brantley, 6 B.R. 178 (Bkrtcy.N.D.Fla.1980). (4) Courts that place no express limitation on the debtor’s right to cure a default after acceleration: In re Taddeo, 685 F.2d 24 (2nd Cir.1982); In re Sapp, 11 B.R. 188 (Bkrtcy.S.D.Ohio E.D.1981); In re Davis, 16 B.R. 473 (D.Kan.1981). Or after a judgment has been entered: In re Young, 22 B.R. 620 (Bkrtcy.N.D.Ill.E.D.1982); In re Breuer, 4 B.R. 499, 6 BCD 136 (Bkrtcy.S.D.N.Y.1980). (5) Courts that hold that a" }, { "docid": "7731490", "title": "", "text": "In re Britton, 35 B.R. 373 (N.D.Ind.1982). While this is a more widely held view than the per se prohibition espoused by the first group, it is still the minority view and has had only one recent convert. In re Clark, C.C.H. Bankr.Serv. If 69,341, 32 B.R. 711 [(W.D.Wis.1983)]. The third approach likewise allows deceleration and reinstitution, but does not speak to what impact, if any, a judgment would have on the availability of this option. See In re Morrison, [35 B.R. 996 (S.D.Ohio 1983)], supra; In re Briggs, 25 B.R. 317 (D.N.D.1982); In re Davis, 16 B.R. 473 (Dist.Ct.D.Kan.1981); In re Cheeks, 24 B.R. 477 (Bkrtcy.M.D.Ala. 1982); Matter of Wilder, 22 B.R. 294 (Bkrtcy.M.D.Ga.1982); In re Rippe, 14 B.R. 367 (Bkrtcy.S.D.Fla.1981); First Investment Co. v. Custer, 18 B.R. 842 (Bkrtcy.S.D.Ohio 1982); In re Sapp, 11 B.R. 188 (Bkrtcy.S.D.Ohio 1981); In re Beckman, 9 B.R. 193 (Bkrtcy.N.D.Iowa 1981). This view is supported by several District Courts and would seem to be the overwhelming majority view. The fourth view holds that deceleration and reinstitution are possible even after the mortgagee has obtained a judgment on the accelerated mortgage note. In re Taddeo, 685 F.2d 24 (2d Cir.1982); In re Acevedo, 26 B.R. 994 (E.D.N.Y.1982); In re Mueller, 18 B.R. 851 (Bkrtcy.W.D. Ark.1982); In re Young, 22 B.R. 620 (Bkrtcy.N.D.Ill.1982); In re Hubbard, 23 B.R. 671 (Bkrtcy.S.D.Ohio 1982); In re McSorley, 24 B.R. 795 (Bkrtcy.N.J.1982); In re Tuchman, 29 B.R. 39 (Bkrtcy.S.D.N.Y.1983); In re Hardin, 16 B.R. 810 (Bkrtcy.N.D.Tex.1982); In re Taylor, 21 B.R. 179 (Bkrtcy.W.D.Mo.1982); In re Smith, 19 B.R. 592 (Bkrtcy.N.D.Ca.1982); In re McCann, 27 B.R. 678 (Bkrtcy.S.D.Ohio 1982). This seems to be a rapidly growing view and has been adopted by more appellate level courts than have any-of the other views. The fifth view is perhaps the most adventurous of all. It holds that deceleration and reinstitution are available even after the foreclosure sale, as long as the state redemption period has not expired by the time the debtor files his bankruptcy petition. See In re Chambers, 27 B.R. 687 (Bkrtcy.S.D.Fla.1983); In re Kokkinis, 22 B.R. 353 (Bkrtcy.N.D.Ill.1982); In" }, { "docid": "10241005", "title": "", "text": "in real property that is the debtor’s principal residence, or of holders of unsecured claims; (3) provide for the curing or waiving of any default; ... (5) notwithstanding paragraph (2) of this subsection, provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim or secured claim on which the last payment is due after the date on which the final payment under the plan is due; ... The bankruptcy courts throughout the country are in substantial disagreement over the interpretation to be given this statute. As noted in In re Pearson, 10 B.R. 189, 7 B.C.D. 567 (Bkrtcy.E.D.N.Y.1981), there appears to be unanimity that the right to cure exists until there has been an acceleration of the indebtedness and that it ceases once the property has been sold at foreclosure. Beyond that the cases may be divided into three general groups; (1) those which deny the right to cure an acceleration. See In re La Paglia, 8 B.R. 937 (Bkrtcy.E.D.N.Y.1981) (contractual acceleration); In re Wilson, 11 B.R. 986 (Bkrtcy.S.D.N.Y.1981) (judgment); In re Williams, supra (contractual acceleration); In re Coleman, 5 B.R. 812 (U.S.D.Ct.Ky.1980) (judgment); (2) those which grant the right to cure an acceleration. See In re Taddeo, 9 B.R. 299 (Bkrtcy.E.D.N.Y.1981) aff’d. 15 B.R. 273 (U.S.D.Ct.E.D.N.Y.1981) (judgment); In re Rippe, 14 B.R. 367 (Bkrtcy.S.D.Fla.1981) (contractual acceleration); In re Sapp, 11 B.R. 188 (Bkrtcy.S.D.Ohio 1981) (contractual acceleration); In re Acevedo, 9 B.R. 852 (Bkrtcy.E.D.N.Y.1981) (judgment); In re Beckman, 9 B.R. 193, 7 B.C.D. 361 (Bkrtcy.N.D.Iowa 1981) (contractual acceleration); United Companies Financial Corp. v. Brantley, 6 B.R. 178, 6 B.C.D. 932 (Bkrtcy.N.D.Fla.1980) (judgment); In re Soderlund, 7 B.R. 44 (Bkrtcy.S.D.Ohio 1980) (contractual acceleration); In re Breuer, 4 B.R. 499 (Bkrtcy.S.D.N.Y.1980) (judgment); and (3) a third more limited group which deny the right to cure where a judicial decree has resulted in acceleration but do not reach the question of whether the debt- or may cure defaults in contractual accelerations. In re Pearson, supra; In re Canady, 9 B.R. 428, 7 B.C.D. 749 (Bkrtcy.D.Conn.1981); In re Jenkins, 14" }, { "docid": "18560341", "title": "", "text": "by Borrower, this Deed of Trust and the obligations secured hereby shall remain in full force and effect as if no acceleration had occurred. According to the terms of the parties’ agreement, to cure and reinstate, the debtors must also pay Deseret Federal’s reasonable attorneys’ fees. Section 1322 (b)(5) allows debtors to cure their failure to perform obligations on long term debt. In re Fontaine, 27 B.R. 614, 10 B.C.D. 204, 8 C.B.C.2d 1293 (Bkrtcy.App.Pan. 9th Cir.1982). However, the case law has not been in agreement as to the limits of debtors’ power to cure a default. Some courts have held that where a mortgage by its terms permits the creditor to accelerate the debt before filing, Section 1322(b)(5) does not apply. This view is predicated upon the principal that since acceleration caused the obligation to become immediately due, the maturity date of the last payment does not extend past the date for the last payment under the plan. Therefore, the entire amount must be paid under the plan. To hold otherwise, would modify the mortgagee’s rights in violation of subsection (b)(2). See, e.g., In re Williams, 11 B.R. 504, 7 B.C.D. 946, 4 B.C.D.2d 1028, (Bkrtcy.S.D.Tex.1981); In re LaPaglia, 8 B.R. 937, 7 B.C.D. 333, 3 C.B.C.2d 717, (Bkrtcy.E.D.N.Y.1981). But the majority of cases have held that the power to “cure” contained in Section 1322(b)(5) includes the power to decelerate the accelerated mortgage debt and reinstate the original mortgage payment schedule. See, e.g., In re Taddeo, 685 F.2d 24 (2nd Cir.1982); In re Acevedo, 26 B.R. 994, 4 C.B.C.2d 178 (Bkrtcy.E.D.N.Y.1982); In re Briggs, 25 B.R. 317 (Bkrtcy.D.N.D.1982); In re Davis, 16 B.R. 473, 5 C.B.C.2d 606 (Bkrtcy.D.Kan.1981). In almost every Chapter 13 ease filed by a homeowner debtor, the mortgage debt has been accelerated. By prohibiting a debtor from curing defaults on accelerated loans, the congressional intent and rehabilitative purpose behind Chapter 13 would be defeated. The curing of defaults under this section is not considered a modification of the mortgage lienholder’s rights. In re Taddeo, 685 F.2d at 27. This Court adopts the majority position and allows" }, { "docid": "16834229", "title": "", "text": "9 B.C.D. at 559) Finally and most importantly to the instant case, the Second Circuit has ruled, (mortgagee) “Di Pierro’s argument reduces in the end to an assertion that because she can accelerate her mortgage under state law, the Taddeos can cure only as provided by state law. This interpretation of Section 1322(b) would leave the debtor with fewer rights under the new Bankruptcy Code than under the old Bankruptcy Act of 1898. Defaulting mortgagees would forfeit their right to cure even before the start of foreclosure proceedings, before they have hired lawyers and therefore before they knew anything about their rights under Chapter 13. Such a result would render the remedy in Section 1322(b) unavailable to all but a select number of debtors. See In re Thompson, 17 B.R. 748, 752-53 (Bkrtcy.W.D.Mich.1982). Such a result would be totally at odds with the ‘overriding rehabilitative purposes of Chapter 13.’ In re Davis, 15 B.R. 22, 24 (Bkrtcy.D.Kan.), aff’d, 16 B.R. 473 (D.C.Kan.1981).” (Id. at 29, 9 B.C.D. at 561). Various Bankruptcy Court decisions have been reached permitting the reinstatement and cure of a mortgage, even after judicial sale, upon the timely filing of a Chapter 13 Plan. See In Re Grayling Taylor, 21 B.R. 179, 9 B.C.D. 399, 399-400, (Bkrtcy.W.D.Mo., 1982); In Re Gary Thompson, 17 B.R. 748, 751 (Bkrtcy.W.D.Mich., 1982); In Re Kokkinis, 22 B.R. 353, 355 (Bkrtcy.N.D.Ill., 1982). This Court is in accord with the rationale of these cases. The Court finds and does so rule that the language of Section 1322(b)(5) expressly provides for, “the curing of any default within a reasonable time and maintenance of payments while the case is pending on any secured or unsecured claim.” (Emphasis added). Until such time as Congress restricts or modifies Section 1322(b)(5), the plain and unambiguous language of the Statute must govern the rights of the parties herein. Therefore, this Court finds and does so order that in all respects the Debtor’s Chapter 13 Plan, filed on February 7, 1983, meets all the requirements under Bankruptcy Code Section 1325; accordingly, it is ORDERED that the Chapter 13 Plan of" }, { "docid": "12553644", "title": "", "text": "for retention of his home is the creditor’s filing for a judicial foreclosure of the mortgage. In other cases, the sale that follows the judicial foreclosure is the terminating event, while in other cases the lapse of the debtor’s rights of redemption prohibits reversal of the contractual acceleration. A summary of the cases in the judicial circuits shows the variety of treatment of a debtor’s mortgage in Chapter 13. First Circuit In re Tucker, 131 B.R. 245 (Bankr.D.Me. 1991) (debtor may cure default until the expiration of a period of redemption). Second Circuit In re Taddeo, 685 F.2d 24 (2d Cir.1982) (no expressed time limit on the debtor’s right to cure); In re Valente, 34 B.R. 804 (Bankr.D.Conn.1982) (cannot cure after foreclosure sale; bankruptcy courts cannot undo state court judgments); In re Garner, 13 B.R. 799 (Bankr.S.D.N.Y.1981) (may cure before foreclosure judgment; pre-Taddeo); In re Acevedo, 9 B.R. 852 (Bankr.E.D.N.Y.1981) (may cure after a foreclosure judgment), aff'd,, 26 B.R. 994 (E.D.N.Y.1982); In re Taddeo, 9 B.R. 299 (Bankr.E.D.N.Y.1981) (may cure before foreclosure sale). Third Circuit In re Roach, 824 F.2d 1370 (3d Cir.1987) (cannot cure after foreclosure judgment); In re Epps, 110 B.R. 691 (E.D.Pa.1990) (may cure before foreclosure judgment); In re Rivera, 108 B.R. 553 (Bankr.E.D.Pa.1988) (may cure before foreclosure sale if entire balance is paid); In re Lee, 86 B.R. 350 (Bankr.D.N.J.1988) (may not cure after foreclosure judgment); In re Brown, 75 B.R. 1009 (Bankr.E.D.Pa.1987) (may not cure after foreclosure sale); In re Shelly, 38 B.R. 1000 (D.Del.1984) (may not cure after foreclosure judgment); In re Morris, 73 B.R. 358 (Bankr.D.N.J.1987) (same); In re Rouse, 48 B.R. 236 (Bankr.E.D.Pa.1985) (foreclosure sale cuts off debtor’s rights in property). Fourth Circuit In re DiCello, 80 B.R. 769 (Bankr. E.D.N.C.1987) (cure not allowed after foreclosure sale); In re Chitwood, 54 B.R. 396 (Bankr.W.D.Va.1985) (cure may occur if foreclosure deed has not been delivered to purchaser); In re Stokes, 39 B.R. 336 (Bankr.E.D.Va.1984) (no expressed time limit on debtor’s right to cure); In re Wallace, 31 B.R. 64 (Bankr.D.Md.1983) (cure not allowed after foreclosure sale). Fifth Circuit Grubbs v. Houston First Sav." }, { "docid": "1363603", "title": "", "text": "1981). (2) Courts that hold that a debtor may cure a default where the mortgage debt has been accelerated provided that no foreclosure judgment has been entered: Percy Wilson Mortgage & Finance Corp. v. McCurdy, 21 B.R. 535 (Bkrtcy.S.D.Ohio W.D.1982); In re Maiorino, 15 B.R. 254 (Bkrtcy.D.Conn.1981); In re Pearson, 10 B.R. 189 (Bkrtcy.E.D.N.Y.1981). (3) Courts hold that a debtor may cure a default where a state court judgment of foreclosure has been entered provided that no sale has taken place: In re Acevedo, 26 B.R. 994 (D.E.D.N.Y.1982); In re James, 20 B.R. 145, 9 BCD 208 (Bkrtcy.E.D.Mich.1982); In re Brantley, 6 B.R. 178 (Bkrtcy.N.D.Fla.1980). (4) Courts that place no express limitation on the debtor’s right to cure a default after acceleration: In re Taddeo, 685 F.2d 24 (2nd Cir.1982); In re Sapp, 11 B.R. 188 (Bkrtcy.S.D.Ohio E.D.1981); In re Davis, 16 B.R. 473 (D.Kan.1981). Or after a judgment has been entered: In re Young, 22 B.R. 620 (Bkrtcy.N.D.Ill.E.D.1982); In re Breuer, 4 B.R. 499, 6 BCD 136 (Bkrtcy.S.D.N.Y.1980). (5) Courts that hold that a debtor may cure a default where a foreclosure sale has been held provided that the debtor’s right of redemption under state law has not expired: In re Johnson, 29 B.R. 104 (Bkrtcy.S.D.Fla.1983); In re Chambers, 27 B.R. 687 (Bkrtcy.S.D.Fla.1983); In re Taylor, 21 B.R. 179 (Bkrtcy.W.D.Mo.1982); In re Thompson, 17 B.R. 748 (Bkrtcy.W.D.Mich.1982). Most courts agree that the debtor may use § 1322(b)(5) to cure a default where the mortgagee has not yet accelerated his debt. See e.g. In re Pearson, 10 B.R. 189, 193 (Bkrtcy.E.D.N.Y.1981); In re Hartford, 7 B.R. 914 (Bkrtcy.D.Me.1981). This court has considered the question of post default cure in two cases. In In re Stone, 27 B.R. 8 (Bkrtcy.D.Or.1982) the court held that a chapter 13 debtor could cure a default and reinstate the periodic payment provision of a land sale contract where the creditor had declared the debt accelerated prior to the chapter 13 filing. In In re Seidel/In re Girgis, 31 B.R. 262 (Bkrtcy.D.Or.1983), the court held that a debtor could not cure a default by extending the" }, { "docid": "10241006", "title": "", "text": "acceleration); In re Wilson, 11 B.R. 986 (Bkrtcy.S.D.N.Y.1981) (judgment); In re Williams, supra (contractual acceleration); In re Coleman, 5 B.R. 812 (U.S.D.Ct.Ky.1980) (judgment); (2) those which grant the right to cure an acceleration. See In re Taddeo, 9 B.R. 299 (Bkrtcy.E.D.N.Y.1981) aff’d. 15 B.R. 273 (U.S.D.Ct.E.D.N.Y.1981) (judgment); In re Rippe, 14 B.R. 367 (Bkrtcy.S.D.Fla.1981) (contractual acceleration); In re Sapp, 11 B.R. 188 (Bkrtcy.S.D.Ohio 1981) (contractual acceleration); In re Acevedo, 9 B.R. 852 (Bkrtcy.E.D.N.Y.1981) (judgment); In re Beckman, 9 B.R. 193, 7 B.C.D. 361 (Bkrtcy.N.D.Iowa 1981) (contractual acceleration); United Companies Financial Corp. v. Brantley, 6 B.R. 178, 6 B.C.D. 932 (Bkrtcy.N.D.Fla.1980) (judgment); In re Soderlund, 7 B.R. 44 (Bkrtcy.S.D.Ohio 1980) (contractual acceleration); In re Breuer, 4 B.R. 499 (Bkrtcy.S.D.N.Y.1980) (judgment); and (3) a third more limited group which deny the right to cure where a judicial decree has resulted in acceleration but do not reach the question of whether the debt- or may cure defaults in contractual accelerations. In re Pearson, supra; In re Canady, 9 B.R. 428, 7 B.C.D. 749 (Bkrtcy.D.Conn.1981); In re Jenkins, 14 B.R. 748 (Bkrtcy.N.D.Ill.1981); In re Maiorino, 15 B.R. 254 (Bkrtcy.D.Conn.1981). The question presented is one of statutory interpretation. Interestingly, the leading cases of the three different views come from three different Bankruptcy Judges all in the Eastern District of New York. The courts in group one have focused on the language of subsection (b)(5) and interpreted it to limit the right to cure to instances where the last payment due on the underlying debt is due after the final payment under the plan is due. They reason that acceleration of the debt has created a lump sum claim due immediately under state law and therefore it is not eligible for treatment under (b)(5). Those courts in group two arrive at their conclusions allowing de-acceleration through various reasoning. One leading case looks at the entire statutory scheme of Chapter 13 to arrive at the conclusion that Congress enacted liberal Chapter 13 provisions to encourage debtors to propose repayment plans and retain assets they might forfeit under a Chapter 7 proceeding. If the Chapter 13 debtor cannot" }, { "docid": "16834228", "title": "", "text": "addressed by the Second Circuit Court of Appeal in the case of In Re Taddeo, 685 F.2d 24, 9 B.C.D. 556 (2nd Circuit, 1982). The facts of the Taddeo ease differ somewhat from the present case. In Taddeo, the mortgagee had accelerated the balance of the mortgage under State law, but had not obtained a final judgment of foreclosure and sale. The Second Circuit, in a well reasoned opinion, tracked the rights of a Chapter 13 debtor under Bankruptcy Code Section 1322(b). The Court found that, “When Congress empowered Chapter 13 debtors to ‘cure defaults,’ we think Congress intended to allow mortgagors to ‘de-accelerate’ their mortgages and reinstate its original payment terms.” (Id. at 26, 9 B.C.D. at 558). The Second Circuit further found that, “... the power to ‘cure any default’ granted in Section 1322(b)(3) and (b)(5) is not limited by the ban against ‘modifying’ home mortgages in Section 1322(b)(2) because we do not read ‘curing defaults’ under (b)(3) or ‘curing and maintaining payments’ under (b)(5) to be modifications of claims.” (Id. at 27, 9 B.C.D. at 559) Finally and most importantly to the instant case, the Second Circuit has ruled, (mortgagee) “Di Pierro’s argument reduces in the end to an assertion that because she can accelerate her mortgage under state law, the Taddeos can cure only as provided by state law. This interpretation of Section 1322(b) would leave the debtor with fewer rights under the new Bankruptcy Code than under the old Bankruptcy Act of 1898. Defaulting mortgagees would forfeit their right to cure even before the start of foreclosure proceedings, before they have hired lawyers and therefore before they knew anything about their rights under Chapter 13. Such a result would render the remedy in Section 1322(b) unavailable to all but a select number of debtors. See In re Thompson, 17 B.R. 748, 752-53 (Bkrtcy.W.D.Mich.1982). Such a result would be totally at odds with the ‘overriding rehabilitative purposes of Chapter 13.’ In re Davis, 15 B.R. 22, 24 (Bkrtcy.D.Kan.), aff’d, 16 B.R. 473 (D.C.Kan.1981).” (Id. at 29, 9 B.C.D. at 561). Various Bankruptcy Court decisions have been" }, { "docid": "21693693", "title": "", "text": "Corp. v. McCurdy, 21 B.R. 535 (Bkrtcy.S.D.Ohio W.D.1982); In re Maiorino, 15 B.R. 254 (Bkrtcy.D.Conn.1981); In re Pearson, 10 B.R. 189 (Bkrtcy.E.D.N.Y. 1981). (3) Courts [that] hold that a debtor may cure a default where a state court judgment of foreclosure has been entered provided that no sale has taken place: In re Acevedo, 26 B.R. 994 (D.E.D.N.Y.1982); In re James, 20 B.R. 145, 9 B.C.D. 208 (Bkrtcy.E.D.Mich.1982); In re Brantley, 6 B.R. 178 (Bkrtcy.N.D.Fla. 1980). (4) Courts that place no express limitation on the debtor’s right to cure a default after acceleration: In re Taddeo, 685 F.2d 24 (2nd Cir.1982); In re Sapp, 11 B.R. 188 (Bkrtcy.S.D.Ohio E.D.1981); In re Davis, 16 B.R. 473 (D.Kan.1981). Or after a judgment has been entered: In re Young, 22 B.R. 620 (Bkrtey.N.D.Ill.E.D.1982); In re Breuer, 4 B.R. 499, 6 B.C.D. 136 (Bkrtcy.S.D.N.Y.1980). (5) Courts that hold that a debtor may cure a default where a foreclosure sale has been held provided that the debtor’s right of redemption under state law has not expired: In re Johnson, 29 B.R. 104 (Bkrtcy.S.D.Fla.1983); In re Chambers, 27 B.R. 687 (Bkrtcy.S.D.Fla.1983); In re Taylor, 21 B.R. 179 (Bkrtcy.W.D.Mo. 1982); In re Thompson, 17 B.R. 748 (Bkrtcy.W.D.Mich.1982). 32 B.R. at 790. To the fourth group we add the following recent opinions by the Fifth and Seventh Circuits: Grubbs v. Houston First American Savings Association, 730 F.2d 236 (5th Cir.1984) (en banc) (holding that a debtor may cure a default after acceleration, but expressing no limit on the right); Matter of Clark, 738 F.2d 869 (7th Cir.1984) (holding that a debtor may cure a default after a judgment of foreclosure that does no more than judicially confirm the acceleration Under state law, but expressing no opinion whether the right to cure survives a sale or a judgment of foreclosure in states where the effect of the judgment is different). Most courts agree that section 1322(b)(5) allows the debtor to cure a default when the mortgagee has not yet accelerated the debt, see, e.g., In re Pearson, 10 B.R. at 193; In re Hartford, 7 B.R. 914 (Bankr.D. Me." } ]

[ { "docid": "14174404", "title": "", "text": "this case. The language of the statute involved in Coffee-Rich is different from the language used in the FDPA. In Coffee-Rich, the key determination under the statute was whether the product in question was an “imitation” of another food product. Here, the statute requires that a product containing dairy and non-dairy ingredients be an “imitation or semblance of any dairy product.” Thus, the FDPA contains the additional words “or semblance.” We believe the use of the words “or semblance” broadens the meaning of the definition of a filled dairy product beyond that prohibited by the statute in question in Coffee-Rich. In Coffee-Rich, the Court found that Webster’s Dictionary defined imitation as “That which is made or produced as a copy; an artificial likeness; a counterfeit; simulating something superior ...” 192 Kan. at 435, 388 P.2d 582. Funk & Wagnall’s Standard Dictionary defines semblance as “1. A mere show without reality; pretense. 2. Outward appearance. 3. A likeness or resemblance.” The Court in Coffee-Rich recognized the difference between imitation and semblance when they stated: “The word “imitation” imparts more than mere resemblance or similitude.” 192 Kan. at 437, 388 P.2d 582. This distinction was also recognized in Coffee-Rich, Inc. v. Commissioner of Public Health, 348 Mass. 414, 204 N.E.2d 281, 285 (1965), where the court stated: We are aware of the usual connotations of the word “imitation” which are elaborately expounded by the plaintiff and which might have persuaded courts in other jurisdictions to hold Coffee-Rich or products like it as outside the statutory meanings of the word. See Coffee-Rich, Inc. v. Kansas State Bd. of Health, 192 Kan. 431, 437-438, 388 P.2d 582; Dairy Queen of Wis. Inc. v. McDowell, 260 Wis. 471, 476-477, 51 N.W.2d 34, 52 N.W.2d 791. But see, United States v. 651 Cases, More or Less, of Chocolate Chil-Zert, D.C., 114 F.Supp. 430, 432-433. However, our statute speaks not simply of “imitation,” but of “imitation or semblance’’ (emphasis supplied). We are thus concerned, as we were in Aeration [Processes, Inc. v. Commissioner of Public Health, 346 Mass. 546, 194 N.E.2d 838 (1963)], with actual or apparent" } ]

[ { "docid": "14174409", "title": "", "text": "decision is enlightening. The Supreme Court noted the stated purposes of the FDPA contained in K.S.A. 65-726 but also found perhaps another unwritten goal of the FDPA: One nonstated objective may be the economic protectionist aspect of the act which many consider as legislation to promote and protect the dairy industry. The fact that the industry does have an economic interest in the preservation of the restrictions imposed by the FDPA is borne out by the filing of an amici brief by Associated Milk Producers, Inc., and Mid-America Dairymen, Inc., cooperative marketing associations formed to market the milk and milk products of their member producers. 232 Kan. at 593, 659 P.2d 785. In resolving the issue before it, the Court stated: Can it be said that Imitation resembles genuine dairy products so closely that it lends itself readily to substitution for or confusion with such dairy products and in many cases cannot be distinguished from genuine dairy products by the ordinary consumer? Can it be said the sale, etc. of Imitation creates a condition conducive to substitution, confusion, deception, and fraud and a condition which if permitted to exist tends to interfere with the orderly and fair marketing of foods essential to the well-being of the people of this state? K.S.A. 65-726. We think both questions must be answered in the negative. To hold otherwise is to say that the Kansas consumer is unable to intelligently identify the product he is purchasing or to assess its value and make price and nutritional distinctions even when the product is clearly labeled as being an imitation of the real thing and even though the label clearly discloses the ingredients of the product and its nutritional value. The very statutes that the defendant seeks to rely upon belie any such finding. The exceptions for chocolate-flavored products and oleomargarine clearly recognize the ability of the consumer to recognize and properly identify the product. Very few products come to mind which are so designed and marketed to compete with another product as oleomargarine. It is sold in the marketplace from the same refrigerated food departments" }, { "docid": "19725714", "title": "", "text": "individually approved by the agency prior to shipment in interstate commerce and that challenges to USDA labeling decisions to be made through individual adjudications. See 21 U.S.C. §§ 607(d) & (e); 21 U.S.C. §§ 457(c) & (d). Thus, it appears to me that the USDA’s adoption of the FDA’s definition of “imitation” is merely a statement of general policy that is not procedurally invalid on the grounds that there was no formal rulemaking. See also 5 U.S.C. § 553(b)(3)(A); Noel v„ Chapman, 508 F.2d 1023 (2d Cir.), cert. denied, 423 U.S. 824, 96 S.Ct. 37, 46 L.Ed.2d 40 (1975); Continental Oil Co. v. Burns, 317 F.Supp. 194 (D.Del.1970); K. Davis, Administrative Law Treatise §§ 7:4 & 7:5 (2d ed. 1979). Even if I were to find the federal regulation invalid, the preemption provisions alone appear to preclude state regulation of meat and poultry food products containing imitation cheese. New York’s regulations requiring the term imitation on all labels are “in addition to” the federal standard and are thus, expressly preempted. Besides his challenge to the procedural validity of the regulation, the Commissioner raises a question as to the substantive validity of the definition of imitation as adopted by the FDA. I turn to this argument in the following section in addressing preemption under the FDCA. B. The Federal Food Drug and Cosmetic Act. (1) The Preemptive Effect of the Federal Regulations The regulatory scheme promulgated under the FDCA likewise preempts the labeling of food products which resemble or substitute for cheese or which contain cheese substitutes. The Commissioner, however, argues that the FDCA does not preempt New York’s statute because, unlike the FMIA and the PPIA, the FDCA contains neither explicit labeling provisions applicable to artificial cheese nor an express preemption provision. In support, the Commissioner relies on Corn Products Refining Co. v. Eddy, 249 U.S. 427, 39 S.Ct. 325, 63 L.Ed. 689 (1919), in which the Supreme Court held that, absent federal action, the state retains its right to provide for adequate safeguards against deception in the sale of food products. The Commissioner’s argument, however, ignores the preemptive effect" }, { "docid": "16721402", "title": "", "text": "which the milkfat has been removed or casein, natural milk protein extracted from milk. The altered milk or casein is then combined with vegetable oil, which substitutes for milkfat. This type of alternative cheese is lower in calories and cholesterol than real cheese. It sells at prices fifty to sixty percent lower than real cheese. The other type of alternative cheese is chemically similar to real cheese but is made wholly or in part with substitute dairy products. This is presumably even less expensive to manufacture than the former. Vitamins and minerals may be added to raise the nutritional level of alternative cheese. Record of Administrative Rulemaking Proceedings in the Adoption of Imitation Cheese Labeling Regulations (before the New York Department of Agriculture and Markets), Record Doc. # 6 at 152-60. Alleging that New York’s imitation cheese law was in conflict with federal labeling requirements and with the Commerce Clause, GMA commenced this litigation with a complaint requesting injunctive and declarative relief against defendants-appellants New York Department of Agriculture and Markets and the department’s Commissioner, Joseph Gerace (collectively New York). New York counterclaimed and included as additional defendants the United States Department of Agriculture (USDA); the United States Department of Health and Human Services (HHS), the bureaucratic parent of the Food and Drug Administration (FDA); and the respective department secretaries. The counterclaim sought to have 21 C.F.R. § 101.3 (1984), the federal regulation that defines the term “imitation” for purposes of food package labeling, declared invalid. The text of New York’s section 63, enacted in 1982, is set out in the margin. 23Brief-ly, it requires that alternative cheese products feature labels that display prominently the descriptive term “imitation.” It also directs that anyone who sells prepared foods containing cheese alternatives, whether for carry out or for consumption on the premises, must display a sign that discloses in three inch letters those foods that contain “imitation cheese.” Further, it provides that restaurant menus must append the words “contains imitation cheese” to the item designation of any offering containing alternative cheese. And, finally, alternative cheese products available for use by customers on" }, { "docid": "19725726", "title": "", "text": "a traditional food. See In Re: Castleberry’s Food Co., FMIA No. 36 (USDA 1981). Moreover, the FDA’s definition preserves the notion of inferiority. The imitation standard merely defines inferiority in terms of a product’s nutritional content and requires that a product which is nutritionally inferior to the food it resembles be labeled imitation. Nutritionally equivalent products may only be labeled imitation if the product is inferi- or to the traditional food for some other reason. The agency’s abandonment of taste, smell and appearance as the test of inferiority in favor of a nutritional equivalency standard because the former test was too subjective is well within the discretion granted to it by Congress. See Weinberger v. Hynson, Wescott & Dunning, Inc., 412 U.S. 609, 93 S.Ct. 2469, 37 L.Ed.2d 207 (1973); CIBA-Geigy Corp. v. Richardson, 446 F.2d 466, 468 (2d Cir.1971). Furthermore, Congress appears to be satisfied with the FDA’s standard for imitation because, although it has twice amended the FDCA misbranding provisions since the regulations were issued, Pub.L. 94-278 (1976) (adding § 343(a)(1) and (2)); Pub.L. 95-203 (1978) (adding §§ 343(o) & (p)), Con gress has not acted to amend FDA’s imitation standard. See United States v. Rutherford, 442 U.S. 544, 554, 99 S.Ct. 2470, 2476, 61 L.Ed.2d 68 (1978) (that Congress has not acted to correct any misperception of its statutory objectives on an issue of public importance weighs in favor of deference to the agency’s construction). The FDA’s regulations defining “imitation” represent a carefully considered effort to construe a statutory term not defined by Congress. The notice of proposed rulemaking published in 1973 stated that the term must be defined in light of its common understanding and must take into account recent advances in the industry which have developed food substitutes that are not inferior to the products for which they substitute. 38 Fed.Reg. 2138 (Jan. 19, 1973). The agency recognized that applying the term “imitation” to nutritionally equivalent or superior foods would be misleading to the consumer because traditional notions of the term suggest inferiority. Id. In August of 1983, after a notice and comment period, the" }, { "docid": "19725722", "title": "", "text": "2138 (Jan. 19, 1973); accord, 38 Fed.Reg. 20702 (Aug. 2, 1973). The FDA has expressly rejected the Commissioner’s per se application of the term “imitation” to all food substitutes because the term connotes inferiority and would thereby discourage the development of nutritionally superior products in contravention of Congressional intent in passing the FDCA. 38 Fed.Reg. 2138 (January 18, 1973). Moreover, the FDA found that the indiscriminate use of “imitation” on all foods leads to consumer confusion which the FDCA was designed to prevent. Thus, the state regulation interferes with the “accomplishment and execution of the full purposes and objectives” of the agency’s regulations. See Ray v. Atlantic Richfield Co., 435 U.S. 151, 158, 98 S.Ct. 988, 994, 55 L.Ed.2d 179 (1977) citing Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941). Under these circumstances, where the state regulations directly conflict with federal law and in fact, stand as an obstacle to the accomplishment of the purpose of the federal law, the state regulations are preempted by the federal regulatory scheme. (2) Validity of the Federal Definition of Imitation The Commissioner’s primary argument in support of the state regulations is that the FDA and the USDA are not enforcing the respective statutes as Congress intended. None of the pertinent federal statutes define the term “imitation.” The Commissioner argues, however, that judicial precedent construing the term requires the federal agencies to adopt a definition which comports with the term’s ordinary and plain meaning. This, defendant contends, is precisely what New York has done in requiring all artificial cheese products that resemble traditional cheese in taste, smell, texture and appearance to be labeled imitation. Because the agencies have ignored this precedent, the Commissioner argues that the FDA’s definition of imitation is contrary to the FDCA and is invalid. In Federation of Homemakers v. Schmidt, 539 F.2d 740 (D.C.Cir.1976), the District of Columbia Circuit Court of Appeals deferred to the expertise of the FDA in promulgating its definition of imitation and found that the regulation which takes into account only nutritional inferiority is “well within the zone of" }, { "docid": "16721408", "title": "", "text": "the parties agreed and the district judge found that there were no unresolved material issues of fact. 581 F.Supp. at 661. The judge therefore deemed summary judgment as to GMA’s motion for preliminary and permanent in-junctive relief appropriate. Id. Accordingly, the court held that New York’s labeling requirements as applied to alternative cheese were preempted by the FDCA because the federal requirements, as applied in compliance with the FDA’s definition of imitation, and the state requirements were in actual conflict. Further, it held that the state labeling requirements as applied to meat and poultry products containing alternative cheese were preempted by the FMIA and the PPIA because the USDA’s adoption of the FDA’s definition of imitation created actual conflict between the state and federal schemes and, also, because of the express preemption language in the federal statutes. Finally, the district court held that the sign, menu and container provisions were invalid because they placed an undue burden on interstate commerce in violation of the Commerce Clause. On appeal, New York challenges all three of the district court’s conclusions. It argues that the state labeling provisions are not preempted by the FDCA because the federal regulation defining imitation violates the meaning and purpose of the FDCA and is therefore invalid. Invalidation of the regulation, of course, would vitiate the actual conflict between the state and federal schemes. New York also maintains that even if the definition is valid under the FDCA, the USDA’s adoption of the definition was procedurally defective. Thus, New York reasons, the state statute is not in conflict with either the FMIA or the PPIA. Further, New York claims that the requirements of the state statute fall outside the reach of the preemption provisions of the FMIA and the PPIA. And finally, New York contends that the sign, menu and container provisions do not violate the Commerce Clause. Discussion I. Federal Preemption A. Generally The preemption doctrine is rooted in the Supremacy Clause of the United States Constitution, Art. VI, cl. 2. Its application compels judicial divination of congressional intent. Preemption is mandated in two general contexts: when" }, { "docid": "14174402", "title": "", "text": "consumer, and any physical resemblance of the product to a known dairy product. Plaintiff relies upon Coffee-Rich, Inc. v. Kansas State Board of Health, 192 Kan. 431, 388 P.2d 582 (1964) for support of its argument on the “imitation or semblance” issue. Plaintiff contends that this phrase should be construed as it was in Coffee-Rich. A thorough review of Coffee-Rich demonstrates the flaws in plaintiff’s argument. In Coffee-Rich, the Kansas Supreme Court faced the issue of whether Coffee-Rich, a non-dairy coffee enricher and whitener, was an imitation of milk, half and half or cream and thus in violation of a Kansas statute providing that a food is misbranded if it is an imitation of another food and does not bear a label containing the word “imitation” preceding the name of the food imitated. The court concluded that Coffee-Rich was not an imitation of milk, cream or half and half. Rather, it found that Coffee-Rich was a new and different food product having its own unique characteristics. Concerning the issue of whether Coffee-Rich was an imitation of another food, the Court stated: We reach the unescapable conclusion that Coffee-Rich is not an imitation of cream or half-and-half and that it is a new and distinct food product having characteristics unique unto itself. Coffee-Rich is no more an imitation of cows’ cream, half-and-half, or any other dairy product than nylon is an imitation of silk, saccharin an imitation of sugar, or Crisco an imitation of lard. Those products, and Coffee-Rich, are separate, distinct, individual products developed as a result of modern scientific and technical advances and inventions. They are products sui generis. (Midget Products, Inc. v. Jacobsen, supra [140 Cal.App.2d 517, 295 P.2d 542 (1956)].) 192 Kan. at 438, 388 P.2d 582. Relying on Coffee-Rich, plaintiff argues that its new products are sui generis in that they have been developed as a result of modern scientific and technical advances and inventions. Plaintiff asserts that there is no such food item as a “genuine” frozen whipped cream available for purchase by the consumer. We do not find Coffee-Rich persuasive under the circumstances of" }, { "docid": "16721403", "title": "", "text": "Joseph Gerace (collectively New York). New York counterclaimed and included as additional defendants the United States Department of Agriculture (USDA); the United States Department of Health and Human Services (HHS), the bureaucratic parent of the Food and Drug Administration (FDA); and the respective department secretaries. The counterclaim sought to have 21 C.F.R. § 101.3 (1984), the federal regulation that defines the term “imitation” for purposes of food package labeling, declared invalid. The text of New York’s section 63, enacted in 1982, is set out in the margin. 23Brief-ly, it requires that alternative cheese products feature labels that display prominently the descriptive term “imitation.” It also directs that anyone who sells prepared foods containing cheese alternatives, whether for carry out or for consumption on the premises, must display a sign that discloses in three inch letters those foods that contain “imitation cheese.” Further, it provides that restaurant menus must append the words “contains imitation cheese” to the item designation of any offering containing alternative cheese. And, finally, alternative cheese products available for use by customers on the premises — as, for example, something resembling grated par-mesan — must be conspicuously labeled as “imitation cheese.” Section 63 does not define imitation. The regulations promulgated pursuant to the statute define “imitation cheese” as any food simulating “cheese” as described or standardized by regulation but failing to meet that description or standard. N.Y. Admin.Code tit. 1, § 18.1(c). Neither the statute nor any of its regulations is concerned with nutritional values. The federal scheme implicated here, which establishes the requisite information content of package labels for foods shipped in interstate commerce, involves three federal statutes and two federal agencies. Food labeling generally is governed on the federal level by the Federal Food, Drug, and Cosmetic Act (FDCA), 21 U.S.C. § 301 et seq. (1982), and its regulations, which come under the administrative aegis of the FDA. The FDCA does not contain any express preemption language. The labeling of meat and poultry products shipped in interstate commerce is specifically controlled by the Federal Meat Inspection Act (FMIA), 21 U.S.C. § 601 et seq. (1982), and" }, { "docid": "19725719", "title": "", "text": "Cir.1966) (the court, in dicta, notes that the FDCA does not preempt state regulation), cert. denied, 385 U.S. 1036, 87 S.Ct. 776, 17 L.Ed.2d 683 (1967). (b) Actual Conflict In my view, however, the state regulations are preempted because they are in conflict with the federal regulations. In Ray v. Atlantic Richfield Co., 435 U.S. 151, 158, 98 S.Ct. 988, 994, 55 L.Ed.2d 179 (1978), the Supreme Court explained that: A conflict will be found “where compliance with both federal and state regulations is a physical impossibility Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143 [83 S.Ct. 1210, 1217-1218, 10 L.Ed.2d 248, 98 S.Ct. 988, 994, 55 L.Ed.2d 179] (1963), or where the state “law stands as an obstacle to the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U.S. 52, 67 [61 S.Ct. 399, 404, 85 L.Ed. 581] (1941); Jones v. Rath Packing Co., supra, [430 U.S.] at 526, 540-541 [97 S.Ct. at 1310, 1317]. Accord, De Canas v. Bica, 424 U.S. 351, 363 [96 S.Ct. 933, 940, 47 L.Ed.2d 43] (1976). The New York regulations require that all cheese substitutes or food containing cheese substitutes be labeled “imitation” even though the FDA would require that only “nutritionally inferior” products be labeled with the term. The FDA expressly found that labeling all substitutes as imitation is misleading and confusing to consum ers. 38 Fed.Reg. 2138 (Jan. 19, 1973). Instead, the federal regulations require nutritional equivalent products to be labeled by a common or descriptive term, e.g., mozzarella cheese substitute. The New York standard as applied to nutritionally equivalent or superior products is contrary to the federal standard and products labeled as such would be deemed misbranded under the federal statute. See 21 U.S.C. § 434(c); 21 F.F.R. § 101.3(e); Affidavit of Robert Hibbert, supra at 117 & 8; Affidavit of Donald Houston, supra, at 118. Thus, if a manufacturer complies with the New York statute, the manufacturer would, at the same time, violate the federal regulations and would therefore be subject to sanctions under the federal statute for misbranding. In short, compliance with" }, { "docid": "19725706", "title": "", "text": "participation of individual members in the lawsuit,” Hunt, 432 U.S. at 343, 97 S.Ct. at 2441, the individual members themselves are not indispensable parties. Under the Hunt standard, therefore, GMA has standing to assert the rights of its members in contesting the labeling provisions of the New York statute. Further, GMA —as the representative of manufacturers and distributors of food products— is a proper party to press a challenge to the sign and menu posting requirements of the New York statute even though those provisions apply only to food service establishments. Uncontroverted affidavits submitted by GMA fully support a finding that it’s members will suffer direct and immediate harm in the form of lost sales as the result of the sign and menu posting requirements of the New York statute. Affidavit of Thomas Brennan, District Manager of Industrial Products, Schreiber Foods, Inc. sworn to on January 12, 1984; Affidavit of George W. Cawman, Vice President of Marketing, Schreiber Food, Inc. sworn to on December 13, 1983; Affidavit of Olindo DiFrancesco, President, Olindo’s Food, Inc. sworn to on January 17, 1984. As indicated by the affidavit of Thomas Brennan, supra, the likely consequence of the sign and menu posting requirements is that food service establishments will purchase only natural cheese products in order to avoid compliance with the statute and the stigma associated with the term “imitation.” I find therefore that under the Hunt standard, GMA also has standing to challenge the sign and menu posting requirements of Section 63. PREEMPTION Both the FDA and the USDA agree that the sign and menu posting requirements of the New York statute are not preempted by the FDCA, FMIA or the PPIA. GMA’s challenge to those provisions under the Commerce Clause will be addressed in a later section. The more difficult matter raised by the New York Imitation Cheese Statute is whether the labeling regulations are preempted by the respective federal statutes under the Supremacy Clause of the United States Constitution. The Commissioner argues that the federal regulations govern only the labeling of imitation cheese and do not extend to the labeling of" }, { "docid": "19725727", "title": "", "text": "Pub.L. 95-203 (1978) (adding §§ 343(o) & (p)), Con gress has not acted to amend FDA’s imitation standard. See United States v. Rutherford, 442 U.S. 544, 554, 99 S.Ct. 2470, 2476, 61 L.Ed.2d 68 (1978) (that Congress has not acted to correct any misperception of its statutory objectives on an issue of public importance weighs in favor of deference to the agency’s construction). The FDA’s regulations defining “imitation” represent a carefully considered effort to construe a statutory term not defined by Congress. The notice of proposed rulemaking published in 1973 stated that the term must be defined in light of its common understanding and must take into account recent advances in the industry which have developed food substitutes that are not inferior to the products for which they substitute. 38 Fed.Reg. 2138 (Jan. 19, 1973). The agency recognized that applying the term “imitation” to nutritionally equivalent or superior foods would be misleading to the consumer because traditional notions of the term suggest inferiority. Id. In August of 1983, after a notice and comment period, the FDA reaffirmed its existing definition of “imitation,” 48 Fed.Reg. 37665 (Aug. 19, 1983), and noted that consumer recent surveys supported a finding that the term “imitation” connotes an inferior product. Id. at 37665-66. As the Court stated in Homemakers, “the new regulation successfully reconciles the need to alert the public to inferior products with the proscription in subsection 343(a) against false or misleading labels.” Federation of Homemakers v. Schmidt, 539 F.2d 740, 743 (D.C.Cir.1976). In arguing that the Court in Homemakers improperly deferred to the agency’s expertise, defendants urge me to follow Swift & Co., Inc. v. Walkley, 369 F.Supp. 1198 (S.D.N.Y.1973) (Weinfeld, J.); In Swift, the court denied a motion by a manufacturer of imitation frankfurters to enjoin the state from requiring a meat product bearing a USDA approved label to be labeled “imitation frankfurter.” Judge Weinfeld did not address the FDA’s recently issued “nutritionally inferior” standard for imitation food. Instead, the court reasoned that the USDA’s admitted disregard of the statute did not prevent the state from exercising its concurrent jurisdiction to enforce" }, { "docid": "14174403", "title": "", "text": "of another food, the Court stated: We reach the unescapable conclusion that Coffee-Rich is not an imitation of cream or half-and-half and that it is a new and distinct food product having characteristics unique unto itself. Coffee-Rich is no more an imitation of cows’ cream, half-and-half, or any other dairy product than nylon is an imitation of silk, saccharin an imitation of sugar, or Crisco an imitation of lard. Those products, and Coffee-Rich, are separate, distinct, individual products developed as a result of modern scientific and technical advances and inventions. They are products sui generis. (Midget Products, Inc. v. Jacobsen, supra [140 Cal.App.2d 517, 295 P.2d 542 (1956)].) 192 Kan. at 438, 388 P.2d 582. Relying on Coffee-Rich, plaintiff argues that its new products are sui generis in that they have been developed as a result of modern scientific and technical advances and inventions. Plaintiff asserts that there is no such food item as a “genuine” frozen whipped cream available for purchase by the consumer. We do not find Coffee-Rich persuasive under the circumstances of this case. The language of the statute involved in Coffee-Rich is different from the language used in the FDPA. In Coffee-Rich, the key determination under the statute was whether the product in question was an “imitation” of another food product. Here, the statute requires that a product containing dairy and non-dairy ingredients be an “imitation or semblance of any dairy product.” Thus, the FDPA contains the additional words “or semblance.” We believe the use of the words “or semblance” broadens the meaning of the definition of a filled dairy product beyond that prohibited by the statute in question in Coffee-Rich. In Coffee-Rich, the Court found that Webster’s Dictionary defined imitation as “That which is made or produced as a copy; an artificial likeness; a counterfeit; simulating something superior ...” 192 Kan. at 435, 388 P.2d 582. Funk & Wagnall’s Standard Dictionary defines semblance as “1. A mere show without reality; pretense. 2. Outward appearance. 3. A likeness or resemblance.” The Court in Coffee-Rich recognized the difference between imitation and semblance when they stated: “The word" }, { "docid": "19725698", "title": "", "text": "MEMORANDUM DECISION KEVIN THOMAS DUFFY, District Judge. Plaintiff Grocery Manufacturers of America (“GMA”) has filed a complaint seeking injunctive and declaratory relief against the New York State Department of Agriculture and Markets (“Department”) and Joseph Gerace, Commissioner the (“Commissioner”) of the Department. GMA claims, inter alia, that existing federal statutes and regulations governing the labeling of imitation foods including the labeling of imitation cheese products preempts a recently enacted New York statute, N.Y.Agric. & Mkts. Law § 63 (McKinney Supp.1983), and its implementing regulations, 1 NYCRR Part 18. The federal regulations require only that nutritionally inferior products be labeled imitation. The New York statute, on the other hand, requires that all products that resemble or are intended to substitute for traditional or standardized cheese products— whether nutritionally inferior, superior, or equivalent — be labeled imitation. GMA claims that this alleged intrusion into a federally regulated field violates the Due Process, Commerce, Equal Protection and Supremacy Clauses of the United States Constitution and the Due Process and Equal Protection Clauses of the New York Constitution. Plaintiff also seeks relief under 42 U.S.C. § 1983 and requests attorneys fees. The matter is presently before me on plaintiffs motion for a preliminary injunction. The parties agree and I find that there are no unresolved material issues of fact. Summary judgment as to plaintiff’s motion for a preliminary and permanent injunction is therefore appropriate. See Fed.R.Civ.P. 56. To evaluate plaintiff’s arguments, I turn first to an in depth description of the relevant statutes and regulations. BACKGROUND The labeling of all food products shipped in interstate commerce is regulated generally by the Federal Food, Drug and Cosmetic Act (“FDCA”), 21 U.S.C. § 301 et seq., and its implementing regulations promulgated by the FDA. 21 C.F.R. § Part 100, et seq. The Act requires that the label of a food bear its “common or usual name ... if any there be,” 21 U.S.C. § 343(i), and prohibits the sale of a food under the name of another food. 21 U.S.C. § 343(b). The FDCA further provides that a food which is an imitation of another food" }, { "docid": "16721406", "title": "", "text": "21 U.S.C. § 343(c). The FDCA does not define imitation; that task was accomplished by regulation in 1973. An imitation food is defined as a food which “is a substitute for and resembles another food but is nutritionally inferi- or to that food.” 21 C.F.R. § 101.3(e)(1). Nutritional inferiority is determined by comparing the percentages of so-called “essential nutrients” in the substitute to those in the food for which it substitutes. 21 C.F.R. § 101.3(e)(4). The essential nutrients are protein and the nineteen vitamins and minerals for which the federal government has established recommended daily allowances (U.S. RDAs). Id.; § 101.-9(c)(7)(iv). Basically, if the substitute contains less of any essential nutrient present to a measurable degree in the food substituted for, the substitute must be labeled with the word “imitation.” A nutritionally equivalent or superior substitute food would be misbranded under federal law if it was labeled with the term “imitation.” Such foods must be identified by an appropriate common or usual name or, if none exists, a descriptive term. The fact that such foods are substitute foods would thus be evident from the foods’ labels, albeit less so than if the word “imitation” was used. The FMIA and the PPIA contain mis-branding provisions essentially identical to the FDCA’s. Compare 21 U.S.C. § 453(h) (PPIA) and § 601(n) (FMIA) with 21 U.S.C. § 343 (FDCA). Unlike the FDCA, both the PPIA and the FMIA, to prevent misbrand-ing, require that all proposed labels be reviewed and approved by USDA agents prior to use. 21 U.S.C. § 457(c) & (d) (PPIA); § 607(d) & (e) (FMIA). Neither the text of nor the regulations under either the FMIA or the PPIA define imitation. However, the USDA avers that it has adopted the FDA’s definition. Thus federal labeling requirements for alternative cheese products and for meat and poultry products containing cheese alternatives are uniform. If the product is nutritionally inferior to the food it resembles, it must be labeled “imitation.” If, however, it is nutritionally equivalent or superior to its model, it would be misbrand-ed if it was labeled “imitation.” In the court below," }, { "docid": "14174401", "title": "", "text": "new products are an imitation and semblance of only one category of products, a frozen non-dairy topping such as Cool-Whip. Plaintiff asserts that its two new toppings do not imitate or resemble whipped cream, a dairy product. Plaintiff bases its argument upon the following differences between its new whipped toppings and whipped cream: (1) whipped cream is sold in aerosol cans while whipped toppings are sold in tubs; (2) whipped cream is sold in the refrigerated area of grocery stores with other dairy products while whipped toppings are sold in the frozen foods area with products such as frozen pies, vegetables and juices; and (3) whipped cream contains approximately twice the amount of calories as whipped toppings. Defendants contend that, based on the various factors utilized by the Dairy Commissioner to determine whether a filled dairy product is an imitation or semblance of a dairy product, plaintiff’s new toppings do imitate or resemble whipped cream. The factors considered by the Dairy Commissioner include the labeling of the product, the use of the product by the consumer, and any physical resemblance of the product to a known dairy product. Plaintiff relies upon Coffee-Rich, Inc. v. Kansas State Board of Health, 192 Kan. 431, 388 P.2d 582 (1964) for support of its argument on the “imitation or semblance” issue. Plaintiff contends that this phrase should be construed as it was in Coffee-Rich. A thorough review of Coffee-Rich demonstrates the flaws in plaintiff’s argument. In Coffee-Rich, the Kansas Supreme Court faced the issue of whether Coffee-Rich, a non-dairy coffee enricher and whitener, was an imitation of milk, half and half or cream and thus in violation of a Kansas statute providing that a food is misbranded if it is an imitation of another food and does not bear a label containing the word “imitation” preceding the name of the food imitated. The court concluded that Coffee-Rich was not an imitation of milk, cream or half and half. Rather, it found that Coffee-Rich was a new and different food product having its own unique characteristics. Concerning the issue of whether Coffee-Rich was an imitation" }, { "docid": "19725720", "title": "", "text": "47 L.Ed.2d 43] (1976). The New York regulations require that all cheese substitutes or food containing cheese substitutes be labeled “imitation” even though the FDA would require that only “nutritionally inferior” products be labeled with the term. The FDA expressly found that labeling all substitutes as imitation is misleading and confusing to consum ers. 38 Fed.Reg. 2138 (Jan. 19, 1973). Instead, the federal regulations require nutritional equivalent products to be labeled by a common or descriptive term, e.g., mozzarella cheese substitute. The New York standard as applied to nutritionally equivalent or superior products is contrary to the federal standard and products labeled as such would be deemed misbranded under the federal statute. See 21 U.S.C. § 434(c); 21 F.F.R. § 101.3(e); Affidavit of Robert Hibbert, supra at 117 & 8; Affidavit of Donald Houston, supra, at 118. Thus, if a manufacturer complies with the New York statute, the manufacturer would, at the same time, violate the federal regulations and would therefore be subject to sanctions under the federal statute for misbranding. In short, compliance with both regulations is impossible. The Commissioner suggests that the New York regulations are consistent with federal regulations because the language of the regulations do not preclude “a nutritionally equivalent” food product from being labeled an “imitation.” Although the FDA has determined that some nutritionally equivalent products may be designated as “imitation,” 38 Fed.Reg. 20702-703 (Aug. 2, 1973), the agency has also determined the specific circumstances under which that can occur. It has stated that: A manufacturer or distributor may label a substitute food which is not nutritionally inferior to the traditional food as an imitation if he concludes that the product is inferior in some other way and if the use of the term is not misleading. Id. (emphasis added). Thus, any question as to when use of the label “imitation” is required is foreclosed by the FDA’s regulations. In addition, the New York regulations frustrate FDA’s dual purpose of encouraging the development of nutritious foods and of informing the public of “the actual characteristics and properties of a new food product.” See 38 Fed.Reg." }, { "docid": "16721407", "title": "", "text": "are substitute foods would thus be evident from the foods’ labels, albeit less so than if the word “imitation” was used. The FMIA and the PPIA contain mis-branding provisions essentially identical to the FDCA’s. Compare 21 U.S.C. § 453(h) (PPIA) and § 601(n) (FMIA) with 21 U.S.C. § 343 (FDCA). Unlike the FDCA, both the PPIA and the FMIA, to prevent misbrand-ing, require that all proposed labels be reviewed and approved by USDA agents prior to use. 21 U.S.C. § 457(c) & (d) (PPIA); § 607(d) & (e) (FMIA). Neither the text of nor the regulations under either the FMIA or the PPIA define imitation. However, the USDA avers that it has adopted the FDA’s definition. Thus federal labeling requirements for alternative cheese products and for meat and poultry products containing cheese alternatives are uniform. If the product is nutritionally inferior to the food it resembles, it must be labeled “imitation.” If, however, it is nutritionally equivalent or superior to its model, it would be misbrand-ed if it was labeled “imitation.” In the court below, the parties agreed and the district judge found that there were no unresolved material issues of fact. 581 F.Supp. at 661. The judge therefore deemed summary judgment as to GMA’s motion for preliminary and permanent in-junctive relief appropriate. Id. Accordingly, the court held that New York’s labeling requirements as applied to alternative cheese were preempted by the FDCA because the federal requirements, as applied in compliance with the FDA’s definition of imitation, and the state requirements were in actual conflict. Further, it held that the state labeling requirements as applied to meat and poultry products containing alternative cheese were preempted by the FMIA and the PPIA because the USDA’s adoption of the FDA’s definition of imitation created actual conflict between the state and federal schemes and, also, because of the express preemption language in the federal statutes. Finally, the district court held that the sign, menu and container provisions were invalid because they placed an undue burden on interstate commerce in violation of the Commerce Clause. On appeal, New York challenges all three of the" }, { "docid": "14174405", "title": "", "text": "“imitation” imparts more than mere resemblance or similitude.” 192 Kan. at 437, 388 P.2d 582. This distinction was also recognized in Coffee-Rich, Inc. v. Commissioner of Public Health, 348 Mass. 414, 204 N.E.2d 281, 285 (1965), where the court stated: We are aware of the usual connotations of the word “imitation” which are elaborately expounded by the plaintiff and which might have persuaded courts in other jurisdictions to hold Coffee-Rich or products like it as outside the statutory meanings of the word. See Coffee-Rich, Inc. v. Kansas State Bd. of Health, 192 Kan. 431, 437-438, 388 P.2d 582; Dairy Queen of Wis. Inc. v. McDowell, 260 Wis. 471, 476-477, 51 N.W.2d 34, 52 N.W.2d 791. But see, United States v. 651 Cases, More or Less, of Chocolate Chil-Zert, D.C., 114 F.Supp. 430, 432-433. However, our statute speaks not simply of “imitation,” but of “imitation or semblance’’ (emphasis supplied). We are thus concerned, as we were in Aeration [Processes, Inc. v. Commissioner of Public Health, 346 Mass. 546, 194 N.E.2d 838 (1963)], with actual or apparent resemblance or similarity. See Webster’s Third New Inti. Dictionary at p. 2062. In sum, we do not find the Coffee-Rich decision persuasive on the issue of whether plaintiff’s new whipped topping products are an “imitation or semblance” of a dairy product. Plaintiff further relies upon the testimony of defendant Rowley for support of its argument that its new products are not an “imitation or semblance” of whipped cream. At one point during his testimony, on cross-examination, Dairy Commissioner Rowley did state that he thought plaintiff’s new products were an imitation or semblance of non-dairy whipped toppings and not an imitation or semblance of aerosol whipped cream or pure pack whipping cream. These responses were in direct contradiction to his previous testimony. The court is at a loss to explain these contradictory answers' except to note that Rowley was perhaps focusing on the frozen nature of plaintiff’s new products in accord with plaintiff’s counsel’s line of questioning. A review of defendant Rowley’s entire testimony makes it clear that he found plaintiff’s new whipped toppings with dairy" }, { "docid": "19725721", "title": "", "text": "both regulations is impossible. The Commissioner suggests that the New York regulations are consistent with federal regulations because the language of the regulations do not preclude “a nutritionally equivalent” food product from being labeled an “imitation.” Although the FDA has determined that some nutritionally equivalent products may be designated as “imitation,” 38 Fed.Reg. 20702-703 (Aug. 2, 1973), the agency has also determined the specific circumstances under which that can occur. It has stated that: A manufacturer or distributor may label a substitute food which is not nutritionally inferior to the traditional food as an imitation if he concludes that the product is inferior in some other way and if the use of the term is not misleading. Id. (emphasis added). Thus, any question as to when use of the label “imitation” is required is foreclosed by the FDA’s regulations. In addition, the New York regulations frustrate FDA’s dual purpose of encouraging the development of nutritious foods and of informing the public of “the actual characteristics and properties of a new food product.” See 38 Fed.Reg. 2138 (Jan. 19, 1973); accord, 38 Fed.Reg. 20702 (Aug. 2, 1973). The FDA has expressly rejected the Commissioner’s per se application of the term “imitation” to all food substitutes because the term connotes inferiority and would thereby discourage the development of nutritionally superior products in contravention of Congressional intent in passing the FDCA. 38 Fed.Reg. 2138 (January 18, 1973). Moreover, the FDA found that the indiscriminate use of “imitation” on all foods leads to consumer confusion which the FDCA was designed to prevent. Thus, the state regulation interferes with the “accomplishment and execution of the full purposes and objectives” of the agency’s regulations. See Ray v. Atlantic Richfield Co., 435 U.S. 151, 158, 98 S.Ct. 988, 994, 55 L.Ed.2d 179 (1977) citing Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941). Under these circumstances, where the state regulations directly conflict with federal law and in fact, stand as an obstacle to the accomplishment of the purpose of the federal law, the state regulations are preempted by the federal regulatory" }, { "docid": "19725707", "title": "", "text": "to on January 17, 1984. As indicated by the affidavit of Thomas Brennan, supra, the likely consequence of the sign and menu posting requirements is that food service establishments will purchase only natural cheese products in order to avoid compliance with the statute and the stigma associated with the term “imitation.” I find therefore that under the Hunt standard, GMA also has standing to challenge the sign and menu posting requirements of Section 63. PREEMPTION Both the FDA and the USDA agree that the sign and menu posting requirements of the New York statute are not preempted by the FDCA, FMIA or the PPIA. GMA’s challenge to those provisions under the Commerce Clause will be addressed in a later section. The more difficult matter raised by the New York Imitation Cheese Statute is whether the labeling regulations are preempted by the respective federal statutes under the Supremacy Clause of the United States Constitution. The Commissioner argues that the federal regulations govern only the labeling of imitation cheese and do not extend to the labeling of food products which merely contain artificial cheese. Thus, defendants contend that the state is not preempted from issuing its own regulations in the related field. A. The Federal Meat and Poultry Acts (1) The Preemptive Effect of the Federal Regulations Both the FMIA and the PPIA explicitly address the labeling and ingredient requirements for all federally inspected meat and poultry food products transported in interstate commerce. In fact, the USDA is now considering proposed regulations on the labeling of meat and poultry food products containing cheese substitutes and a revised standard of identity for meat-topped pizza which would include a consideration of imitation cheese. Affidavit of Robert Hibbert, supra, at II6; 48 Fed.Reg. 35654-59 (Aug. 5, 1983). Each statute provides that while the state may exercise concurrent jurisdiction in enforcing the federal regulations, it may not impose labeling requirements that are “in addition to, or different than, those made under” the respective acts. 21 U.S.C. §§ 678 & 467e. The New York regulations, which require meat and poultry products to be labeled in a manner" } ]

[ { "docid": "22791985", "title": "", "text": "both in Title VII it restricted the amount of damages available. Congress enacted Title IX in 1972 with two principal objectives in mind: “[T]o avoid the use of federal resources to support discriminatory practices” and “to provide individual citizens effective protection against those practices.” Cannon, supra, at 704. The statute was modeled after Title VI of the Civil Rights Act of 1964, see 441 U. S., at 694-696; Grove City College v. Bell, 465 U. S. 555, 566 (1984), which is parallel to Title IX except that it prohibits race discrimination, not sex discrimination, and applies in all programs receiving federal funds, not only in education programs. See 42 U. S. C. § 2000d et seq. The two statutes operate in the same manner, conditioning an offer of federal funding on a promise by the recipient not to discriminate, in what amounts essentially to a contract between the Government and the recipient of fluids. See Guardians, 463 U. S., at 599 (opinion of White, J.); id., at 609 (Powell, J., concurring in judgment); cf. Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 17 (1981). That contractual framework distinguishes Title IX from Title VII, which is framed in terms not of a condition but of an outright prohibition. Title VII applies to all employers without regard to federal funding and aims broadly to “eradicate] discrimination throughout the economy.” Landgraf v. USI Film Products, 511 U. S. 244, 254 (1994) (internal quo tation marks omitted). Title VII, moreover, seeks to “make persons whole for injuries suffered through past discrimination.” Ibid, (internal quotation marks omitted). Thus, whereas Title VII aims centrally to compensate victims of discrimination, Title IX focuses more on “protecting” individuals from discriminatory practices carried out by recipients of federal funds. Cannon, supra, at 704. That might explain why, when the Court first recognized the implied right under Title IX in Cannon, the opinion referred to injunctive or equitable relief in a private action, see 441 U. S., at 705, and n. 38, 710, n. 44, 711, but not to a damages remedy. Title IX’s contractual nature has" } ]

[ { "docid": "20020354", "title": "", "text": "the defendants’ motion for summary judgment on Martin’s Title VII claim alleging retaliatory transfer is denied. II. Title VI Claims Plaintiffs also allege that defendants’ actions against them violated Title VI of the 1964 Civil Rights Act. Title VI provides that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d. Defendants seek summary judgment on these claims based on a lack of standing, as well as the untimeliness of Hegde’s claims. A. Standing In order to recover for a violation of Title VI, a plaintiff must demonstrate that (1) the defendant received federal financial assistance, (2) the plaintiff was an intended beneficiary of the program or activity receiving the assistance, and (3) the defendant discriminated against the plaintiff on the basis of race, color, or national origin in connection with that program or activity. Commodari v. Long Island Univ., 89 F.Supp.2d 353, 378 (E.D.N.Y.2000); see also Scelsa v. City Univ. of N.Y., 806 F.Supp. 1126, 1140 (S.D.N.Y.1992). As this is a case of employment discrimination, the federal funds received by defendants must have been aimed primarily at providing employment. See Ass’n Against Discrimination In Employment (“AADE”), Inc. v. City of Bridgeport, 647 F.2d 256, 276 (2d Cir.1981); see also 42 U.S.C. § 2000d-3. Here, plaintiffs have failed to produce, sufficient evidence for a rational trier of fact to conclude they were themselves intended beneficiaries of federal funds. To support their claim of standing, plaintiffs first point to the LIEOC’s annual receipt of federal Carl D. Perkins grants. According to Henry, however, the Perkins grants “[can] be used only for vocational programs that would benefit students.” Henry Reply Aff. ¶ 11. As such, plaintiffs could not have been the intended beneficiaries. Martin counters that “upon information and belief, the federal grants received by the LIEOC contribute[s] to the salaries of employees at the LIEOC. The exact amount is unknown as the recipient of the funds has" }, { "docid": "2129529", "title": "", "text": "complaint nor her response to the motion,to dismiss provide any factual basis for this speculative and implausible claim. See Twombly, 550 U.S. at 570, 127 S.Ct. 1955 (holding that complaint must plead facts sufficient “to state a claim to relief that is plausible on its face.”). In sum, James does not adequately allege “a sufficient likelihood that [she] will again be wronged in a similar way” by American. Byram Hills, 648 Fed.Appx. at 124-25. For this additional reason, the Court grants American’s motion to dismiss James’s’ claim under Title II, 42 U.S.C. § 2000a. See Byram Hills, 648 Fed.Appx. at 125. D. Title VI Claim To plead a claim under'Title VI of the Civil Rights Act of 1964, a plaintiff must allege that he or she, “on the ground of race, color, or national origin, [was] excluded from participation in, [was] denied the benefits of, or [was] subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d. Here, James does not identify any “program or activity receiving Federal financial assistance” to sustain her claim under Title VI. (See generally Dkt. 15-1; Dkt. 24.) A claim under Title VI cannot proceed without that requisite nexus. See McCrudden v. E-Trade Fin. Corp., 13 Civ. 8837, 2014 WL 3952903, at *4 (S.D.N.Y. Aug. 12, 2014) (dismissing Title VI claim where complaint failed to allege requisite nexus between federal assistance and alleged discrimination); Rojas v. Port Auth. of N.Y., 15 Civ. 6185, 2016 WL 5921777, at *12 (E.D.N.Y. Oct. 11, 2016) (same), appeal docketed, No. 16-3808 (2d Cir. 2016). For this, reason, the Court grants American’s motion to dismiss James’s claim under Title VI. E. Claim under 49 U.S.C. § 40127(a) James asserts a claim under 49 U.S.C. § 40127(a) (“Section 40127(a)”), which prohibits any “air carrier” from “subjecting] a person in air transportation to discrimination on the basis of race, col- or, national origin, religion, sex, or ancestry.” American argues that this claim should be dismissed because there is no private right of action under Section 40127(a). (Def.’s Br. 22.) The Second Circuit has not ruled on" }, { "docid": "19096479", "title": "", "text": "cases. However, the Court concludes that Defendants’ extrapolation, while superficially appealing, is untenable in light of the statutory text. First, nothing in the plain language of § 2000d-7 distinguishes between actions brought under § 504 of the Rehabilitation Act, Title IX of the Education Amendments (“Title IX”), Title VI of the Civil Rights Act (“Title VI”), and the Age Discrimination Act. Defendants cite no statutory support for their conclusion that a claim arising under one of these four acts defeats a state’s sovereign immunity defense only if the individual act provides federal funding to implement the act itself. It is true that the Rehabilitation Act does specifically provide federal funding for designated programs and activities. See 29 U.S.C. §§ 794b, 794e. While Defendants correctly note that the Age Discrimination Act does not specifically fund designated programs and activities, they fail to note that neither Title IX nor Title VI specifically fund designated programs or activities. Rather, the three acts forbid discrimination on the basis of an identified characteristic in any program or activity receiving federal financial assistance. See 42 U.S.C. § 2000d (“No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”); 20 U.S.C. § 1681(a) (“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.... ”); 42 U.S.C. § 6102 (“Pursuant to regulations ... and except as [otherwise] provided ... no person in the United States shall, on the basis of age, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any program or activity receiving Federal financial assistance.”). Congress unequivocally expressed its intent to condition receipt of federal assistance on a waiver of sovereign immunity under the Rehabilitation Act, Title IX, Title VI, and the Age Discrimination Act. See Clark, 123 F.3d at 1271." }, { "docid": "21193174", "title": "", "text": "have waived sovereign immunity by accepting federal funds. (Mem in Opp. at 7) Title VI states that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d. CUNY acknowledges that it receives federal funds. (Defs.’ Mem. at 11) Further, Congress has abrogated States’ sovereign immunity for “violations [of Title VI] that occur in whole or in part after October 21, 1986” 42 U.S.C. § 2000d-7(b) (Supp.1987), and CUNY is therefore not immune to suit under Title VI. As a threshold matter, I note that Title VI claims cannot be asserted against an individual defendant because the individual is not the recipient of federal funding. Folkes v. New York College of Osteopathic Medicine of New York, 214 F.Supp.2d 273, 292 (E.D.N.Y.2002). As to plaintiffs claims against CUNY, rather than asserting a claim alleging that CUNY’s policies or general practices are discriminatory, Goonewardena seeks to hold CUNY accountable for the acts of its employees. Liability under Title VI, which parallels that of Title IX, cannot be imputed to institutions based on the actions of their employees. Cf. Gebser v. Lago Vista Independent Sch. Dist., 524 U.S. 274, 287-88, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998)(school district cannot be held liable for harassment of student by teacher based on principles of constructive notice or vicarious liability under Title IX.) Further, even if I were to adopt the proposition that an educational institution may be liable under Title VI for the actions of its employees if the institution is “deliberately indifferent” to discrimination to such an extent that the indifference may be viewed as racially motivated, see Rodriguez v. New York University, 2007 WL 117775, *6 (S.D.N.Y. Jan.16, 2007) (citations omitted), Goonewardena has failed to allege that the school acted with the requisite discriminatory intent. See Alexander v. Sandoval, 532 U.S. 275, 280-81, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). While Goonewardena alleges that Escott’s ac tions “show that he" }, { "docid": "10294737", "title": "", "text": "of Educ., 926 F.2d 505, 509-510 (6th Cir.) (employees and agents of school board are not separate “persons” to form a conspiracy), cert. denied, — U.S.-, 111 S.Ct. 2917, 115 L.Ed.2d 1080 (1991), we hold that the various participants identified by plaintiffs are not separate “people” capable of conspiring with each other for the purposes of § 1985(3). Accordingly, we dismiss plaintiffs’ Count IV conspiracy claims. H. Title VI (Count V) Section 601 of Title VI, 42 U.S.C. § 2000d, provides that “[n]o person ... shall, on the ground of race, color, or natural origin, be excluded from participation in, be denied the benefit of or be subjected to discrimination under any program or activity receiving Federal financial assistance.” In Count V of their amended complaint, plaintiffs contend that the City, as a recipient of federal funds, made employment decisions based on.race in violation of § 601 of Title VI. Defendants move to dismiss Count V on the ground that plaintiffs lack standing to challenge defendants’ use of federal funds. In order to bring a private action under Title VI, “the plaintiff must be the intended beneficiary of, an applicant for, or a participant in a federally funded program.” Simpson v. Reynolds Metals Co., 629 F.2d 1226, 1235 (7th Cir.1980); see also N.A.A.C.P. v. Wilmington Medical Center, Inc., 599 F.2d 1247, 1252 (3d Cir.1979). Plaintiffs do not, and clearly cannot, make such allegations. We observe that the court in Simpson has recognized that “[t]his principle is somewhat broadened in that some administrative actions indicate that the antidiscrimination provision of Title VI is applicable also to employment practices of recipients of federal financial assistance in situations where employment discrimination against non-beneficiaries affects the beneficiaries of the assistance.” Id. at 1235 n. 16. Although plaintiffs do not allege that they are the intended beneficiaries of the federal funds received by the City, they do allege that they “provide aid or assistance to some of the intended beneficiaries, while they were working, which will no longer be received now that they are unemployed.” First-Amended Complaint ¶ 85, at 42. This presumptive allegation, however," }, { "docid": "16018737", "title": "", "text": "excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. 42 U.S.C. § 2000d. The regulations implementing Title VI provide that no program receiving federal assistance through the Department of Justice shall utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respects individuals of a particular race, color, or national origin. 28 C.F.R. § 42.104(b)(2). Defendants argue the Plaintiffs have failed to state a claim under Title VI because they fail to allege specific facts from which it can be concluded that Defendants engage in racial discrimination. However, as noted above, there is no heightened pleading standard in the Ninth Circuit for civil rights complaints; compliance with F.R.Civ.P. 8(a) generally constitutes sufficient particularity to withstand a motion to dismiss. Under Title VI, there are two types of potential liability. Plaintiffs may state a claim for damages pursuant to the statute, for equitable relief pursuant to the regulations or for both. See Larry P. by Lucille P. v. Riles, 793 F.2d 969, 981-82 (9th Cir.1984) (citing Guardians Ass’n v. Civil Serv. Comm’n of City of New York, 463 U.S. 582, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983)). The statute requires proof of discriminatory intent; the regulations do not. See 793 F.2d at 981-82. “To state a claim for damages under 42 U.S.C. § 2000d, et seq., a plaintiff must allege that (1) the entity involved is engaging in racial discrimination; and (2) the entity involved is receiving federal financial assistance. Although the plaintiff must prove intent at trial, it need not be pled in the complaint.” Fobbs v. Holy Cross Health Sys. Corp., 29 F.3d 1439, 1447 (9th Cir.1994) (citations omitted). In the present matter, Plaintiffs have met the pleading standard set forth in Fobbs. Plaintiffs allege that Defendants engage in racial discrimination by stopping, detaining, interrogating and searching motorists on the basis of race, and they" }, { "docid": "11617199", "title": "", "text": "therefore GRANTS Defendants’ motion for summary judgment on Plaintiffs Title II claims. 4. 42 U.S.C. § 2000d Title VI of the Civil Rights Act provides that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d. A private individual may sue to enforce Title VI only in instances of intentional discrimination. Alexander v. Sandoval, 532 U.S. 275, 281, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). Plaintiffs claims under Title VI, like her claims under Title II, cannot survive summary judgment because she has failed to present evidence that Defendants’ conduct was racially motivated and that it constitutes intentional discrimination. Plaintiffs allegations of intentional discrimination on the basis of her race may be sufficient to survive a motion to dismiss. However, on a motion for summary judgment, bare allegations unsupported by legally competent evidence do not create a genuine issue of material fact. See British Airways Bd. v. Boeing Co., 585 F.2d 946, 953-54 (9th Cir.1978) (supposition, speculation, and conclusory arguments without evidence are insufficient to create a genuine issue of material fact). Plaintiffs Title VI claims are therefore DISMISSED with prejudice. 5. 42 U.S.C. § 2000h In her third amended complaint, Plaintiff asserts a claim under Title XI of the Civil Rights Act. Title XI, however, contains miscellaneous provisions related to, among other things, criminal contempt proceedings arising under the Civil Rights Act and preemption. 42 U.S.C. §§ 2000h, 2000h-4. Plaintiff has not articulated or shown the existence of any facts involving criminal contempt and thus, the Court finds dismissal of Plaintiffs Title XI claim appropriate. E. ADA Plaintiff alleges that Defendants denied her medical treatment and communication on the basis of her mental health disability in violation of Titles II and III of the ADA. Dkt. # 122 at 10-11. Defendants argue that the undisputed evidence shows they provided extensive medical treatment and did not deny Plaintiff access to medical facilities or an accommodation. Dkt. #" }, { "docid": "16018736", "title": "", "text": "them in their alleged discriminatory tactics, and that the officers who stopped Rodriguez, Lopez and Washington did so with a conscious racial motive. The individual plaintiffs also allege that they were falsely imprisoned, allegations as to which there is an explicit statutory basis of liability under Government Code § 820.4. Thus, because Plaintiffs’ allegations in the present case are broad enough to encompass conduct not within the scope of the cited immunity provisions, the Court cannot resolve at the pleading stage the issue of whether any or all of the immunities bar Plaintiffs’ claims. Davison by Sims v. Santa Barbara High School District, 48 F.Supp.2d 1225 (C.D.Cal.1998), relied upon by Defendants, is inapposite because the allegations of the complaint in that case were limited to “basic policy decisions.” F. Title VI of the Civil Rights Act of 1964 The First Amended Complaint alleges a violation of Title VI of the Civil Rights Act of 1964, which provides that No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. 42 U.S.C. § 2000d. The regulations implementing Title VI provide that no program receiving federal assistance through the Department of Justice shall utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respects individuals of a particular race, color, or national origin. 28 C.F.R. § 42.104(b)(2). Defendants argue the Plaintiffs have failed to state a claim under Title VI because they fail to allege specific facts from which it can be concluded that Defendants engage in racial discrimination. However, as noted above, there is no heightened pleading standard in the Ninth Circuit for civil rights complaints; compliance with F.R.Civ.P. 8(a) generally constitutes sufficient particularity to withstand a motion to dismiss. Under Title VI, there are two types of potential liability. Plaintiffs may" }, { "docid": "4994895", "title": "", "text": "the students from enjoying all the benefits, privileges, terms and conditions of the contractual relationship by failing to provide the necessary remedial education classes, thereby intentionally discriminating on the basis of race in the making, performance, modification, and termination of contracts, in violation of 42 U.S.C. § 1981. See 03/02/10 Dec. & Ord., pp. 9-10 (dkt. #28). Plaintiff asserts that Defendants retaliated against him for his complaints of these practices by removing him as Dean and by providing false or negative references about him resulting in his denial of the Provost position at SUNY Delhi. Defendants assert that no discrimination occurred in its policies, and that it did not retaliate against Plaintiff for his complaints. a. Title VI Title VI provides that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d. It is well established that “private individuals may sue to enforce ... Title VI and obtain both injunctive relief and damages.” Alexander v. Sandoval, 532 U.S. 275, 279, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001); see Peters v. Jenney, 327 F.3d 307, 315 (4th Cir.2003). A plaintiff may bring a claim under Title VI for retaliation for opposing practices that one reasonably believes constitute intentional discrimination under Title VI. See Peters, 327 F.3d at 318-19; see also 34 C.F.R. § 100.7(e) (prohibiting intimidatory, coercive, or discriminatory conduct engaged in “for the purpose of interfering with any right or privilege secured by Section 601” of Title VI). However, “Title VI does not provide for individual liability, only liability against entities that receive federal financial assistance.” Bossie v. Houle, 2011 WL 4435699, at *3 (D.Conn. Sept. 23, 2011) (citing cases). Thus, to the extent Plaintiff asserts individual capacity claims against Defendants Myers and Zingale under Title VI, see Am. Comp. ¶ 67 (seeking to impose joint and several liability on all Defendants for the purported Title VI violation), the claims are dismissed. To the extent Plaintiff" }, { "docid": "16694340", "title": "", "text": "by officers about whether to issue summonses are matters of local/state discretion and do not implicate the ADA. Thus, plaintiffs ADA claim is dismissed with prejudice. II. Plaintiffs Claim that the Issuance Of A Parking Ticket Violated Her Rights Under Title VI Of The Civil Rights Act Is Dismissed For Failure To State A Claim The plaintiff alleges discrimination based on her race and color under Title VI of the Civil Rights Act of 1964. Ms. Kelly alleges the defendants denied her equal terms, conditions and privileges of public accommodation (access to handicapped parking) because of her race and color. Title VI provides that “[n]o person in the United States shall, on the ground of race, color or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d. In sum, Title VI prohibits exclusion from participation, or discrimination, in federally assisted programs. The proper defendant in such a case is the entity that receives federal financial assistance, not an individual. See e.g. Jackson v. University of New Haven, 228 F.Supp.2d 156, 158 (D.Conn.2002) (citing Bayon v. State Univ. of New York at Buffalo, No. 98 Civ. 0578E (SR), 2001 WL 135817, at *2 (W.D.N.Y.Feb.15, 2001)(“plaintiffs Title VI claims against the individual defendants in their individual capacities fail because this act does not provide for individual liability”), Jackson v. Katy Independent School District, 951 F.Supp. 1293, 1298 (S.D.Tex.1996) (holding that because the proper defendant in a Title VI case is an entity rather than an individual, plaintiff could not be sued in his individual capacity under Title VI); Powers v. CSX Transp., Inc., 105 F.Supp.2d 1295, 1311 (S.D.Ala.2000) (citing numerous district court opinions for this proposition)). Thus, this claim, too, must be dismissed insofar as it alleges a Title VI violation by Officer Rice in his individual capacity. Moreover, plaintiff has not alleged that Westchester County is receiving federal funds in connection with any program to provide handicapped parking facilities. This is absolutely fatal to her Title VI claim, since a" }, { "docid": "18706311", "title": "", "text": "thus requiring that these Counts be dismissed. COUNT V Count V is based upon 42 U.S.C. § 2000d. Under § 2000d: No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. In Simpson v. Reynolds Metal Co., Inc., 629 F.2d 1226 (7th Cir.1980), the Court set out the standard for whether an individual can sue under § 2000d. According to the Court: The legislative history of Title VI ... lends support to the conclusion that Congress did not intend to extend protection under Title VI to any person other than an intended beneficiary of federal financial assistance. 629 F.2d at 1235. Thus an individual may not sue unless he is within the group of people who are the intended beneficiaries of the federal aid. In the case at bar, plaintiff alleges that the Chicago Police Department is a federally funded program. However, he does not allege that he is among the intended beneficiaries of such funding. Having failed to make such an allegation, plaintiff cannot bring a claim under § 2000d. CONCLUSION For the foregoing reasons, defendants’ Motion to Dismiss is granted in part and denied in part. Counts I, III, IV and V are dismissed in their entirety. Count II is dismissed as to the City of Chicago only. IT IS SO ORDERED. . Defendant has also moved to strike the allegations of punitive damages against the City. Because of the resolution of the Motion to Dismiss, the Motion to Strike is deemed to be moot." }, { "docid": "16694339", "title": "", "text": "purposes of this motion that plaintiffs fybromalasia “affected” her ability to walk, I am constrained to conclude that she has not satisfied the basic pleading requirements for a viable ADA claim because her ability was not “substantially limited” when she used a corrective device. Ordinarily, I would dismiss this claim without prejudice, giving plaintiff leave to replead (if she could) in conformity with the applicable legal standard. However, in this case granting leave to amend would be futile, because plaintiff has also failed to allege facts tending to show that Westchester County excluded plaintiff from the use of a public service, program or activity, to wit, access to a handicapped parking space. Per the allegations of plaintiffs complaint, she had been issued a handicapped parking sticker, which gave her official access to handicapped parking spaces. The County did not exclude her from access. An individual officer believed her tag was not valid, and issued her a ticket. And because the enforcement of local parking regulations is a matter governed by state or local law, decisions by officers about whether to issue summonses are matters of local/state discretion and do not implicate the ADA. Thus, plaintiffs ADA claim is dismissed with prejudice. II. Plaintiffs Claim that the Issuance Of A Parking Ticket Violated Her Rights Under Title VI Of The Civil Rights Act Is Dismissed For Failure To State A Claim The plaintiff alleges discrimination based on her race and color under Title VI of the Civil Rights Act of 1964. Ms. Kelly alleges the defendants denied her equal terms, conditions and privileges of public accommodation (access to handicapped parking) because of her race and color. Title VI provides that “[n]o person in the United States shall, on the ground of race, color or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d. In sum, Title VI prohibits exclusion from participation, or discrimination, in federally assisted programs. The proper defendant in such a case is the entity that receives federal" }, { "docid": "22950484", "title": "", "text": "Defendants [sic] discriminatory practices violate the plaintiffs’ rights not to be excluded from participation in, denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance, on account of race, color, or national origin, guaranteed by Title VI of the Civil Rights Act of 1964, 42 U.S.C. Section 2000d. The City admitted the allegations of paragraph 6(b), and denied paragraph 17. Much of the evidence presented by plaintiffs at trial related to the City’s discriminatory practices between 1964, when Title VI took effect, and 1972 when Title VII became applicable to municipalities. For example, the record included the firefighters examinations given in 1965, 1968 and 1971, with data as to the numbers of minority and nonminority applicants who took and who passed those exams. This evidence was relevant not only as background for the Title VII claim, but also as proof of the Title VI claim. The latter relevance does not seem to have been entirely lost on the defendants; the City’s post-trial memorandum began with the statement that the plaintiffs asserted claims under both Title VII and Title VI. We conclude that the defendants had more than adequate notice and opportunity to contest the Title VI claims at the initial trial in this case, and that the district court was entitled to con sider these claims after the remand from this Court. As the record stands, however, we do not find that plaintiffs proved all of the elements of their Title VI claim. Title VI, § 601 of the Civil Rights Act, states: No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. 42 U.S.C. § 2000d (1976). Section 602 of the Act imposes on agencies “empowered to extend Federal financial assistance to any program or activity” a duty to effectuate the provisions of the Title by issuing appropriate rules and regulations. 42 U.S.C. § 2000d-l. The enforcement power of the agencies" }, { "docid": "21193173", "title": "", "text": "other elements of the statute and the motion to dismiss plaintiffs Rehabilitation Act claims against CUNY is denied. Similarly, given that CUNY does not contest that it has waived its Eleventh Amendment immunity through acceptance of federal funds, the official capacity suits against the individual defendants Raab, Escott and Chin may also proceed as their immunity to suit tracks that of CUNY. See Shariff v. Goord, 2005 WL 1863560 (W.D.N.Y. Aug.4, 2005)(citing Garcia, 280 F.3d at 107). The motion to dismiss the claims against the individual defendants in their official capacities is therefore denied. D. The Equal Protection and Due Process Claims In his Amended Complaint, Goonewardena alleges, without reference to statute, that his equal protection and due process rights have been violated. He seeks damages for alleged discrimination against him based on his “Race, National Origin, Color and Religion.” (AC “WHEREFORE” Cl. A) 1. Title VI In his memorandum, Goonewardena references Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, as the statutory source for his claim, contending that defendants have waived sovereign immunity by accepting federal funds. (Mem in Opp. at 7) Title VI states that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d. CUNY acknowledges that it receives federal funds. (Defs.’ Mem. at 11) Further, Congress has abrogated States’ sovereign immunity for “violations [of Title VI] that occur in whole or in part after October 21, 1986” 42 U.S.C. § 2000d-7(b) (Supp.1987), and CUNY is therefore not immune to suit under Title VI. As a threshold matter, I note that Title VI claims cannot be asserted against an individual defendant because the individual is not the recipient of federal funding. Folkes v. New York College of Osteopathic Medicine of New York, 214 F.Supp.2d 273, 292 (E.D.N.Y.2002). As to plaintiffs claims against CUNY, rather than asserting a claim alleging that CUNY’s policies or general practices are discriminatory, Goonewardena" }, { "docid": "14919415", "title": "", "text": "find that the District Court’s factual findings were not clearly in error and we therefore deny Plaintiffs’ Appeal. However, because we conclude that a court may only deny a prevailing party all costs when the party has engaged in misconduct, we remand the case to the District Court to reconsider Defendants’ application for costs. II. Legal Analysis A. Standard of Review We review de novo the District Court’s conclusion of law that Title VI and Title VII apply to the Commission’s testing activities, Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir.1996), and review the District Court’s factual findings for clear error. Clady v. County of Los Angeles, 770 F.2d 1421, 1427 (9th Cir.1985). B. Application of Title VI to the CBEST 1. General Applicability of Title VI Title VI was originally passed as part of the 1964 Civil Rights Act, and it contains a prohibition on the use of federal dollars to subsidize racial discrimination: No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, or be denied the benefits of, or be subject to discrimination in any program or activity receiving Federal financial assistance. 42 U.S.C.A. § 2000d. The purpose of Title VI is clear: Congress wanted to avoid the use of federal resources to support discriminatory practices and it wanted to provide effective protection against those practices. Cannon v. University of Chicago, 441 U.S. 677, 704 n. 36, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). In the Civil Rights Restoration Act of 1987, Congress amended Title VI to include a definition of “program or activity.” As amended, Title VI provides that: For the purposes of this subchapter, the terms “program or activity” and the term “program” mean all of the operations of — (1)(A) a department, agency, special purpose district, or other instrumentality of a State or of a local government; or (B) the entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local 'government entity) to which the assistance is extended, in" }, { "docid": "12805823", "title": "", "text": "the necessary facts which could give rise to an inference that defendants intentionally discriminated on the basis of race, they have not stated a claim under 42 U.S.C. § 1981, and Count I must be and herewith is dismissed. Count II Count II alleges violations of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d. That statute provides in pertinent part: No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program oor activity receiving Federal financial assistance. To make out a direct claim under Title VI, plaintiffs must allege and prove that the discriminatory act of which they complain was purposeful and intentional. Alexander v. Choate, 469 U.S. 287, 293, 105 S.Ct. 712, 716, 83 L.Ed.2d 661 (1985) (“Title VI itself directly reach[es] only instances of intentional discrimination”); Latinos, supra note 9, at 783 (“To prevail with a direct claim under [Title VI] plaintiffs must show that defendant acted with discriminatory intent.”). For reasons set forth above, the Court finds that plaintiffs have failed to plead facts demonstrating intentional racial animus. Accordingly, plaintiffs have failed to meet the minimum pleading requirements of a Title VI case, and Count II must be and herewith is dismissed. In sum, for reasons set forth above, the Court herewith grants defendants’ motion to dismiss (document no. 11). SO ORDERED. . Because the matter may be resolved on the documents as filed, defendants’ request for oral argument is herewith denied. See Local Rule 11(g). . The Review has published prior negative articles about Professor Cole, and in 1983 Cole sued the Review for libel. The suit was eventually dropped. . Plaintiffs assert that anti-Review posters appeared on campus that contained a racial slur falsely attributed to plaintiff Sutter. Review members were allegedly threatened by other students. Plaintiffs do not allege that any of the named defendants were involved in these incidents. . Sutter’s and Baldwin’s suspensions have been revoked pursuant to a January 3, 1989, order of" }, { "docid": "518294", "title": "", "text": "DISCUSSION Defendants’ motion is based on two arguments. First, they contend that argue that Plaintiffs may not recover on their Title VI claim because a primary object of the federal financial assistance is to provide employment. Second, Defendants argue that Plaintiffs lack standing to bring a Title VI claim because they are not the intended beneficiaries of the federal funds. A Title VI of the Civil Rights Act of 1961 Section 601 of Title VI of the Civil Rights Act of 1964 states: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d. Recovery, however, is limited in the employment context. Section 604 of Title VI states: “Nothing contained in this subchapter shall be construed to authorize action under this sub-chapter by any department or agency with respect to any employment practice of any employer, employment agency, or labor organization except where a primary objective of the Federal financial assistance is to provide employment.” 42 U.S.C. § 2000d-3. Thus, Plaintiffs have stated a claim upon which relief can be granted if a reasonable inference from their complaint suggests that (1) Defendant discriminated against Plaintiffs on the basis of race under a program or activity receiving federal assistance and (2) a primary objective of the federal funding is to provide employment. Plaintiffs’ complaint alleges that Defendants received federal funds provided for the purpose of employment and then made decisions on that employment on the basis of race. Specifically, Defendants treated Plaintiffs, recipients of federal funds or seeking positions funded by federal funds, differently in terms and conditions of employment, opportunity for advancement, promotion, and hiring on account of their race. (Compl.f 127). Accepting as true the allegations of fact pleaded in that paragraph, and construing the complaint in a light most favorable to Plaintiffs, a reasonable reading of the pleading shows that Plaintiffs have stated a claim upon which relief can be granted under 42 U.S.C. §" }, { "docid": "15886899", "title": "", "text": "at Endeavor already knew about it. In this suit, plaintiffs remaining claims are that the District engaged in (1) national origin and race discrimination in violation of Title VI when Serzyski sent him to the office for speaking Spanish on November 28, 2005, and (2) retaliation when teachers verbally attacked him on February 10, 2006 and gave him an increased number of discipline referrals. See Pretrial Order (Doc. # 98) filed October 2, 2007 at 8-9. The District seeks summary judgment on both claims. Plaintiff seeks money damages for pain and suffering, mental and emotional distress, and missed classes during his suspension. Analysis I. National Origin And Race Discrimination (Count I) Plaintiff alleges that the District is liable under Title VI for a hostile environment based on national origin and race because Serzyski sent him to the office for speaking Spanish on one occasion, November 28, 2005. The District argues that it did not have notice of the alleged discrimination and that when it received such notice, it took adequate remedial measures. Title VI generally prohibits discrimination by federally funded programs. See id. at 1302. Section 601 of Title VI provides that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d. Private individuals may sue to enforce Section 601 of Title VI and obtain both injunctive relief and damages. Alexander v. Sandoval, 532 U.S. 275, 279, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). Title VI further states that no action shall be taken until the department or agency concerned has advised the “appropriate person” of the failure to comply with the requirement and has determined that compliance cannot be secured by voluntary means. 42 U.S.C. § 2000d-l. Under an identical provision in Title IX, the Supreme Court has held that unless an “appropriate person” has actual knowledge of the alleged discrimination and fails to adequately respond to such discrimination, a damage remedy will not lie." }, { "docid": "8407430", "title": "", "text": "fails to demonstrate facts sufficient to establish an element essential to his case when that party will ultimately bear the burden of proof at trial. See Celotex, 477 U.S. at 322, 106 S.Ct. 2548. DISCUSSION I. Title VI Plaintiffs’ first count arises under Title VI of the 1964 Civil Rights Act, 42 U.S.C. § 2000d to 2000d-7 (“Title VI”). Title VI provides in relevant part: No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. 42 U.S.C. § 2000d (1994). This section creates a private cause of action. Alexander v. Sandoval, 532 U.S. 275, 279, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). To state a Title VI claim for damages, “a plaintiff need only allege that (1) the entity involved is engaging in racial discrimination; and (2) the entity involved is receiving federal financial assistance.” Fobbs v. Holy Cross Health Sys. Corp., 29 F.3d 1439, 1447 (9th Cir.1994), overruled in part on other grounds by Daviton v. Columbia/HCA Healthcare Corp., 241 F.3d 1131 (9th Cir.2001). To prevail on a Title VI claim, however, a plaintiff must prove (1) that he is an “intended beneficiary of the federally-funded program the defendants ... participated in,” Wrenn v. Kansas, 561 F.Supp. 1216, 1221 (D.Kan.1983); accord Otero v. Mesa County Valley Sch. Dist. No. 51, 470 F.Supp. 326, 329-30 (D.Colo.1979); cf. Fobbs, 29 F.3d at 1447, and (2) that the defendant intentionally discriminated against him in violation of the statute, Alexander, 532 U.S. at 280, 121 S.Ct. 1511; Fobbs, 29 F.3d at 1447; Smith v. University of Wash. Law Sch., 2 F.Supp.2d 1324, 1336 (D.Wash.1998). The March Order allowed Mab-senn’s cause of action to proceed against Maui County but dismissed Plaintiffs’ Title VI claims in remaining part. Id. at 37. This dismissal was with prejudice, except as to Scott, id., and Plaintiffs’ Second Amended Complaint realleged a Title VI claim on her behalf. Upon review of the Second Amended Complaint, the August Order found" }, { "docid": "14810774", "title": "", "text": "Based on the foregoing, I recommend that all of the defendants be granted summary judgment with respect to plaintiffs 42 U.S.C. § 1983 claim for denial of due process. IX. Title VI Title VI of the Civil Rights Act of 1964 provides that “[n]o person in the United States shall, on the ground of race, color or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d. “[F]or a claimant to recover under Title VI against an employer for discriminatory employment practices, a threshold requirement is that the employer be the recipient of federal funds aimed primarily at providing employment.” Association Against Discrimination in Employment, Inc. v. City of Bridgeport, 647 F.2d 256, 276 (2d Cir.1981) (citing cases); Johnson v. Coun ty of Nassau, 411 F.Supp.2d 171, 175 (E.D.N.Y.2006) (same). Here, plaintiff alleges that the “Village and/or [the RVCPD] receives federal financial assistance, which, in part, is aimed at employment.” (Compl. ¶ 70.) However, plaintiff has failed to offer any evidence whatsoever to support his claim that the Village Defendants received federal funds aimed at employment during the time that plaintiff was employed with the RVCPD, thereby subjecting them to potential liability under Title VI. Rather, the Village Defendants have submitted an affidavit from the Grants Manager of the Village, Frank Keating (“Keating”), who states that he “reviewed all of the records of [the Village] for the period March 2002 through August 2003 pertaining to Federal grants received by [the Village],” and “determined that no grants had been received by [the Village] during that period which involved federal money used for employment purposes.” (Keating Aff., Apr. 22, 2008, ¶ 2.) Plaintiff has offered nothing to refute Keating’s affidavit. The conclusory allegation contained in plaintiffs Complaint does not suffice to survive summary judgment. See Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir.1999) (“Statements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment.”). For the foregoing reasons, I" } ]

[ { "docid": "22302761", "title": "", "text": "the motions of HUD and Kenmore for summary judgment. The court adopted the magistrate’s recommendations, 601 F.Supp. 38 (D.Mass.1984). The Bank appeals. We agree with the Bank that the award of summary judgment was legally improper; and, we remand the case for further proceedings. 1. Our basic task on this appeal is to decide whether the argument between the Bank and the defendants about the interpretation of the contract raises any “genuine issue as to any material fact.” Fed.R. Civ.P. 56(c). We note that cases discussing ‘interpretation’ of a contract sometimes refer to such an issue as one of “law” and sometimes as one of “fact.” See, e.g., Ed monds v. United States, 642 F.2d 877, 881 (1st Cir.1981); Gillentine v. McKeand, 426 F.2d 717, 721 (1st Cir.1970); Rizzo v. Cunningham, 303 Mass. 16, 20 N.E.2d 471, 474 (1939). Thus we explain at the outset how we view the fact/law dichotomy in the context of this summary judgment appeal. In our opinion, an argument between parties about the meaning of a contract is typically an argument about a “material fact,” namely, the factual meaning of the contract. But, sometimes this type of argument raises “no genuine issue.” The words of a contract may be so clear themselves that reasonable people could not differ over their meaning. Then, the judge must decide the issue himself, just as he decides any factual issue in respect to which reasonable people cannot differ. See 3 Corbin on Contracts § 554 (1960). Courts, noting that the judge, not the jury, decides such a threshold matter, have sometimes referred to this initial question of language ambiguity as a question of “law,” which we see as another way of saying that there is no “genuine” factual issue left for a jury to decide. See Edmonds v. United States, supra; Rizzo v. Cunningham, supra. Even if there is ambiguity in the language, however, the evidence presented about the parties’ intended meaning may be so one-sided that no reasonable person could decide the contrary. See 3 Corbin on Contracts, supra. In such a circumstance, the judge also would take" } ]

[ { "docid": "23200736", "title": "", "text": "claim in respect to a disability that did not materialize until sometime in 1989 at the earliest. II. DISCUSSION After careful examination of the record, the briefs, and the applicable law, we hold that the severance agreement made no provision for extended participation in the LTD Plan. Consequently, Smart’s appeal fails. For ease in explanation, we divide our analysis into moieties. A. The Severance Agreement. Appellant argues that the terms of the severance agreement did not include a surrender of Plan benefits, but that, to the exact contrary, the parties intended to permit appellant to enjoy such benefits as part of the consideration tendered by Gillette for the release. We approach this contention mindful that the December 16 letter agreement, signed by both parties, represents a contract between Smart and Gillette that potentially affects rights protected by the Employee Retirement Income Security Act (ERISA), 29 U.S.C. §§ 1001-1461 (1988), and, thus, is likely subject to interpretation in accordance with tenets of federal common law. See Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 56, 107 S.Ct. 1549, 1557, 95 L.Ed.2d 39 (1987). In construing the terms of contracts that are governed by federal common law, we are guided by “common-sense canons of contract interpretation.” Burnham v. Guardian Life Ins. Co., 873 F.2d 486, 489 (1st Cir.1989). One such canon teaches that contracts containing unambiguous language must be construed according to their plain and natural meaning. See id. “Contract language is usually considered ambiguous where an agreement’s terms are inconsistent on their face or where the phraseology can support reasonable differences of opinion as to the meaning of the words employed and obligations undertaken.” Fashion House, Inc. v. K mart Corp., 892 F.2d 1076, 1083 (1st Cir.1989). Interpreting unambiguous terms is an activity that requires judges to expound the law rather than to find the facts, and, therefore, a trial court’s interpretive determinations are subject to plenary review. See, e.g., Allen v. Adage, Inc., 967 F.2d 695, 698 (1st Cir.1992). In most cases, the question of whether a contract term is ambiguous also presents a question of law subject to" }, { "docid": "3979879", "title": "", "text": "a point of law. The parties in this case agree that the Contract plays a pivotal part in determining the existence vel non of section 4105 immunity. They disagree, however, about whether their dispute over its interpretation presents a question of law that may be decided by a court on summary judgment, or, instead, presents a question of fact that precludes the granting of a Rule 56 motion. This disagreement is couched in terms that are reminiscent of a familiar set of legal rules — rules which provide, in general, that a contract can be interpreted by the court on summary judgment if (a) the contract’s terms are clear, or (b) the evidence supports only one construction of the controverted provision, notwithstanding some ambiguity. See Allen v. Adage, Inc., 967 F.2d 695, 698 (1st Cir.1992); Boston Five Cents Sav. Bank v. Secretary of Dep’t of HUD, 768 F.2d 5, 8 (1st Cir.1985). The initial step in this pavane — the question of whether a contract is ambiguous-— presents a question of law for the judge. See United States Liab. Ins. Co. v. Selman, 70 F.3d 684, 687 (1st Cir.1995); Allen, 967 F.2d at 698. If the court finds no ambiguity, it should proceed to interpret the contract— and it may do so at the summary judgment stage. See, e.g., In re Newport Plaza Assocs., 985 F.2d 640, 644 (1st Cir.1993); J.I. Corp. v. Federal Ins. Co., 920 F.2d 118, 119 (1st Cir.1990). If, however, the court discerns an ambiguity, the next step — involving an examination of extrinsic evidence — becomes essential. The taking of this second step.does not automatically preclude brevis disposition. Summary judgment may be appropriate even if ambiguity lurks as long as the extrinsic evidence presented to the court supports only one of the conflicting interpretations. See Allen, 967 F.2d at 698; America First Inv. Corp. v. Goland, 925 F.2d 1518, 1522 (D.C.Cir.1991); see also Boston Five; 768 F.2d at 8 (approving summary judgment if “the evidence presented about the parties’ intended meaning [is] so one-sided that no reasonable person could decide the contrary”). On the other" }, { "docid": "2286065", "title": "", "text": "that expressio unius can aid in contract interpretation, we agree with Pittston that the principle of expressio unius is not violated by affording the language of the preamble its most natural meaning. In our view, the most natural meaning of the language “under all- sections of this policy” is that the “terms and conditions” are incorporated under “all sections” — that is, all sections of Parts One and Two — rather than solely under “all sections of Part Two.” This interpretation of the preamble would provide for all general “terms and conditions” to apply to all grants of coverage in Part One and Part Two. Beyond its reliance on the language and architecture of the policies, the district court looked to extrinsic evidence to support its conclusion that the policies did not provide stand-alone pollution coverage. We have noted that “extrinsic evidence of the negotiations, conduct and other circumstances of the parties is important to a court’s analysis of whether an agreement is ambiguous only to the extent, if any, that such evidence provides ‘objective indicia that, from the linguistic reference point of the parties, the terms of the contract are susceptible of different meanings.’” American Cyanamid Co. v. Fermenta Animal Health Co., 54 F.3d 177, 181 (3d Cir.1995). After independently reviewing the extrinsic evidence here, we find that it does little to clear-up the ambiguity. Accordingly, while we acknowledge that the court’s construction of the contract is reasonable, we conclude that Pittston’s construction is reasonable as well. Thus, Pitt-ston has established that the policies are ambiguous. As such, the district court’s entry of summary judgment, sua sponte, in favor of the insurers was inappropriate. See Sumitomo Mach. Corp. of Amer., Inc., 81 F.3d at 335 (“When a contract is ambiguous, the ‘fact-finder must attempt to discover what the contracting parties ... intended[the disputed provisions] to mean.’ ”) (quoting Teamsters Indus. Emp. Welfare Fund v. Rolls-Royce, 989 F.2d 132, 136 (3d Cir. 1993)); In re Newport Plaza Assocs., 985 F.2d 640, 644 (1st Cir.1993) (stating that “the interpretation of [ambiguous] contract language, itself acknowledged, becomes a question of fact for" }, { "docid": "2286066", "title": "", "text": "indicia that, from the linguistic reference point of the parties, the terms of the contract are susceptible of different meanings.’” American Cyanamid Co. v. Fermenta Animal Health Co., 54 F.3d 177, 181 (3d Cir.1995). After independently reviewing the extrinsic evidence here, we find that it does little to clear-up the ambiguity. Accordingly, while we acknowledge that the court’s construction of the contract is reasonable, we conclude that Pittston’s construction is reasonable as well. Thus, Pitt-ston has established that the policies are ambiguous. As such, the district court’s entry of summary judgment, sua sponte, in favor of the insurers was inappropriate. See Sumitomo Mach. Corp. of Amer., Inc., 81 F.3d at 335 (“When a contract is ambiguous, the ‘fact-finder must attempt to discover what the contracting parties ... intended[the disputed provisions] to mean.’ ”) (quoting Teamsters Indus. Emp. Welfare Fund v. Rolls-Royce, 989 F.2d 132, 136 (3d Cir. 1993)); In re Newport Plaza Assocs., 985 F.2d 640, 644 (1st Cir.1993) (stating that “the interpretation of [ambiguous] contract language, itself acknowledged, becomes a question of fact for the jury rather than a question of law for the judge”); RCI Northeast Servs. Div. v. Boston Edison Co., 822 F.2d 199, 202 (1st Cir.1987) (explaining that when the “plain meaning of a contract phrase does not spring unambiguously from the page or from the context, its proper direction becomes one for the factfinder, who must ferret out the intent of the parties”). Accordingly, we will reverse the order of the district court and remand for trial on the question of whether the CMLP policies provide coverage for Pittston’s liability to Ultramar. C. Are Pittston’s Claims Barred by the “Known Loss” Doctrine? In addition to holding that the CMLP policies do not provide coverage for remediation of Tankport, the district court stated: “For the reasons discussed below, the known loss theory would provide an alternative ground for dismissing the case against Pittston’s marine insurers.” Pittston, 905 F.Supp. at 1327. In deciding the insurers’ motion for summary judgment, the district court determined that the pre-1979 evidence was not as conclusive as to Pittston’s knowledge of the" }, { "docid": "22038513", "title": "", "text": "the court on summary judgment if (a) the contract’s terms are clear, or (b) the evidence supports only one construction of the controverted provision, notwithstanding some ambiguity. The initial step in this pavane — the question of whether a contract is ambiguous — presents a question of law for the judge. If the court finds no ambiguity, it should proceed to interpret the contact — and it may do so at the summary judgment stage. If, however, the court discerns an ambiguity, the next step— involving an examination of extrinsic evidence — becomes essential. The taking of this second step does not automatically preclude brevis disposition. Summary judgment may be appropriate even if ambiguity lurks as long as the extrinsic evidence presented to the court supports only one of the conflicting interpretations. On the other hand, if the extrinsic evidence relevant to the interpretation of an ambiguous contractual provision is contested or contradictory, summary judgment will often be inappropriate. Torres Vargas v. Santiago Cummings, 149 F.3d 29, 33 (1st Cir.1998) (internal citations and quotations omitted) (analyzing an ERISA contract); see Boston Five Cents Savings Bank v. HUD, 768 F.2d 5, 8 (1st Cir.1985) (observing that even if there is ambiguity in the language of a contract, the evidence presented about the parties’ intent may be so one-sided that no reasonable person could decide the contrary) (citing 3 Corbin on Contracts § 554 (1960)); see also Terry Barr Sales Agency, Inc. v. All-Lock Co., 96 F.3d 174, 179 (6th Cir. 1996) (observing that summary judgment is proper in contract actions when documents or evidence underlying the contract are undisputed and there is no question as to intent) (applying Michigan law); Parrett v. American Ship Building Co., 990 F.2d 854, 858 (6th Cir.1993) (same)(ERISA action). In other words, in the summary judgment context, the mere incantation of “ambiguity” by the nonmovant does not satisfy its burden under Rule 56. The nonmoving party must present evidence to support a reasonable interpretation that differs from the moving party. To be sure, this squares with the concept of legal ambiguity, which presupposes two or more" }, { "docid": "22038512", "title": "", "text": "other grounds, 67 Ohio St.3d 500, 620 N.E.2d 809 (1993); see also Bivens Gardens Office Building, Inc. v. Barnett Banks, 140 F.3d 898, 911 (11th Cir.1998) (noting that the foremost goal of contract construction is to give effect to the parties’ intent, and that the rule of construction that ambiguities are to be construed against the drafter is “something of a fallback canon”). We review the district court’s legal conclusions de novo. See Potty 938 F.2d at 647. Before turning to the individual policies, we need to address the resounding refrain of GenCorp’s ambiguities arguments; namely, that the Excess Policies are ambiguous because there are missing terms, and that because ambiguities exist, summary judgment is ipso facto improper. This argument is flawed because it ignores the interface between substantive contract law principles and the procedural standards of Fed.R.Civ.P. 56. We And the following interpretative framework helpful: This disagreement is couched in terms that are reminiscent of a familiar set of legal rules — rules which provide, in general, that a contract can be interpreted by the court on summary judgment if (a) the contract’s terms are clear, or (b) the evidence supports only one construction of the controverted provision, notwithstanding some ambiguity. The initial step in this pavane — the question of whether a contract is ambiguous — presents a question of law for the judge. If the court finds no ambiguity, it should proceed to interpret the contact — and it may do so at the summary judgment stage. If, however, the court discerns an ambiguity, the next step— involving an examination of extrinsic evidence — becomes essential. The taking of this second step does not automatically preclude brevis disposition. Summary judgment may be appropriate even if ambiguity lurks as long as the extrinsic evidence presented to the court supports only one of the conflicting interpretations. On the other hand, if the extrinsic evidence relevant to the interpretation of an ambiguous contractual provision is contested or contradictory, summary judgment will often be inappropriate. Torres Vargas v. Santiago Cummings, 149 F.3d 29, 33 (1st Cir.1998) (internal citations and quotations omitted)" }, { "docid": "6789642", "title": "", "text": "entirely dispositive. Accordingly, the court granted summary judgment. We review an order granting summary judgment de novo, reading the record “in the light most congenial to the nonmovant and resolving all reasonable inferences in that party’s favor.” Hachikian v. FDIC, 96 F.3d 502, 504 (1st Cir.1996). To affirm such an order, we must be satisfied that there is no genuine dispute concerning any material fact and that the movant is entitled to judgment as a matter of law. See Burnham, v. Guardian Life Ins. Co., 873 F.2d 486, 488 (1st Cir.1989). Demonstrating the existence of a trialworthy issue demands “more than effusive rhetoric and optimistic surmise.” Cadle Co. v. Hayes, 116 F.3d 957, 960 (1st Cir.1997). The crux of the appellant’s argument involves the interpretation of the release. We have recognized that summary judgment is an appropriate vehicle for resolving contract-interpretation disputes when the contract language is not infected by some material ambiguity. See Newport Plaza Assocs. v. Durfee Attleboro Bank (In re Newport Plaza Assocs.), 985 F.2d 640, 644 (1st Cir.1993); FDIC v. Singh, 977 F.2d 18, 21 (1st Cir.1992); see also Fashion House, Inc. v. K mart Corp., 892 F.2d 1076, 1083 (1st Cir.1989) (explicating the same rule in directed verdict context). On this basis, summary judgment was proper here. The question whether a contract term is ambiguous is one of law for the judge. See, e.g., Allen v. Adage, Inc., 967 F.2d 695, 698 (1st Cir.1992); Town of Lisbon v. Thayer Corp., 675 A.2d 514, 516 (Me.1996). In this instance, the appellant’s principal point is that he did not intend to release the particular Rust entities that he sued from tort liability by settling his workers’ compensation claim with Allegheny; and that, in all events, the release of “Rust Engineering” is ambiguous, because ho single company bears that exact name. To be sure, some names are close: Allegheny is a wholly-owned subsidiary of Rust Engineering Company (now known as TRECO Construction Services, Inc.), and, since March of 1995, a firm called Rust Engineering & Construction, Inc. (formerly Rust International Corporation) has been in existence. In the appellant’s" }, { "docid": "23619696", "title": "", "text": "plaintiff must establish the existence of a factual controversy that is both genuine and material. Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990). To carry this burden, the plaintiff must “affirmatively point to specific facts that demonstrate the existence of an authentic dispute.” McCarthy, 56 F.3d at 315. We review the district court’s entry of summary judgment de novo. Suarez v. Pueblo Int’l, Inc., 229 F.3d 49, 53 (1st Cir.2000). Thus, we are not wed to the district court’s reasoning but may affirm its order on any independently sufficient ground. Houlton Citizens’ Coalition v. Town of Houlton, 175 F.3d 178, 184 (1st Cir.1999); Polyplastics, Inc. v. Transconex, Inc., 827 F.2d 859, 860-61 (1st Cir.1987). In conducting our analysis, this court — like the district court — must scrutinize the record in the light most favorable to the party opposing summary judgment and indulge all reasonable inferences in that party’s favor. Garside, 895 F.2d at 48. These principles have a nuanced application when a motion for summary judgment hinges upon an issue of contract interpretation. In that type of situation, we have counseled that: While an argument between parties about the meaning of a contract is typically an argument about a “material fact,” summary judgment is not necessarily foreclosed. Even if there is ambiguity in the language ... the evidence presented about the parties’ intended meaning may be so one-sided that no reasonable person could decide the contrary. Allen v. Adage, Inc., 967 F.2d 695, 698 (1st Cir.1992) (citations omitted). Accordingly, summary judgment may lie against a party who fails adequately to support its proposed interpretation of a purportedly ambiguous contract term. See, e.g., In re Newport Plaza Assocs., 985 F.2d 640, 645 (1st Cir.1993); FDIC v. Singh, 977 F.2d 18, 21 (1st Cir.1992); see also Edmonds v. United States, 642 F.2d 877, 881 (1st Cir.1981) (holding that there must be more than one “plausible definition” of contractual language to create a fact question). III. THE CONTRACT INTERPRETATION CLAIMS A stock warrant is an instrument that grants the warrantholder an option to purchase shares of stock at a" }, { "docid": "6671859", "title": "", "text": "922, 928 (1st Cir.1983); see Mack v. Great Atlantic & Pacific Tea Co., 871 F.2d 179, 181 (1st Cir.1989), subject, nevertheless, to the caveat that the court “must disregard improbable or overly attenuated inferences, unsupported conclusions, and rank speculation.” Abbott, 107 F.3d at 938. Where, as here, the parties have filed cross motions for summary judgment, the two motions must be considered independently, with all inferences drawn in favor of plaintiff with respect to defendant’s motions and in favor of defendant with respect to plaintiff’s motions. IY. ANALYSIS A. Plaintiffs Motion for Summary Judgment Regarding an Unauthorized Deduction There are two analytical components to the question whether BioChem remains liable to ITL for the £85,100.85 which it withheld from its July 1992 payment. First, there is the question whether ITL’s claim survived the execution of the Settlement Agreement. This is a conventional issue of contract con struction. If the language of the Settlement Agreement unambiguously expresses an intent to preserve ITL’s claim for the £85,-100.85 deduction, then, as a matter of law, this claim survived the Settlement Agreement. Conversely, if it is clear from the language of the Settlement Agreement that the parties did not intend to preserve such claim, then, as a matter of law, it did not survive. Finally, if the language of the Settlement Agreement is ambiguous, then the issue of whether the claim survived presents a question of fact for the jury, unless the extrinsic evidence in the summary judgment record regarding intent is so one-sided that a reasonable jury could come out only one way. See Den Norske Bank A.S. v. First National Bank of Boston, et al., 75 F.3d 49, 53 (1st Cir.1996) (stating that a dispute between parties over the meaning of an ambiguous contract is normally an issue for the factfinder “unless the extrinsic evidence presented about the parties intended meaning is so one-sided that no reasonable person could decide to the contrary”), quoting Allen v. Adage, Inc., 967 F.2d 695, 698 (1st Cir.1992). For reasons discussed below, the language of the Settlement Agreement is ambiguous and the extrinsic evidence is not" }, { "docid": "8702793", "title": "", "text": "possess and caused a breach of contract. The initial inquiry for the Court is whether Mendez can prove the existence of a contract with any of the Suppliers under which the Suppliers granted it rights as exclusive distributor in Puerto Rico. Where the terms of a contract are unambiguous, their literal meaning must be applied and their construction is a question of law appropriate for summary judgment. W.B. v. Matula, 67 F.3d 484, 497 (3d Cir.1995) (citations omitted); Innovation Marketing v. Tuffcare, Inc., 31 F.Supp.2d 218, 222 (D.P.R.1998). Where a contract is ambiguous, the intent of the parties is a question of fact for the jury. Sumitomo Mach. Corp. of America v. AlliedSignal, Inc., 81 F.3d 328, 335 (3d Cir.1996); In re Newport Plaza Assocs., 985 F.2d 640, 644 (1st Cir.1993). Contract interpretation often presents mixed questions of law and fact. Servicios Comerciales Andinos, S.A. v. General Elec. Del Caribe, Inc., 145 F.3d 463, 469 (1st Cir.1998). A dispute about the factual narrative giving rise to the alleged contract is a question of fact, and therefore should be decided by the jury. Ram Const. Co. v. American States Ins. Co., 749 F.2d 1049, 1052 (3d Cir.1984). Here, Mendez claims that it was exclusive distributor for each Supplier in Puerto Rico. In several of the cases, DiGiorgio and Grande dispute whether such a contract with such a right exists. The Court will examine each alleged contract. a.Bumble Bee Bumble Bee and Mendez entered into an agreement naming Mendez as Bumble Bee’s exclusive distributor in Puerto Rico in 1993. Bumble Bee was purchased in 1997 by IHP. Mendez claims that IHP assumed Bumble Bee’s contractual obligations and offers several pieces of correspondence purporting to show that the distributorship continues to exist. DiGior-gio and Grande dispute Mendez’s assertion, attacking Mendez’s interpretation of the evidence and pointing to several other pieces of correspondence that they claim indicate that IHP, rather than assuming the Bumble Bee-Mendez contract, terminated the distributorship sometime after acquiring Bumble Bee. The Court may not and will not attempt to weigh the credibility of the evidence offered by the parties. Mendez" }, { "docid": "6789643", "title": "", "text": "977 F.2d 18, 21 (1st Cir.1992); see also Fashion House, Inc. v. K mart Corp., 892 F.2d 1076, 1083 (1st Cir.1989) (explicating the same rule in directed verdict context). On this basis, summary judgment was proper here. The question whether a contract term is ambiguous is one of law for the judge. See, e.g., Allen v. Adage, Inc., 967 F.2d 695, 698 (1st Cir.1992); Town of Lisbon v. Thayer Corp., 675 A.2d 514, 516 (Me.1996). In this instance, the appellant’s principal point is that he did not intend to release the particular Rust entities that he sued from tort liability by settling his workers’ compensation claim with Allegheny; and that, in all events, the release of “Rust Engineering” is ambiguous, because ho single company bears that exact name. To be sure, some names are close: Allegheny is a wholly-owned subsidiary of Rust Engineering Company (now known as TRECO Construction Services, Inc.), and, since March of 1995, a firm called Rust Engineering & Construction, Inc. (formerly Rust International Corporation) has been in existence. In the appellant’s view, these close, but inexact, corporate names merely highlight the pervasive ambiguity. It is black-letter law that the meaning of an unambiguous writing must be derived exclusively from within its four corners. See Portland Valve, Inc. v. Rockwood Systems Corp., 460 A.2d 1383, 1387 (Me.1983). Thus, a contracting party’s professed intent cannot contradict the inexorable purport of written contractual provisions. See Newport Plaza Assocs., 985 F.2d at 646-47. Here, the language of the release is broad, enveloping, and, in the final analysis, perfectly plain. The proliferation of “Rusts” adds a complicating note, but it does not engender any material ambiguity. No matter which company the label “Rust Engineering” signifies, the release goes on to shield all “related companies.” By any interpretation, then, the Rust entities that the appellant sued are within the shelter afforded by the release. The appellant’s fallback position is no more tenable. He suggests that the third-person plural possessive “their” (as in “their subsidiaries, successors, and related companies”) refers solely to the singular “American Fidelity/MGA.” This suggestion not only comes perilously close" }, { "docid": "22449422", "title": "", "text": "action is to be given its plain meaning. Burnham, 873 F.2d at 489. Determining whether contract language is ambiguous is also a question of law, and contract language is ambiguous if the terms are inconsistent on their face, or if the terms allow reasonable but differing interpretations of their meaning. Federal Deposit Ins. Corp. v. Singh, 977 F.2d 18, 22 (1st Cir.1992); Fashion House, Inc., 892 F.2d at 1083. If the language of the contract is ambiguous, we turn to surrounding circumstances, undisputed extrinsic evidence, to divine the parties' intent. Lumpkin v. Envirodyne Industries, Inc., 933 F.2d 449, 456 (7th Cir.), cert. denied, — U.S. —, 112 S.Ct. 373, 116 L.Ed.2d 324 (1991) (interpreting a release in an ERISA action); Restatement (Second) of Trusts § 24 cmt. b, and § 164 cmt. e (1959). Unlike the interpretation of ambiguous terms in insurance policies which uses the doctrine of contra proferentem, when interpreting severance pay plans in the ERISA context, we generally do not construe ambiguous terms against the drafter. Allen, 967 F.2d at 701. Summary judgment based upon the construction of contract language is appropriate only if the meaning of the language is clear, considering all the surrounding circumstances and undisputed evidence of intent, and there is no genuine issue as to the inferences which might reasonably be drawn from the language. Healy v. Rich Products Corp., 981 F.2d 68, 72 (2d Cir.1992) (quoting Science Corp. v. Rochdale Village, Inc., 920 F.2d 147, 151 (2d Cir.1990)); see also Singh, 977 F.2d 18, 21 (1st Cir.1992); Allen, 967 at 699, 701-02. The VSP Release and Application consists of two parts, (1) Application and (2) Full and Final Waiver and Release of Claims. The second section, entitled “Full and Final Waiver and Release of Claims,” states in pertinent part: In return for the benefits available to me under the VSP, the sufficiency of which is hereby acknowledged, I fully and finally waive, discharge and release any and all claims of whatsoever nature, known and unknown, other than my right to the enforcement of the terms of the VSP and my rights to" }, { "docid": "3979880", "title": "", "text": "See United States Liab. Ins. Co. v. Selman, 70 F.3d 684, 687 (1st Cir.1995); Allen, 967 F.2d at 698. If the court finds no ambiguity, it should proceed to interpret the contract— and it may do so at the summary judgment stage. See, e.g., In re Newport Plaza Assocs., 985 F.2d 640, 644 (1st Cir.1993); J.I. Corp. v. Federal Ins. Co., 920 F.2d 118, 119 (1st Cir.1990). If, however, the court discerns an ambiguity, the next step — involving an examination of extrinsic evidence — becomes essential. The taking of this second step.does not automatically preclude brevis disposition. Summary judgment may be appropriate even if ambiguity lurks as long as the extrinsic evidence presented to the court supports only one of the conflicting interpretations. See Allen, 967 F.2d at 698; America First Inv. Corp. v. Goland, 925 F.2d 1518, 1522 (D.C.Cir.1991); see also Boston Five; 768 F.2d at 8 (approving summary judgment if “the evidence presented about the parties’ intended meaning [is] so one-sided that no reasonable person could decide the contrary”). On the other hand, if “the extrinsic evidence relevant to the interpretation of an ambiguous contractual provision is contested or contradictory, summary judgment will often be inappropriate.” Allen, 967 F.2d at 698 n. 3. This analytic framework is useful when the parties to a contract are dueling over its meaning and attempt to offer parol evidence to clarify their intent. See, e.g., id. at 698-99; Foster Med. Corp. Employees’ Pension Plan v. Healthco, Inc., 753 F.2d 194, 198 (1st Cir.1985). Here, however, the framework simply does not fit, for the question is not what any particular provision of the Contract means — indeed, one of the contracting parties (the Department) is not involved in this lawsuit — but, rather, whether the Contract as a whole establishes (or helps to establish) an employer-employee relationship sufficient to confer immunity under section 4105. In such circumstances, the meaning of the contract is for the court. See, e.g., Williams v. United States, 50 F.3d 299, 305-07 (4th Cir.1995) (appraising contract between the government' and a third party, to determine the existence of" }, { "docid": "22129886", "title": "", "text": "Cir. 1992). In this instance, the appellants confuse matters of fact with matters of law. It is for the court, not the jury, to ascertain whether the terms of an integrated agreement are unambiguous, and if so, how to construe those terms. See Allen v. Adage, Inc., 967 F.2d 695, 698 (1st Cir.1992). “In this sense, questions about the meaning of contractual provisions are questions of law, and we review the district court’s answers to them de novo.” United States Liab. Ins. Co. v. Selman, 70 F.3d 684, 687 (1st Cir.1995). The appellants try to bypass these familiar rules by portraying the non-standard workweek article as freighted with ambiguity. But a contract is not ambiguous merely because a party to it, often with a rearward glance colored by self-interest, disputes an interpretation that is logically compelled. See FDIC v. Singh, 977 F.2d 18, 22 (1st Cir.1992). Nor must a contract “negate every possible construction of its terms in order to be unambiguous.” Triple-A Baseball Club Assocs. v. Northeastern Baseball, Inc., 832 F.2d 214, 220 (1st Cir.1987) (quoting Waxler v. Waxler, 458 A.2d 1219, 1224 (Me. 1983)), cert. denied, 485 U.S. 935, 108 S.Ct. 1111, 99 L.Ed.2d 272 (1988). Rather, a contract is ambiguous only when its terms lend themselves to more than one reasonable interpretation. See Fashion House, Inc. v. K mart Corp., 892 F.2d 1076, 1083 (1st Cir. 1989); RCI Northeast Servs. Div. v. Boston Edison Co., 822 F.2d 199, 202 (1st Cir.1987); American Policyholders’ Ins. Co. v. Kyes, 483 A.2d 337, 340 (Me.1984). The specific provision at issue here — the non-standard workweek article — most assuredly is not a model of syntax; indeed, it appears to create a tautology in defining which classes of employees qualify for the non-standard pay premium. Yet the circle formed by the contract language is virtuous rather than vicious, and does not render the text ambiguous. Read as a whole, the article can sustain only one reasonable interpretation. Section 1 provides that the employee classifications listed in section 3 (e.g., probation officers) must meet each of three criteria (exemption from FLSA coverage," }, { "docid": "22129885", "title": "", "text": "“genuine” connotes that the evidence on the point is such that a reasonable jury, drawing favorable inferences, could resolve the fact in the manner urged by the nonmoving party, and “material” connotes that a contested fact has the potential to alter the outcome of the suit under the governing law if the controversy over it is resolved satisfactorily to the nonmovant. See United States v. One Parcel of Real Property (Great Harbor Neck, New Shoreham, R.I.), 960 F.2d 200, 204 (1st Cir. 1992). The happenstance that both parties move simultaneously for brevis disposition does not, in and of itself, relax the taut line of inquiry that Rule 56 imposes. “Barring special circumstances, the nisi prius court must consider each motion separately, drawing inferences against each movant in turn.” EEOC v. Steamship Clerks Union, Local 1066, 48 F.3d 594, 603 n. 8 (1st Cir.), cert. denied, — U.S. -, 116 S.Ct. 65, 133 L.Ed.2d 27 (1995). Matters of law, however, are for the court to resolve. See Stauble v. Warrob, Inc., 977 F.2d 690, 693 (1st Cir. 1992). In this instance, the appellants confuse matters of fact with matters of law. It is for the court, not the jury, to ascertain whether the terms of an integrated agreement are unambiguous, and if so, how to construe those terms. See Allen v. Adage, Inc., 967 F.2d 695, 698 (1st Cir.1992). “In this sense, questions about the meaning of contractual provisions are questions of law, and we review the district court’s answers to them de novo.” United States Liab. Ins. Co. v. Selman, 70 F.3d 684, 687 (1st Cir.1995). The appellants try to bypass these familiar rules by portraying the non-standard workweek article as freighted with ambiguity. But a contract is not ambiguous merely because a party to it, often with a rearward glance colored by self-interest, disputes an interpretation that is logically compelled. See FDIC v. Singh, 977 F.2d 18, 22 (1st Cir.1992). Nor must a contract “negate every possible construction of its terms in order to be unambiguous.” Triple-A Baseball Club Assocs. v. Northeastern Baseball, Inc., 832 F.2d 214, 220 (1st" }, { "docid": "23200737", "title": "", "text": "107 S.Ct. 1549, 1557, 95 L.Ed.2d 39 (1987). In construing the terms of contracts that are governed by federal common law, we are guided by “common-sense canons of contract interpretation.” Burnham v. Guardian Life Ins. Co., 873 F.2d 486, 489 (1st Cir.1989). One such canon teaches that contracts containing unambiguous language must be construed according to their plain and natural meaning. See id. “Contract language is usually considered ambiguous where an agreement’s terms are inconsistent on their face or where the phraseology can support reasonable differences of opinion as to the meaning of the words employed and obligations undertaken.” Fashion House, Inc. v. K mart Corp., 892 F.2d 1076, 1083 (1st Cir.1989). Interpreting unambiguous terms is an activity that requires judges to expound the law rather than to find the facts, and, therefore, a trial court’s interpretive determinations are subject to plenary review. See, e.g., Allen v. Adage, Inc., 967 F.2d 695, 698 (1st Cir.1992). In most cases, the question of whether a contract term is ambiguous also presents a question of law subject to plenary review. See id.; see also RCI Northeast Servs. Div. v. Boston Edison Co., 822 F.2d 199, 202 (1st Cir.1987). If an inquiring court concludes that an ambiguity exists in a contract, the ultimate resolution of it typically will turn on the parties’ intent. Exploring the intent of contracting parties often (but not always) involves marshalling facts extrinsic to the language of the contract documents. When this need arises, these facts, together with the reasonable inferences extractable therefrom, are together superimposed on the ambiguous words to reveal the parties’ discerned intent. This construct ordinarily requires the judge in a non-jury case to resolve questions of fact rather than questions of law. See In re Newport Plaza Assocs., 985 F.2d 640, 645 (1st Cir.1993) (stating that “the interpretation of [ambiguous] contract language, itself acknowledged, becomes a question of fact for the jury rather than a question of law for the judge”); RCI Northeast, 822 F.2d at 202 (explaining that when “the plain meaning of a contract phrase does not spring unambiguously from the page or from" }, { "docid": "23619697", "title": "", "text": "contract interpretation. In that type of situation, we have counseled that: While an argument between parties about the meaning of a contract is typically an argument about a “material fact,” summary judgment is not necessarily foreclosed. Even if there is ambiguity in the language ... the evidence presented about the parties’ intended meaning may be so one-sided that no reasonable person could decide the contrary. Allen v. Adage, Inc., 967 F.2d 695, 698 (1st Cir.1992) (citations omitted). Accordingly, summary judgment may lie against a party who fails adequately to support its proposed interpretation of a purportedly ambiguous contract term. See, e.g., In re Newport Plaza Assocs., 985 F.2d 640, 645 (1st Cir.1993); FDIC v. Singh, 977 F.2d 18, 21 (1st Cir.1992); see also Edmonds v. United States, 642 F.2d 877, 881 (1st Cir.1981) (holding that there must be more than one “plausible definition” of contractual language to create a fact question). III. THE CONTRACT INTERPRETATION CLAIMS A stock warrant is an instrument that grants the warrantholder an option to purchase shares of stock at a fixed price. See Black’s Law Dict. 1441 (7th ed.1999); II James Cox et al., Corporations § 18.15 (1995 & 1999 Supp.); 6A William Meade Fletcher, Fletcher Cyclopedia of the Laic of Private Corps. § 2641 (perm, ed.1997); see also Tribble v. J.W. Greer Co., 88 F.Supp. 1015, 1022 (D.Mass.1949) (holding, under Massachusetts law, that a stock warrant is “a contract by which the corporation gives an irrevocable option to the holder to purchase authorized corporate stock within a period of time at a price and upon terms specified in the contract”). Against the backdrop of this well-established definition, we turn to the appellant’s contract interpretation claims. We divide our discussion into seven segments. A. Applicable Legal Principles. Time-honored principles of contract law govern our analysis. We begin with bedrock: the determination of whether a contract is ambiguous is a question of law within the province of the judge. Fashion House, Inc. v. K mart Corp., 892 F.2d 1076, 1083 (1st Cir.1989); RCI N.E. Servs. Div. v. Boston Edison Co., 822 F.2d 199, 202 (1st Cir.1987)." }, { "docid": "20373869", "title": "", "text": "of fact, however, there is sometimes no genuine issue as to whether the parties’ conduct implied a “contractual understanding.” The words and actions that allegedly formed a contract may be “ ‘so clear themselves that reasonable people could not differ over their meaning.’ ” FDIC v. Singh, 977 F.2d 18, 21 (1st Cir.1992) (quoting Boston Five Cents Sav. Bank v. Secretary of Dep’t of HUD, 768 F.2d 5, 8 (1st Cir.1985)). In such eases, “the judge must decide the issue himself, just as he decides any factual issue in respect to which reasonable people cannot differ.” Boston Five Cents Sav. Bank, 768 F.2d at 8¡ Even if the language of a purported contract is ambiguous, summary judgment is appropriate when the extrinsic evidence about the parties’ meaning is “ ‘so one-sided that no reasonable person could decide the contrary.’ ” Allen v. Adage, Inc., 967 F.2d 695, 698 (1st Cir.1992) (quoting Boston Five Cents Sav. Bank, 768 F.2d at 8). A corollary of this last proposition is that even if the language of purported assent is susceptible of more than one reasonable interpretation, summary judgment is nevertheless appropriate if none of those interpretations would support the nonmovant’s legal argument. See O’Connor v. McKanna, 116 R.I. 627, 359 A.2d 350, 354 (1976) (stating that summary judgment must be denied if the factfinder “could reasonably adopt the opposing party’s version as to what was said and done and intended by the parties”); Knight v. Sharif, 875 F.2d 516, 523 (5th Cir.1989) (granting summary judgment in contract formation dispute where nonmovant was unable to “provide a plausible interpretation” of the documents at issue that would support his argument that a contract had been formed). Placed in the context of this case, Bourque can avoid summary judgment only if we are able to discern a reasonable interpretation of Cain’s June 23 letter that supports Bourque’s legal argument — that Cain’s June 23 letter constituted an unequivocal offer to sell Bourque the Property for $130,000. This we are unable to do. B. The Law of Offers An offer is a “manifestation of willingness to enter" }, { "docid": "3979878", "title": "", "text": "(3) used only the government’s facilities, equipment, supplies, and personnel in rendering services, (4) received protection against malpractice suits at the employer’s expense, and (5) enjoyed relatively little autonomy in practice management. See, e.g., Rivera v. Hospital Universitario, 762 F.Supp. 15, 17-18 (D.P.R.1991). Of course, these factors are merely signposts. They are not of equal import: in performing the necessary triage, the principal focus should be on “the level of control contractually reserved to the governmental entity over the physician’s provision of patient services.” Nieves, 7 F.3d at 279. Moreover, no single factor possesses talis-manie significance. In the last analysis, a status determination in a particular ease inevitably hinges on the totality of the circumstances. See id. Therefore, an inquiring court must examine each physician’s contract and the surrounding circumstances to determine whether, according to the contract terms and other relevant evidence, the particular physician ranks as an employee of the government agency or other governmental instrumentality. See Flores Román, slip op. at 5-6. B. The Interpretive Framework. We pause at this juncture to clarify a point of law. The parties in this case agree that the Contract plays a pivotal part in determining the existence vel non of section 4105 immunity. They disagree, however, about whether their dispute over its interpretation presents a question of law that may be decided by a court on summary judgment, or, instead, presents a question of fact that precludes the granting of a Rule 56 motion. This disagreement is couched in terms that are reminiscent of a familiar set of legal rules — rules which provide, in general, that a contract can be interpreted by the court on summary judgment if (a) the contract’s terms are clear, or (b) the evidence supports only one construction of the controverted provision, notwithstanding some ambiguity. See Allen v. Adage, Inc., 967 F.2d 695, 698 (1st Cir.1992); Boston Five Cents Sav. Bank v. Secretary of Dep’t of HUD, 768 F.2d 5, 8 (1st Cir.1985). The initial step in this pavane — the question of whether a contract is ambiguous-— presents a question of law for the judge." }, { "docid": "20373868", "title": "", "text": "assent” by the parties to the agreement. See Restatement (Second) of Contracts § 17 (1981). Under Rhode Island’s law of contracts, we look to the parties’ words and actions to determine whether they have manifested the objective intent to promise or be bound. Smith v. Boyd, 553 A.2d 131, 133 (R.I.1989). This manifestation “almost invariably takes the form of an offer or proposal by one party accepted by the other party or parties.” McLaughlin v. Stevens, 296 F.Supp. 610, 613 (D.R.I.1969) (interpreting Rhode Island law). Determining whether there was mutual assent may involve factual questions: What did the parties say (or do) to manifest their intent? Were the parties’ understandings of each other’s actions reasonable under all the circumstances? Answering these questions is the province of the factfinder and not the court. See Salem Laundry Co. v. New England Teamsters and Trucking Indus. Pension Fund, 829 F.2d 278, 280 (1st Cir.1987) (stating that it is “a question of fact whether any particular conduct or actions imply a contractual understanding” (internal quotation omitted)). Like other questions of fact, however, there is sometimes no genuine issue as to whether the parties’ conduct implied a “contractual understanding.” The words and actions that allegedly formed a contract may be “ ‘so clear themselves that reasonable people could not differ over their meaning.’ ” FDIC v. Singh, 977 F.2d 18, 21 (1st Cir.1992) (quoting Boston Five Cents Sav. Bank v. Secretary of Dep’t of HUD, 768 F.2d 5, 8 (1st Cir.1985)). In such eases, “the judge must decide the issue himself, just as he decides any factual issue in respect to which reasonable people cannot differ.” Boston Five Cents Sav. Bank, 768 F.2d at 8¡ Even if the language of a purported contract is ambiguous, summary judgment is appropriate when the extrinsic evidence about the parties’ meaning is “ ‘so one-sided that no reasonable person could decide the contrary.’ ” Allen v. Adage, Inc., 967 F.2d 695, 698 (1st Cir.1992) (quoting Boston Five Cents Sav. Bank, 768 F.2d at 8). A corollary of this last proposition is that even if the language of purported assent" } ]

[ { "docid": "12734795", "title": "", "text": "CHOY, Circuit Judge: Max Sobel Wholesale Liquors (taxpayer) secretly transferred, as an added consideration for sales, extra liquor to some of its customers in fiscal 1973 and 1974 in violation of California law providing for minimum prices. The Commissioner of Internal Revenue (Commissioner) asserted that I.R.C. § 162(c)(2) disallowed the inclusion of the value of the extra liquor in taxpayer’s cost of goods sold; such disallowance would have increased taxpayer’s gross and taxable income. The Tax Court rejected the Commissioner’s assertion. 69 T.C. 477 (1977). We affirm. I. Exclusion vs. Deduction For good or ill, tax law distinguishes between exclusions from gross income (“above the line” items) and deductions from gross income (“below the line” items). See generally B. C. Cook & Sons v. Commissioner, 65 T.C. 422 (1975), aff’d, 584 F.2d 53 (5th Cir. 1978). “Gross income,” I.R.C. § 61, is determined by subtracting all “above the line” items from gross receipts. See Reg. § 1.61-3(a). The very definition of “gross income” has been thought to mandate the exclusion of certain amounts (e. g., the cost of goods sold) from that figure, even in the absence of specific statutory authority for such exclusion. “Gross income” minus allowable deductions equals “taxable income.” I.R.C. § 63. Deductions (e. g., for advertising costs) are a matter of legislative grace and exist only by virtue of specific legislation. New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440, 54 S.Ct. 788, 790, 78 L.Ed. 1348 (1934). Congress is free to create, abolish, or limit deductions, I.R.C. § 162(a) allows as a deduction “all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business.” Congress limited this deduction, however, by providing that No deduction shall be allowed under [§ 162(a)] for any payment made, directly or indirectly, to any person, if the payment constitutes an illegal bribe, illegal kickback, or other illegal payment under any law of the United States, or under any law of a State (but only if such State law is generally enforced), which subjects the payor to a criminal penalty or" } ]

[ { "docid": "18931992", "title": "", "text": "certain payments, which might otherwise be deductible under section 162(a), on account of the illegality of such payments. The Court must first decide whether the agreement between petitioner and its selected customers, whereby the stated invoice price of the spirits was subject to a credit for the purchase of additional merchandise, constituted an “illegal bribe, illegal kickback, or other illegal payment” otherwise deductible under section 162(a). The practice of illegally rebating did not originate with these San Francisco wholesale liquor dealers. This practice first came before the Tax Court in the case of rebates granted contrary to State law in the sale of milk. Pittsburgh Milk Co. v. Commissioner., 26 T.C. 707 (1956). The Pittsburgh Milk case was then invoked by the respondent to deny to the taxpayer, an Illinois liquor dealer, an adjustment in computing the World War II excess profit tax credit for an abnormal deduction for illegal rebates to its customers. Tri-State Beverage Distributors, Inc. v. Commissioner, 27 T.C. 1026 (1957). In the Pittsburgh Milk case (and the cases which followed that decision), this Court distinguished between a discount or rebate to which the customers became entitled at the time of sale and costs incurred in the form of illegal payments, or payments to the third parties, which were not made pursuant to agreement between the buyer and the seller. Where the rebate was a part of the transaction of sale, this Court held that the deductibility of such payment was not the question. The rebate was a reduction in gross income. This principle was reaffirmed in Atzingen-Whitehouse Dairy, Inc. v. Commissioner, 36 T.C. 173 (1961), wherein this Court said: Raum, Judge: (1) We have concluded on the evidence that the actual prices at which petitioner sold its products were the invoice prices minus the discounts agreed upon between petitioner and its customers. Accordingly, the problem before us is not whether such discounts are deductible as “ordinary and necessary” business expenses from gross income in arriving at net income, cf. Tank Truck Rentals v. Commissioner, 356 U.S. 30; rather it is whether the discounts must be taken" }, { "docid": "9965351", "title": "", "text": "as a deduction in the year in issue. Respondent’s position at the trial was based upon our opinions in B.C. Cook & Sons, Inc. v. Commissioner (Cook I), 59 T.C. 516 (1972), and B.C. Cook & Sons, Inc. v. Commissioner, (Cook II), 65 T.C. 422 (1975), affd. per curiam 584 F.2d 53 (5th Cir. 1978). In Cook I, the taxpayer was the victim of an embezzlement by its bookkeeper, who drew checks on the taxpayer’s account and falsely reflected them as purchases. The phony purchases were reflected in the taxpayer’s cost of goods sold for the years in which the funds were embezzled, thus reducing taxable income. Years later, when the taxpayer discovered the embezzlement, it took a theft loss deduction despite the fact that it had previously reduced taxable income by the same amounts for the prior years in which the embezzlement occurred. Some of the years during which the embezzlement occurred were closed by the statute of limitations. The Court held that because the taxpayer had “erroneously” used “nonexistent purchases” in computing cost of goods sold in prior years, it was proper to take the correct theft loss deduction in the year of discovery. Cook I, supra at 521. The opinion in Cook I suggested that the proper remedy for preventing double tax benefits is contained in the mitigation provisions of sections 1311-1315. Cook II was the result of the Government’s attempt to apply the mitigation provisions of sections 1311-1315 to disallow the cost of goods sold that the taxpayer had erroneously taken in years that would otherwise have been barred by the statute of limitations. In Cook II, we held that the mitigation provisions only apply to erroneous “deductions” taken in the prior years and that cost of goods sold, even when erroneously overstated, is not a “deduction” within the intent of the mitigation provisions. Thus, despite what we recognized as a double tax benefit, we found that the taxpayer “slips between the statutory cracks to gain an unwarranted tax advantage.” Cook II, 65 T.C. at 432. Cook I and Cook II were both Court-reviewed opinions in" }, { "docid": "2530576", "title": "", "text": "1120. “[T]he Commissioner has always recognized * * * that the cost of goods sold must be deducted from gross receipts in order to arrive at gross income.” Sullenger v. Commissioner, 11 T.C. 1076, 1077 (1948). The cost of goods sold during a year is determined by subtracting inventory on hand at the end of the year from the sum of the inventory on hand at the beginning of the year and the cost of purchases. See Schedule A, Form 1120. The use of inventories is a key feature of the accrual method of accounting. Inventories are intended to insure a clear reflection of the year’s income by matching sales during the taxable year with the costs attributable to those sales; costs attributable to inventory remaining on hand at the end of the year are not expensed in the year incurred but are, in effect, deferred until the year in which such inventory is sold. See Photo-Sonics, Inc. v. Commissioner, 357 F.2d 656, 657-658 (9th Cir. 1966), affg. 42 T.C. 926 (1964); All-Steel Equipment Inc. v. Commissioner, 54 T.C. 1749, 1751 (1970), affd. per curiam on this issue 467 F.2d 1184 (7th Cir. 1972). Where inventories are employed, purchases and sales must be computed on the accrual method (unless another method is authorized by the Commissioner) in order to avoid the distortion of income. Sec. 1.446-l(c)(2), Income Tax Regs.; Stoller v. United States, 162 Ct. Cl. 839, 845, 320 F.2d 310, 343 (1963). Section 1.446-l(c)(l)(ii), Income Tax Regs., describes the accrual method as follows: Generally, under an accrual method, income is to be included for the taxable year when all the events have occurred which fix the right to receive such income and the amount thereof can be determined with reasonable accuracy. Under such a method, deductions are allowable for the taxable year in which all the events have occurred which establish the fact of the liability giving rise to such deduction and the amount thereof can be determined with reasonable accuracy. * * * This description of the accrual method is repeated in the regulations under section 451, insofar" }, { "docid": "9965352", "title": "", "text": "of goods sold in prior years, it was proper to take the correct theft loss deduction in the year of discovery. Cook I, supra at 521. The opinion in Cook I suggested that the proper remedy for preventing double tax benefits is contained in the mitigation provisions of sections 1311-1315. Cook II was the result of the Government’s attempt to apply the mitigation provisions of sections 1311-1315 to disallow the cost of goods sold that the taxpayer had erroneously taken in years that would otherwise have been barred by the statute of limitations. In Cook II, we held that the mitigation provisions only apply to erroneous “deductions” taken in the prior years and that cost of goods sold, even when erroneously overstated, is not a “deduction” within the intent of the mitigation provisions. Thus, despite what we recognized as a double tax benefit, we found that the taxpayer “slips between the statutory cracks to gain an unwarranted tax advantage.” Cook II, 65 T.C. at 432. Cook I and Cook II were both Court-reviewed opinions in which there were dissents. Cook II was affirmed on appeal with the circuit court stating: Because of the inequity in the result of this decision, we have worked hard to construct a convincing reversal of the Tax Court. Try as we may, however, we have decided that we cannot reverse with a principled decision. We, therefore, affirm the Tax Court on the basis of its opinion. 65 T.C. 422 (1975). [B.C. Cook & Sons, Inc. v. Commissioner, 584 F.2d 53, 54 (5th Cir. 1978).] In National Home Products, Inc. v. Commissioner, 71 T.C. 501 (1979), we were confronted with a situation where the taxpayer had actually purchased and received goods that were then apparently stolen from its inventory. We held that the actual purchases in National Home Products distinguished it from Cook I and Cook II because in the latter situation the purchases were purely fictitious. We, therefore, held that the taxpayer in National Home Products properly reflected the stolen inventory as cost of goods sold in the year of the theft. National Home Products," }, { "docid": "18932004", "title": "", "text": "1076 (1948); Hofferbert v. Anderson Oldsmobile, 197 F.2d 504 (4th Cir. 1952). But surely the cost of merchandise that is not sold but is in fact given away, under whatever scheme may be devised, should not enter into the computation of profit or gross income from the disposition of merchandise in a transaction that produces no gross receipts. Illustrative of this principle are the cases that have held that a merchant who withdraws goods from his stock in trade for his own use may not include the cost of those goods in cost of goods sold. See Appeal of P. P. Sweeten v. Commissioner, 3 B.T.A. 37 (1925); Demor, Inc. v. Commissioner, T.C. Memo. 1968-279 (1968). See also City Ice Delivery Co. v. United States, 176 F.2d 347 (4th Cir. 1949), wherein it was held that an ice dealer could not include in cost of goods sold payments made to its supplier not to make ice in order to keep the retail price of ice up because it had not made an actual sale. It may be that the cost of the “credit” merchandise is a cost of doing business to petitioner but it must prove its deductibility in some way other than including it in cost of goods sold. I doubt that the majority would allow this credit as a deduction under section 162(c)(2). Since petitioner included in sales the entire list price of the merchandise actually sold I do not believe the principle espoused in Pittsburgh Milk Co. v. Commissioner, 26 T.C. 707 (1956), should be involved. Fay, Dawson, and Wiles, JJ., agree with this dissenting opinion. it is not clear whether the charge to cost of goods sold was made at the time of the sale or at the time the credit merchandise was delivered. This would make a difference only if the two events occurred in different taxable years. These and similar cases denied the exclusion from cost of goods sold of payments for goods in excess of amounts allowed by law. Here, of course, we are not concerned with illegal payments made by Sobel. The" }, { "docid": "18931998", "title": "", "text": "would find expression in the report of the Finance Committee accompanying the bill. No mention of any such intent is made in the report of the Finance Committee accompanying the bill. S. Rept. 92-437,92d Cong., 1st Sess. 72-73. Notwithstanding, respondent has changed his position in an effort to extend the statute to exclude bribes, kickbacks, and other illegal payments which might otherwise be chargeable to the cost of goods sold. See Rev. Rul. 77-244, 1977-29 I.R.B. 8. Section 1.61-3(a), Income Tax Regs., provides that amounts which are a type for which a deduction would be disallowed under section 162(c),(f), or (g) in the case of a business expense may not be deducted from gross receipts in order to arrive at gross income. Similarly, section 1.471-3(d), Income Tax Regs., provides that “cost shall not include an amount which is of a type for which a deduction would be disallowed under section 162(c) ,(f) or (g) and the regulations thereunder in the case of a business expense.” In our opinion, assuming the validity of the regulations, the rule stated would not apply in the case before the Court. Depending upon the nature of the business, the cost of goods sold may include material, labor, and overhead. There may be certain expenses of a dual character which may be chargeable either to overhead in the cost of goods sold or deducted as administrative or sales expense. In any event, the Court would limit the regulations as to preclude the deductibility of an illegal payment charged to overhead in the cost of sales of the type which might otherwise be deductible as administrative or sales expenses. A typical example would be a bribe given for the purpose of obtaining goods or for the purpose of expediting its delivery to the taxpayer for manufacture and resale. In the case before the Court, we are not confronted with that type of expense. In effect, the petitioner’s agreement with its selected customers provided for the sale of spirits priced at $102.50 for $100 or for the sale of 13 bottles of wine for the price of 12" }, { "docid": "9965350", "title": "", "text": "the oil that it purchased from Dalton and Galaxy, its purchases during the fiscal year ended January 31, 1981, would have been reduced by $846,488.25. Respondent determined that petitioner’s cost of goods sold should be reduced by this amount. Until shortly before trial, respondent had alleged that petitioner was a participant in the fraudulent scheme to mislabel its purchases as crude oil. This position was completely abandoned prior to trial and the parties now agree that petitioner did not know, and had no reason to know, of the falsification scheme during the year at issue. It follows then that petitioner was the victim of a scheme in which it was overcharged for purchases. At trial, respondent took the position that these fraudulent overcharges should not be allowed as cost of goods sold, but rather, should be deducted in a later year as a theft loss pursuant to section 165(e). Since a theft loss is not allowed under section 165(e) until the tax year in which it is discovered, respondent reasoned that it was not allowable as a deduction in the year in issue. Respondent’s position at the trial was based upon our opinions in B.C. Cook & Sons, Inc. v. Commissioner (Cook I), 59 T.C. 516 (1972), and B.C. Cook & Sons, Inc. v. Commissioner, (Cook II), 65 T.C. 422 (1975), affd. per curiam 584 F.2d 53 (5th Cir. 1978). In Cook I, the taxpayer was the victim of an embezzlement by its bookkeeper, who drew checks on the taxpayer’s account and falsely reflected them as purchases. The phony purchases were reflected in the taxpayer’s cost of goods sold for the years in which the funds were embezzled, thus reducing taxable income. Years later, when the taxpayer discovered the embezzlement, it took a theft loss deduction despite the fact that it had previously reduced taxable income by the same amounts for the prior years in which the embezzlement occurred. Some of the years during which the embezzlement occurred were closed by the statute of limitations. The Court held that because the taxpayer had “erroneously” used “nonexistent purchases” in computing cost" }, { "docid": "8781082", "title": "", "text": "to the actual inventory. But respondent takes the position here, probably because of the magnitude of the inventory shortage, that the downward adjustment of inventory to conform to the physical inventory cannot be made if petitioners have a reasonable prospect of recovering the loss occasioned by the shortage as of the end of the year in which the shortage occurred and was discovered. Query, at what magnitude does the reasonable prospect of recovery test become applicable? Respondent seems to recognize that in accounting for a theft of inventory, a taxpayer may either claim the loss occasioned by the shortage as a loss under section 165 or as a part of the cost of goods sold. Perhaps the taxpayer is afforded this option — it would usually make little difference in the computation of taxable income. But the majority of this Court held in the second case involving a loss due to fictitious purchases by an employee in B. C. Cook & Sons, Inc. v. Commissioner, 65 T.C. 422 (1975), affd. 584 F.2d 53 (5th Cir. 1978), that an adjustment to cost of goods sold is a different animal from a deduction for a loss. In the first case, B. C. Cook & Sons, Inc. v. Commissioner, 59 T.C. 516 (1972), this Court held that the loss first discovered in 1965 resulting from fictitious purchases made by an employee during prior years which had been reflected in petitioner’s cost of goods sold in those prior years was deductible in full as a loss under section 165 in the year of discovery. Since several of the years in which the fictitious purchases had been made were barred by the statute of limitations, respondent relied on the mitigation provisions of sections 1311-1314 to assert deficiencies for the barred years by disallowing the increases in cost of goods sold in those years as a result of the fictitious purchases. In that proceeding, reported at 65 T.C. 422, this Court held that an overstatement of cost of goods sold is not a “deduction” within the meaning of section 1312(2), which authorizes the use of section" }, { "docid": "8099543", "title": "", "text": "v. Commissioner, 69 T.C. 477 (1977) (Court reviewed), on appeal (9th Cir., June 14, 1978); Haas Brothers, Inc. v. Commissioner, 73 T.C. 1217 (1980). Respondent does not argue that the above-cited cases are factually distinguishable from the instant case, nor does he argue that the rationale of those decisions is inapplicable herein. Rather, he asserts that Pittsburgh Milk Co. and its progeny were incorrectly decided, and he urges us to reconsider and overrule those decisions. Respondent’s argument that the cash rebates are not to be excluded in determining gross income has two components. The first component is that Congress, by enacting section 162(c)(2) in its present form, intended to prohibit taxpayers from benefit ing from illegal payments such as these cash rebates. Sections 1.61-3(a) and 1.471-3(d), Income Tax Regs., were promulgated to prevent the congressional intent from being circumvented, by prohibiting an exclusion from income for any amount that would be nondeductible under section 162(c)(2). Therefore, the cash rebates are not excludable since section 162(c)(2) would preclude their deduction. In essence, respondent’s argument is that the expression of public policy in section 162(c)(2), and the Treasury regulations enacted in furtherance of that policy, are subsequent to, and overrule the holdings of, Pittsburgh Milk Co. and Atzingen-Whitehouse Dairy, Inc. The second component of respondent’s argument is that, regardless of sections 1.61-3(a) and 1.471-3(d), Income Tax Regs., the cash rebates are not excludable in determining gross income; rather, they are business expenses. Respondent contends that the agreements between petitioners and retailers were in contradiction of State law and unenforceable. Petitioners thus received the purchase price of the milk under claim of right with no obligation to pay the cash rebates. If petitioners did pay the cash rebates, such payments were unilateral and legally gratuitous acts and not part of the initial milk sales. They were, therefore, in substance, sales and promotional expenses governed by section 162. Thus, respondent argues that, contrary to this Court’s holding in Max Sobel, there is no distinction “between a discount or rebate to which the customers became entitled at the time of sale and costs incurred in" }, { "docid": "20077214", "title": "", "text": "Commissioner, 56 T.C. 610, 618 (1971). Gross income, in a merchandising business, means total sales less cost of goods sold (the gross profit from sales), plus any income from investments and from incidental or outside operations and sources. Sec. 1.61-3, Income Tax Regs.; Form 1120. The cost of goods sold during a year is determined by subtracting inventory on hand at the end of the year from the total inventory on hand at the beginning of the year and the cost of purchases. Schedule A, Form 1120. The use of inventories is a key feature of the accrual method of accounting. Inventories are intended to insure a clear reflection of the year’s income by matching sales during the taxable year with the purchase costs attributable to those sales; costs attributable to inventory remaining on hand at the end of the year are not expensed in the year incurred, but are, in effect, deferred until the year in which such inventory is sold. See Photo-Sonics, Inc. v. Commissioner, 357 F.2d 656, 657-658 (9th Cir. 1966), affg. 42 T.C. 926 (1964); All-Steel Equipment Inc. v. Commissioner, 54 T.C. 1749, 1751 (1970), affd. per curiam on this issue 467 F.2d 1184 (7th Cir. 1972). Where inventories are employed, purchases and sales must be computed on the accrual method (unless another method is authorized by the Commissioner) in order to avoid the distortion of income. Sec. 1.446-1(c)(2), Income Tax Regs.; Stoller v. United States, 162 Ct. Cl. 839, 845, 320 F.2d 340, 343 (1963). Inventories are most commonly valued at either (1) cost or (2) the lower of cost or market. Sec. 1.471-2(c), Income Tax Regs. Use of the latter method accelerates the recognition of unrealized losses on the inventory: where the market value of the inventory on hand at yearend has fallen below its original cost, the decline is recognized as a loss for income tax purposes even though the inventory has not been sold during the year. St. James Sugar Co-op, Inc. v. United States, supra at 1226; D. Loveman & Son Export Corp. v. Commissioner, 34 T.C. 776, 798 (1960), affd." }, { "docid": "20077223", "title": "", "text": "the Code, the term \"deduction” is used to refer to amounts subtracted from gross income to arrive at taxable income. Curtis Gallery & Library, Inc. v. United States, 388 F.2d 358, 361 (9th Cir. 1967); B.C. Cook & Sons, Inc. v. Commissioner, 65 T.C. 422, 428-432 (1975), affd. per curiam 584 F.2d 53 (5th Cir. 1978), and cases cited therein; National Home Products, Inc. v. Commissioner, 71 T.C. 501 (1979). Such distinction was recognized in Max Sobel Wholesale Liquors v. Commissioner, 69 T.C. 477 (1977), affd. 630 F.2d 670 (9th Cir. 1980). In that case, the taxpayer, in violation of State law, made sales of liquor and wine to selected customers at posted prices with the understanding that such customers would receive a credit to be used for future purchases or an additional bottle of each case purchased. As the additional bottles were delivered, their cost was charged to the cost of goods sold. Section 162(c)(2) disallows a deduction for an \"illegal bribe, illegal kickback, or other illegal payment” otherwise deductible under section 162(a). However, we held that such limitation was not applicable because the cost of the additional bottles was a part of the cost of goods sold. 69 T.C at 484-486. See also Pittsburgh Milk Co. v. Commissioner, 26 T.C. 707 (1956). Similarly, in National Home Products, Inc. v. Commissioner, supra, we determined that casualty losses of inventories are not deductions subject to the \"reasonable prospect of recovery test” contained in section 1.165-1 (d)(2)(i) of the regulations, which determines the year of deductibility of casualty losses under section 165. The Commissioner had argued that it would be inconsistent to allow inventory losses to be reflected in the cost of goods sold for a year at the end of which there was a reasonable prospect of recovery of such losses while other losses would be disallowed under similar circumstances. We disagreed, stating that \"This is simply recognition of the fact that use of inventories in computing gross income for both book and tax purposes is unique and warrants use of different rules to correctly reflect income.” 71 T.C. at" }, { "docid": "20077224", "title": "", "text": "we held that such limitation was not applicable because the cost of the additional bottles was a part of the cost of goods sold. 69 T.C at 484-486. See also Pittsburgh Milk Co. v. Commissioner, 26 T.C. 707 (1956). Similarly, in National Home Products, Inc. v. Commissioner, supra, we determined that casualty losses of inventories are not deductions subject to the \"reasonable prospect of recovery test” contained in section 1.165-1 (d)(2)(i) of the regulations, which determines the year of deductibility of casualty losses under section 165. The Commissioner had argued that it would be inconsistent to allow inventory losses to be reflected in the cost of goods sold for a year at the end of which there was a reasonable prospect of recovery of such losses while other losses would be disallowed under similar circumstances. We disagreed, stating that \"This is simply recognition of the fact that use of inventories in computing gross income for both book and tax purposes is unique and warrants use of different rules to correctly reflect income.” 71 T.C. at 530. The Commissioner has, in his regulations, also recognized that in some industries, the all events test is not to be applied in determining the costs of inventories. For example, section 1.471-6, Income Tax Regs., permits livestock raisers and farmers to value livestock inventory under the \"unit-livestock-price method.” Such method permits the livestock raiser to estimate the cost of the animals in inventory through a classification system based on the age and kind of the animal \"so that the unit prices assigned to the several classes will reasonably account for the normal costs incurred in producing the animals within such classes.” Sec. 1.471-6(e), Income Tax Regs. Once established, the unit prices and classifications selected by the livestock breeder must be consistently applied in all subsequent taxable years in the valuation of the livestock inventories. Sec. 1.471-6(f), Income Tax Regs. We have recognized that use of the unit-livestock-price method \"is at best an approximation,” but that it serves \"a useful purpose in that it greatly eases the bookkeeping burden on many taxpayers without an inordinate sacrifice" }, { "docid": "8781083", "title": "", "text": "1978), that an adjustment to cost of goods sold is a different animal from a deduction for a loss. In the first case, B. C. Cook & Sons, Inc. v. Commissioner, 59 T.C. 516 (1972), this Court held that the loss first discovered in 1965 resulting from fictitious purchases made by an employee during prior years which had been reflected in petitioner’s cost of goods sold in those prior years was deductible in full as a loss under section 165 in the year of discovery. Since several of the years in which the fictitious purchases had been made were barred by the statute of limitations, respondent relied on the mitigation provisions of sections 1311-1314 to assert deficiencies for the barred years by disallowing the increases in cost of goods sold in those years as a result of the fictitious purchases. In that proceeding, reported at 65 T.C. 422, this Court held that an overstatement of cost of goods sold is not a “deduction” within the meaning of section 1312(2), which authorizes the use of section 1311 where a “determination” for a later ye.ar “allows a deduction or credit which was erroneously allowed to the taxpayer for another taxable year,” and consequently respondent could not lift the statute of limitations for the earlier years despite the fact that petitioner had been allowed a “deduction” under section 165 in 1965 for the same amounts that petitioner had increased its costs of goods sold for those prior years. The majority opinion pointed out that cost of goods sold is an “offset” employed in the computation of gross income, while itemized deductions, such as those allowed by section 165, are subtracted from gross income in arriving at taxable income. Both of the B. C. Cook & Sons, Inc., opinions and the regulations under section 165 recognize that there is a distinction between losses of inventory and other losses and that the proper way to account for inventory losses is through adjustments to cost of goods sold. So, is respondent justified in requiring that an inventory loss must meet the requirements for deductions of section" }, { "docid": "8099542", "title": "", "text": "to be excluded in determining gross income, as petitioners argue, or whether they are to be treated as deduc tions from gross income subject to the limitations of section 162, as respondent argues. In the various statutory notices of deficiency, respondent determined that the cash rebates could neither be excluded in determining gross income nor be deducted from gross income. The proper treatment to be accorded similar payments made by sellers of milk and milk products to retailers has been previously decided by this Court. Pittsburgh Milk Co. v. Commissioner, 26 T.C. 707 (1956); Atzingen-Whitehouse Dairy, Inc. v. Commissioner, 36 T.C. 173 (1961). In each of these cases, the Court determined that the payments were to be excluded in determining gross income, in effect, concluding that the milk and milk products were sold for an agreed net price which equaled the set minimum price less the cash rebates. The rationale underlying the decisions reached in Pittsburgh Milk Co. and Atzingen-Whitehouse Dairy, Inc., has recently been reconsidered and approved by this Court. Max Sobel Wholesale Liquors v. Commissioner, 69 T.C. 477 (1977) (Court reviewed), on appeal (9th Cir., June 14, 1978); Haas Brothers, Inc. v. Commissioner, 73 T.C. 1217 (1980). Respondent does not argue that the above-cited cases are factually distinguishable from the instant case, nor does he argue that the rationale of those decisions is inapplicable herein. Rather, he asserts that Pittsburgh Milk Co. and its progeny were incorrectly decided, and he urges us to reconsider and overrule those decisions. Respondent’s argument that the cash rebates are not to be excluded in determining gross income has two components. The first component is that Congress, by enacting section 162(c)(2) in its present form, intended to prohibit taxpayers from benefit ing from illegal payments such as these cash rebates. Sections 1.61-3(a) and 1.471-3(d), Income Tax Regs., were promulgated to prevent the congressional intent from being circumvented, by prohibiting an exclusion from income for any amount that would be nondeductible under section 162(c)(2). Therefore, the cash rebates are not excludable since section 162(c)(2) would preclude their deduction. In essence, respondent’s argument is that" }, { "docid": "8099544", "title": "", "text": "the expression of public policy in section 162(c)(2), and the Treasury regulations enacted in furtherance of that policy, are subsequent to, and overrule the holdings of, Pittsburgh Milk Co. and Atzingen-Whitehouse Dairy, Inc. The second component of respondent’s argument is that, regardless of sections 1.61-3(a) and 1.471-3(d), Income Tax Regs., the cash rebates are not excludable in determining gross income; rather, they are business expenses. Respondent contends that the agreements between petitioners and retailers were in contradiction of State law and unenforceable. Petitioners thus received the purchase price of the milk under claim of right with no obligation to pay the cash rebates. If petitioners did pay the cash rebates, such payments were unilateral and legally gratuitous acts and not part of the initial milk sales. They were, therefore, in substance, sales and promotional expenses governed by section 162. Thus, respondent argues that, contrary to this Court’s holding in Max Sobel, there is no distinction “between a discount or rebate to which the customers became entitled at the time of sale and costs incurred in the form of illegal payments, or payments to the third parties, which were not made pursuant to agreement between the buyer and the seller.” Max Sobel Wholesale Liquors v. Commissioner, supra at 482-483. Emphasis in original. See Alex v. Commissioner, 70 T.C. 322 (1978), on appeal (9th Cir., Aug. 4, 1978). We find neither component of respondent’s argument persuasive. The effect of the enactment of section 162(c)(2) in its present form and of sections 1.61-3(a) and 1.471-3(d), Income Tax Regs., on the rationale of Pittsburgh Milk Co. was addressed by this Court in Max Sobel Wholesale Liquors v. Commissioner, supra at 484-485. Therein, the Court held that if Congress had intended to overrule Pittsburgh Milk Co. by the enactment of section 162(c)(2), it would have been more specific in doing so. We agree with that assessment. The second component of respondent’s argument is likewise unpersuasive. We are convinced, as was the case in Pittsburgh Milk Co., that the price at which the petitioners sold milk to retailers was an agreed net price comprised of the" }, { "docid": "2530575", "title": "", "text": "reflects income because the Commissioner considers an alternate method to more clearly reflect income. See, e.g., St. James Sugar Co-op, Inc. v. United States, 643 F.2d 1219 (5th Cir. 1981); Bay State Gas Co. v. Commissioner, 75 T.C. 410, 417 (1980), affd. 689 F.2d 1 (1st Cir. 1982); Auburn Packing Co. v. Commissioner, 60 T.C. 794, 798-800 (1973); Garth v. Commissioner, 56 T.C. 610, 618 (1971). In addition, the Commissioner may not require a taxpayer to adopt an accounting method which does not clearly reflect income. See Brountas v. Commissioner, 74 T.C. 1062, 1069 (1980), supplemental opinion to 73 T.C. 491 (1979), vacated and remanded on other grounds 692 F.2d 152 (1st Cir. 1982), affd. in part and revd. in part on other grounds sub nom. CRC Corp. v. Commissioner, 693 F.2d 281 (3d Cir. 1982). Gross income, in a manufacturing business, means total sales less cost of goods sold (the gross profit from sales), plus any income from investments and from incidental or outside operations and sources. Sec. 1.61-3(a), Income Tax Regs.; see Form 1120. “[T]he Commissioner has always recognized * * * that the cost of goods sold must be deducted from gross receipts in order to arrive at gross income.” Sullenger v. Commissioner, 11 T.C. 1076, 1077 (1948). The cost of goods sold during a year is determined by subtracting inventory on hand at the end of the year from the sum of the inventory on hand at the beginning of the year and the cost of purchases. See Schedule A, Form 1120. The use of inventories is a key feature of the accrual method of accounting. Inventories are intended to insure a clear reflection of the year’s income by matching sales during the taxable year with the costs attributable to those sales; costs attributable to inventory remaining on hand at the end of the year are not expensed in the year incurred but are, in effect, deferred until the year in which such inventory is sold. See Photo-Sonics, Inc. v. Commissioner, 357 F.2d 656, 657-658 (9th Cir. 1966), affg. 42 T.C. 926 (1964); All-Steel Equipment Inc." }, { "docid": "18932002", "title": "", "text": "5219-76. See also Atzingen-Whitehouse Dairy, Inc. v. Commissioner, 36 T.C. 173 (1961); Harmony Dairy Co. v. Commissioner, 19 T.C.M. 582 (1960); Rosedale Dairy Co. v. Commissioner, 16 T.C.M. 1121 (1957). Respondent had unsuccessfully argued that the Tank Truck Rentals case overruled the Pittsburgh Milk case in Harmony Dairy Co. v. Commissioner, supra, which was decided on May 31, 1960. Drennen, J., dissenting: I do not disagree with the principles expressed in the majority opinion; nevertheless, I would reach the opposite conclusion in this case for a reason not discussed in the majority opinion. Stated briefly, I would reduce the cost of goods sold by the cost to the taxpayer of the “credit” merchandise which I conclude was not sold by the taxpayer. A “sale” was defined by the Supreme Court in Commissioner v. Brown, 380 U.S. 563 (1965), to be “a transfer of property for a fixed monetary price or its equivalent.” As I understand the facts in this case, Sobel sold wine and liquor to its preferred customers at list prices and entered the full amount of the list prices in sales. It then noted a credit in favor of the preferred customers in its “black book.” Subsequently, according to the majority opinion, the customers were delivered additional merchandise “at no additional charge, in satisfaction of the credits recorded in the ‘black book’ ” from its inventory and the cost of such merchandise to Sobel was charged to cost of goods sold. Presumably no further sale was recorded in Sobel’s books. In my opinion this subsequent transaction did not constitute a sale of the credit merchandise under the above definition of “sale.” There is no specific provision in the Code that allows a reduction in, or deduction from, income for cost of goods sold. The Commissioner of Internal Revenue and the courts have simply recognized that no more than gross income can be subjected to income tax and that the cost of goods sold must be deducted from gross receipts in order to arrive at gross income, the starting point for an income tax. Sullenger v. Commissiomr, 11 T.C." }, { "docid": "20077222", "title": "", "text": "are allowable for the taxable year in which all the events have occurred which establish the fact of the liability giving rise to such deduction and the amount thereof can be determined with reasonable accuracy. * * * [Sec. 1.446 — l(c)(l)(ii), Income Tax Regs.] This description of the accrual method is repeated in the regulations under section 451, insofar as it pertains to the accrual of income, and in the regulations under section 461, insofar as it pertains to the accrual of deductible expenses. In our view, the Commissioner’s reliance, in part, on section 1.461-l(a)(2) of the regulations is misplaced. Although purchases are an \"expense” in the colloquial sense, it is well settled that they are not a \"deduction” within the meaning of section 461 and that they are not subject to the rules governing deductions under such section. Purchases are taken into account in computing the cost of goods sold, which is an offset, or exclusion, employed in the computation of gross profit and gross income (section 1.61-3(a), Income Tax Regs.); whereas, throughout the Code, the term \"deduction” is used to refer to amounts subtracted from gross income to arrive at taxable income. Curtis Gallery & Library, Inc. v. United States, 388 F.2d 358, 361 (9th Cir. 1967); B.C. Cook & Sons, Inc. v. Commissioner, 65 T.C. 422, 428-432 (1975), affd. per curiam 584 F.2d 53 (5th Cir. 1978), and cases cited therein; National Home Products, Inc. v. Commissioner, 71 T.C. 501 (1979). Such distinction was recognized in Max Sobel Wholesale Liquors v. Commissioner, 69 T.C. 477 (1977), affd. 630 F.2d 670 (9th Cir. 1980). In that case, the taxpayer, in violation of State law, made sales of liquor and wine to selected customers at posted prices with the understanding that such customers would receive a credit to be used for future purchases or an additional bottle of each case purchased. As the additional bottles were delivered, their cost was charged to the cost of goods sold. Section 162(c)(2) disallows a deduction for an \"illegal bribe, illegal kickback, or other illegal payment” otherwise deductible under section 162(a). However," }, { "docid": "12734800", "title": "", "text": "the clear import of the language used.” Greyhound Corp. v. United States, 495 F.2d 863, 869 (9th Cir. 1974). B. The Regulations Our conclusion fatally undercuts the Commissioner’s attempts in Regs. §§ 1.61-3(a) and 1.471-3(d) to apply the disallowance rule of § 162(c)(2) to portions of the cost of goods sold. Despite the deference owed to tax regulations, see National Muffler Dealers Assn. v. United States, 440 U.S. 472, 476-77, 99 S.Ct. 1304, 1306-07, 59 L.Ed.2d 519 (1979), they cannot stand if unsupported by the underlying statute. Reg. § 1.61-3(a) reads in pertinent part: In a . . . merchandising . . . business, “gross income” means the total sales, less the cost of goods sold .... Gross income is determined without subtraction of . amounts which are of a type for which a deduction would be disallowed under section 162(c) . in the case of a business expense. Reg. § 1.471-3 sets out the rules for the cost method of inventory accounting: Cost means: (a) In the case of merchandise on hand at the beginning of the taxable year, the inventory price of such goods. (b) In the case of merchandise purchased since the beginning of the taxable year, the invoice price less trade or other discounts .... To this net invoice price should be added transportation or other necessary charges incurred in acquiring possession of the goods. (d) . . . Notwithstanding the other rules of this section, cost shall not include an amount which is of a type for which a deduction would be disallowed under section 162(c) ... in the case of a business expense. The Tax Court did not strike down the offending passages altogether, but (assuming their validity) limited their applicability to the category, that “may” exist, of “expenses of a dual character which may be chargeable either to overhead in the cost of goods sold or deducted as administrative or sales expense. [e. g.,] a bribe given for the purpose of obtaining goods or for the purpose of expediting [their] delivery to the taxpayer.” 69 T.C. at 485. We doubt the existence of" }, { "docid": "12734797", "title": "", "text": "the loss of license or privilege to engage in a trade or business. I.R.C. § 162(c)(2). Clearly, § 162(c)(2) precludes taxpayer from claiming the value of the extra liquor as a business expense deductible under I.R.C. § 162(a). However, the Tax Court has held in Pittsburgh Milk Co. v. Commissioner, 26 T.C. 707 (1956), and following cases that when, as an added consideration for a sale, a seller rebates part of his customer’s purchase price or pays him cash from a separate account, the amount of the rebate is not a business expense, potentially deductible under § 162(a), but rather is an “above the line” adjustment of the selling price. Regardless of whether the rebate is legal, the seller is treated as if he had never received more than the net price (the difference between the list price and the rebate); the amount of the rebate is excluded from the seller’s gross income. See, e. g., Tri-State Beverage Distributors, Inc. v. Commissioner, 27 T.C. 1026 (1957) (doctrine successfully invoked by Commissioner). The Pittsburgh Milk doctrine has the obvious merit of reflecting economic reality. The seller would make no sale at the list price; only at the net price can he attract the customer. The net price is the true consideration, regardless of the parties’ bookkeeping hypocrisies. The Tax Court, despite the passage of § 162(c)(2) and the Commissioner’s recent withdrawal of his acquiescence, has correctly adhered to Pittsburgh Milk in the case at bar. There is no material difference between Pittsburgh Milk, where the price is adjusted by a cash rebate, and the present case, where the price is adjusted by the delivery of extra merchandise. Rather than directly reducing gross receipts, taxpayer’s price-adjustment method results in a decrease in the value of closing inventory, which is accounted for as an increase in the cost of goods sold, which in turn is subtracted “above the line” from gross receipts to determine gross income. See Thor Power Tool Co. v. Commissioner, 439 U.S. 522, 530 n.9, 99 S.Ct. 773, 780 n.9, 58 L.Ed.2d 785 (1979). Only after this computation will tax" } ]

[ { "docid": "22343820", "title": "", "text": "too relegated its entire discussion to a footnote: Cocaine is a Schedule II controlled substance, possession of which is unlawful. Knowing use of cocaine, which [the defendant] admitted to here, requires possession, even if only momentarily. Thus, [the defendant’s] admitted use of the drug, confirmed by laboratory testing, was illegal under federal and state law. See United States v. Rodriguez, 831 F.2d 162, 167 (7th Cir.1987) (possession of controlled substances may be actual or constructive and may be established by direct and circumstantial evidence). Id. at 464 n. 3 (citations omitted). This violation “alone,” the Seventh Court held, provided a sufficient basis for the revocation of supervised release. Id. at 464-65. In United States v. Graves, 914 F.2d 159 (8th Cir.1990), the defendant, who had admitted to his probation officer that he was using drugs, challenged what he perceived as the district court’s reliance on 18 U.S.C. § 3583(g) in revoking his supervised release and sentencing him to eighteen months imprisonment. Although the Eighth Circuit declined to reach the defendant’s claim of error, its comments suggest that it would have held that the defendant’s admission of drug use constituted sufficient evidence of possession for purposes of section 3583(g). This proposition was in the Eighth Circuit’s view so intuitive that its analysis was consigned to a two-word parenthetical: “it is not necessary for this court to reach ... the question of whether [the defendant’s] admission of drug use (thus possession) in the revocation hearing constituted a waiver of the notice requirements.” Id. (emphasis added). Likewise, in United States v. Ramos-Santiago, 925 F.2d 15, 16 (1st Cir.1991), the defendant, who had tested positive for narcotics use on sixteen different occasions over a nine-month period and had admitted to violating a condition of his supervised release, asserted on appeal that the district court erred in sentencing him to two years imprisonment (two-thirds of the term of supervised release) following revocation of his supervised release. The First Circuit rejected this contention, stating simply: The court here acted in compliance with § 3583(g): it revoked release and imposed a prison term (two years) not less" } ]

[ { "docid": "22139572", "title": "", "text": "original sentence to a term of supervision. Mathena's DWI conduct equated to a Grade B violation, see U.S.S.G. § 7B 1.1 (a)(2), p.s., and his applicable criminal history category was a II. Those factors yielded a sentencing range of 6-12 months imprisonment based on the table set forth in U.S.S.G. § 7B1.4, p.s. . Mathena’s counsel below properly preserved this issue. At the revocation hearing, counsel stated: . The overwhelming majority of the circuits have similarly held that the policy statements of Chapter 7 are advisory. See United States v. Anderson, 15 F.3d 278, 284 (2d Cir.1994); United States v. Levi, 2 F.3d 842, 845 (8th Cir.1993); United States v. Hooker, 993 F.2d 898, 900-901 (D.C.Cir.1993); United States v. Thompson, 976 F.2d 1380, 1381 (11th Cir.1992); United States v. Cohen, 965 F.2d 58, 61 (6th Cir.1992); United States v. Lee, 957 F.2d 770, 774 (10th Cir.1992); United States v. Corpuz, 953 F.2d 526, 530 (9th Cir.1992); United States v. Blackston, 940 F.2d 877, 893 (3d Cir.), cert. denied, —U.S.-, 112 S.Ct. 611, 116 L.Ed.2d 634 (1991). But see United States v. Lewis, 998 F.2d 497, 499 (7th Cir.1993) (holding that the policy statements of Chapter 7 are binding). Moreover, no circuit faced with this issue has differentiated between kinds of revocations — i.e., those under § 3583(e) as opposed to those under § 3583(g). . Section 3583(g) provides that “[i]f the defendant is found by the court to be in the possession of a controlled substance, the court shall terminate the term of supervised release and require the defendant to serve in prison not less than one-third of the term of supervised release.” . For the reasons set forth later in this opinion, we do not believe en banc review is warranted. . We think it clear that if Congress had intended to make the provisions regarding the revocation of supervised release binding, then it would have simply directed the Sentencing Commission to promulgate guidelines, rather than give the Commission a choice between guidelines or policy statements. . No court has distinguished § 3583(e) from § 3583(g) when determining a" }, { "docid": "8657575", "title": "", "text": "rule that the policy statements of Chapter 7 of the Sentencing Guidelines are “advisory only.” It held Stinson is distinguishable because in that decision the Court drew an analogy between commentary that interprets or explains a guideline, and an agency’s interpretation of its own legislative rules. Because courts usually give controlling weight to an agency’s interpretation of its own legislative rules, the Court reasoned the same treatment should be accorded commentary that explains or interprets a guideline. The Court’s rationale for its holding (regarding commentary) and dictum (regarding policy statements) does not apply here because the policy statements of Chapter 7 do not interpret or explain a guideline. Id. at 93. Similarly, in Headrick, the Fifth Circuit held “[u]nlike ... Williams, the policy statements [in Chapter 7 of the U.S.S.G.] do not interpret or explain any statute or guideline. They stand alone, and in a state of nascency. We have no trouble, therefore, in holding that ‘the policy statements regarding revocation of supervised release contained in Chapter 7 of the [Guidelines] are advisory rather than mandatory in nature.’ ” Headrick, 963 F.2d at 782 (quoting Lee, 957 F.2d at 773) (additional citation omitted). All of the circuit courts that have considered the impact of Stinson and Williams have agreed with the Fifth Circuit’s analysis and conclusion in Headrick and Mathena. See United States v. Davis, 53 F.3d 638, 640 n. 6 (4th Cir.1995); United States v. Milano, 32 F.3d 1499, 1502-03 (11th Cir.1994); United States v. Sparks, 19 F.3d 1099, 1101 n. 3 (6th Cir.1994); United States v. Anderson, 15 F.3d 278, 283-84 & n. 6 (2d Cir.1994); United States v. O’Neil, 11 F.3d 292, 301 n. 11 (1st Cir.1993); United States v. Levi, 2 F.3d 842, 845 (8th Cir.1993); United States v. Hooker, 993 F.2d 898, 900-01 (D.C.Cir.1993). The Seventh Circuit initially held to the contrary, United States v. Lewis, 998 F.2d 497, 499 (7th Cir.1993), but later overruled Lewis and embraced the majority view. United States v. Hill, 48 F.3d 228, 231-32 (7th Cir. 1995). We now join our sister Circuits and reaffirm the rule we announced in" }, { "docid": "22714215", "title": "", "text": "chapters at issue in Stinson and Williams, contains no guidelines, and therefore a Chapter 7 policy statement cannot be an authoritative interpretation within the meaning of those cases. . This point is implicitly recognized in Denard, which relies in part on the Third Circuit's decision in a supervised release case. 24 F.3d at 602 (citing Blackston, 940 F.2d at 893). Further support for this point is that the relevant policy statement, U.S.S.G. § 7B1.4, draws no distinction between probation and supervised release. . See supra note 1. . For cases holding that Chapter 7 policy statements are non-binding in supervised release revocation proceedings, see United States v. Hill, 48 F.3d 228 (7th Cir.1995), overruling United States v. Lewis, 998 F.2d 497, 498-99 (7th Cir.1993); United States v. Mathena, 23 F.3d 87, 91-93 (5th Cir.1994); United States v. Sparks, 19 F.3d 1099, 1101 & n. 3 (6th Cir.1994); United States v. Anderson, 15 F.3d 278, 283-84 (2d Cir.1994); United States v. O'Neil, 11 F.3d 292, 301 n. 11 (1st Cir.1993); United States v. Levi, 2 F.3d 842, 845 (8th Cir.1993); United States v. Thompson, 976 F.2d 1380, 1381 (11th Cir.1992); United States v. Bermudez, 974 F.2d 12, 13-14 (2d Cir.1992); United States v. Jones, 973 F.2d 605, 608 (8th Cir.1992); United States v. Cohen, 965 F.2d 58, 60-61 (6th Cir.1992); United States v. Headrick, 963 F.2d 777, 780 (5th Cir.1992); United States v. Lee, 957 F.2d 770, 773 (10th Cir.1992); United States v. Blackston, 940 F.2d 877, 893 (3d Cir.), cert. denied, 502 U.S. 992, 112 S.Ct. 611, 116 L.Ed.2d 634 (1991); United States v. Oliver, 931 F.2d 463, 465 (8th Cir.1991). . For cases holding that Chapter 7 policy statements are non-binding in probation revocation proceedings, see United States v. Forrester, 19 F.3d 482, 484 (9th Cir.1994); United States v. Hooker, 993 F.2d 898, 900-01 (D.C.Cir.1993); United States v. Corpuz, 953 F.2d 526, 530 (9th Cir.1992). . Prior to the 1994 amendments, the statute provided, in pertinent part, that the district court may: revoke a term of supervised release, and require the person to serve in prison all or part" }, { "docid": "23209112", "title": "", "text": "guideline establishes a mandatory range of such a sentence.” United States v. Hale, 107 F.3d 526, 529 (7th Cir.1997); see also 18 U.S.C. § 3742(a)(4). III. DISCUSSION McClanahan’s arguments are predicated on a misperception of the nature of Chapter Seven of the Sentencing Guidelines Manual, which deals with the revocation of supervised release. In ■ his view, his sentence is controlled by guidelines that prescribe narrow, strictly binding ranges, and that any deviation from the Guidelines’ Revocation Table requires extraordinary circumstances absent here. See U.S.S.G. § 7B1.4(a). The Sentencing Commission is provided the authority under 28 U.S.C. § 994(a)(3) to issue guidelines or policy statements addressing revocation of supervised release. For a number of reasons, the Commission chose to issue interim policy statements which, while offering “guidance” to the sentencing courts, nevertheless permit greater “flexibility” than guidelines. These policy statements are seen as “evolutionary” and tentative; after an appropriate period of information gathering, the Commission anticipates promulgation of formal revocation guidelines. U.S.S.G., ch. 7, pt. A, §§ 1, 3(a), 5; see also United States v. Hurst, 78 F.3d 482, 484 (10th Cir.1996); United States v. West, 59 F.3d 32, 34 (6th Cir.1995); United States v. Anderson, 15 F.3d 278, 283-84 (2d Cir.1994); United States v. O’Neil, 11 F.3d 292, 301 n. 11 (1st Cir.1993); United States v. Hooker, 993 F.2d 898, 900 (D.C.Cir.1993); United States v. Cohen, 965 F.2d 58, 60-61 (6th Cir.1992); United States v. Blackston, 940 F.2d 877, 893 (3d Cir.1991). Guidelines commentary is generally an authoritative interpretation of the rules contained therein. See Stinson v. United States, 508 U.S. 36, 38, 45, 113 S.Ct. 1913, 1915, 1919, 123 L.Ed.2d 598 (1993). Nonetheless, numerous post-Stinson courts have concluded that the Chapter Seven provisions are merely advisory rather than mandatory, subject to the statutory maximum terms of imprisonment (“caps”) provided in 18 U.S.C. § 3583(e)(3). See, e.g., United States v. Pelensky, 129 F.3d 63, 69 (2d Cir.1997); United States v. Doss, 79 F.3d 76, 78 (7th Cir.1996); Hurst, 78 F.3d at 483-84 (collecting cases); United States v. Milano, 32 F.3d 1499, 1502-05 (11th Cir.1994); United States v. Mathena, 23" }, { "docid": "22714216", "title": "", "text": "842, 845 (8th Cir.1993); United States v. Thompson, 976 F.2d 1380, 1381 (11th Cir.1992); United States v. Bermudez, 974 F.2d 12, 13-14 (2d Cir.1992); United States v. Jones, 973 F.2d 605, 608 (8th Cir.1992); United States v. Cohen, 965 F.2d 58, 60-61 (6th Cir.1992); United States v. Headrick, 963 F.2d 777, 780 (5th Cir.1992); United States v. Lee, 957 F.2d 770, 773 (10th Cir.1992); United States v. Blackston, 940 F.2d 877, 893 (3d Cir.), cert. denied, 502 U.S. 992, 112 S.Ct. 611, 116 L.Ed.2d 634 (1991); United States v. Oliver, 931 F.2d 463, 465 (8th Cir.1991). . For cases holding that Chapter 7 policy statements are non-binding in probation revocation proceedings, see United States v. Forrester, 19 F.3d 482, 484 (9th Cir.1994); United States v. Hooker, 993 F.2d 898, 900-01 (D.C.Cir.1993); United States v. Corpuz, 953 F.2d 526, 530 (9th Cir.1992). . Prior to the 1994 amendments, the statute provided, in pertinent part, that the district court may: revoke a term of supervised release, and require the person to serve in prison all or part of the term of supervised release without credit for time previously served on postrelease supervision, if it finds by a preponderance of the evidence that the person violated a condition of supervised release, pursuant to the provisions of the Federal Rules of Criminal Procedure that are applicable to probation revoca- ' tion and to the provisions of applicable policy statements issued by the Sentencing Commission .... 18 U.S.C. § 3583(e)(3) (emphasis added) (before 1994 amendment). Although neither party discusses it, we note that the supervised release revocation statute at issue here contained a second reference to Guidelines policy statements. See 18 U.S.C. §§ 3583(e), 3553(a)(5) (district court may modify supervised release only after \"considering\" various factors including \"pertinent policy statements” issued pursuant to 28 U.S.C. § 994(a)(2)) (before 1994 amendments). This provision related only to policy statements issued pursuant to 28 U.S.C. § 994(a)(2), and therefore did not relate to the Chapter 7 policy statements. See infra note 12. . In responding to Davis’ textual argument, the government incorrectly asserts that the probation revocation statute" }, { "docid": "11394230", "title": "", "text": "situation such as is presented in the instant case, the Sentencing Commission policy statement favoring consecutive sentences cannot be binding on the trial judge. Stinson does not dictate to the contrary. In so holding, we join the majority of circuits that have addressed this issue. For example, the court stated in United States v. O’Neil, 11 F.3d 292 (1st Cir.1993): We are aware that the Sentencing Commission's policy statement contemplates that the new term of imprisonment will be \"less than” the maximum term of imprisonment imposable upon revocation for each class of offense, U.S.S.G. § 7B 1.3(g)(2) p.s., but we use round numbers for simplicity's sake. Moreover, although a policy statement ordinarily “is an authoritative guide to the meaning of the applicable guideline,” Williams v. United States, U.S. -, -, 112 S.Ct. 1112, 1119, 117 L.Ed.2d 341 (1992), the policy statements of Chapter 7 are unaccompanied by guidelines, and are prefaced by a special discussion making manifest their tentative nature, see U.S.S.G. Ch. 7, Pt. A, intro, comment. Hence, we today join six other circuits in recognizing Chapter 7 policy statements as advisory rather than mandatory. See United States v. Thompson, 976 F.2d 1380, 1381 (11th Cir.1992); United States v. Bermudez, 974 F.2d 12, 14 (2d Cir.1992); United States v. Cohen, 965 F.2d 58, 59-61 (6th Cir.1992); United States v. Lee, 957 F.2d 770, 773 (10th Cir.1992); United States v. Blackston, 940 F.2d 877, 893 (3d Cir.), cert. denied, — U.S. -, 112 S.Ct. 611, 116 L.Ed.2d 634 (1991); United States v. Oliver, 931 F.2d 463, 465 (8th Cir.1991). On remand, the lower court must consider, but need not necessarily follow, the Sentencing Commission’s recommendations regarding post-revocation sentencing. Id. at 301 n. 11." }, { "docid": "22139571", "title": "", "text": "more than 3 years in prison if the offense for which the person was convicted was a Class B felony_”). Under these circumstances, we cannot conclude that Mathena’s sentence was plainly unreasonable. Ill For the foregoing reasons, we AFFIRM the sentence imposed by the district court. . Those standard conditions required, inter alia, that Mathena not commit another federal, state, or local crime, and that he not leave the judicial district without the permission of the court or his probation officer. . A court may require a person who has violated a condition of his supervised release “to serve in prison all or part of the term of supervised release without credit for time previously served on postrelease supervision.\" 18 U.S.C. § 3583(e)(3). . See United States Sentencing Commission, Guidelines Manual, Chapter 7 (Nov. 1992) (entitled \"Violations of Probation and Supervised Release”). .According to U.S.S.G. § 7B 1.4(a), p.s., the range of imprisonment applicable upon revocation is determined by plotting a defendant's grade of violation against his criminal history category at the time of his original sentence to a term of supervision. Mathena's DWI conduct equated to a Grade B violation, see U.S.S.G. § 7B 1.1 (a)(2), p.s., and his applicable criminal history category was a II. Those factors yielded a sentencing range of 6-12 months imprisonment based on the table set forth in U.S.S.G. § 7B1.4, p.s. . Mathena’s counsel below properly preserved this issue. At the revocation hearing, counsel stated: . The overwhelming majority of the circuits have similarly held that the policy statements of Chapter 7 are advisory. See United States v. Anderson, 15 F.3d 278, 284 (2d Cir.1994); United States v. Levi, 2 F.3d 842, 845 (8th Cir.1993); United States v. Hooker, 993 F.2d 898, 900-901 (D.C.Cir.1993); United States v. Thompson, 976 F.2d 1380, 1381 (11th Cir.1992); United States v. Cohen, 965 F.2d 58, 61 (6th Cir.1992); United States v. Lee, 957 F.2d 770, 774 (10th Cir.1992); United States v. Corpuz, 953 F.2d 526, 530 (9th Cir.1992); United States v. Blackston, 940 F.2d 877, 893 (3d Cir.), cert. denied, —U.S.-, 112 S.Ct. 611, 116 L.Ed.2d 634" }, { "docid": "22139569", "title": "", "text": "341 (1992)). The Supreme Court’s dictum is clearly distinguishable. In Stinson, the Court drew an analogy between commentary that interprets or explains a guideline, and an agency’s interpretation of its own legislative rules. Because courts usually give controlling weight to an agency’s interpretation of its own legislative rules, the Court reasoned the same treatment should be accorded commentary that explains or interprets a guideline. The Court’s rationale for its holding (regarding commentary) and dictum (regarding policy statements) does not apply here because the policy statements of Chapter 7 do not interpret or explain a guideline. As we stated in Headrick, the policy statements of Chapter 7 “stand alone, and in a state of nascency.” Id., 963 F.2d at 782. Consequently, Stinson is clearly distinguishable. See Anderson, 15 F.3d at 284 n. 6 (determining that Stinson is distinguishable from the policy statements of Chapter 7); Levi, 2 F.3d at 845 (same); cf. Headrick, 963 F.2d at 782 (distinguishing Williams (which Stinson cited as support) because the policy statements of Chapter 7 “do not interpret or explain any statute or guideline”). But see Lewis, 998 F.2d at 499 (holding that Stinson compels the conclusion that all policy statements, including those of Chapter 7, are binding). B We also reject Mathena’s conten- ' tion that his sentence of thirty-six months imprisonment was plainly unreasonable. While a final hearing on the government’s motion to revoke Mathena’s sentence re- mained pending, Mathena repeatedly and willfully violated other conditions of his supervised release by leaving the Western District of Texas without permission and failing to report for substance abuse treatment. See United States v. Brooks, 976 F.2d 1358, 1361 (10th Cir.1992) (determining that a defendant’s revocation sentence was reasonable where the defendant repeatedly violated the terms of his supervised release after the district court had deferred revocation), cert. denied, — U.S. -, 113 S.Ct. 2352, 124 L.Ed.2d 260 (1993). Moreover, the thirty-six month term of imprisonment imposed by the district court was within the statutory maximum. See 18 U.S.C. § 3583(e)(3) (“[A] person whose term is revoked under this paragraph may not be required to serve" }, { "docid": "11394228", "title": "", "text": "policy statements are a different breed. Section 7B1.3 is clearly labeled, \"Policy Statement”; it is neither a guideline nor a policy statement that interprets a guideline. Chapter 7 policy statements fulfill a special advisory role. This court has found that the sentencing court is required only to \"consider\" Chapter 7 policy statements, United States v. Jones, 973 F.2d 605, 608 (8th Cir.1992) (citing 18 U.S.C. § 3583(e)), and that \"the Sentencing Commission intended the Chapter 7 policy statements to be merely advisory.” Id. at 607; see also United States v. Oliver, 931 F.2d 463, 465 (8th Cir.1991) (\"there are no binding guidelines addressing the sentence for a violation of a condition of supervised release, only a policy statement about a court's options in such a situation”). The Sentencing Commission expressly commented in Chapter 7 that it chose to issue advisory policy statements for the revocation of supervised release because a policy statement provides the district court with \"greater flexibility” than a guideline. U.S.S.G. Ch. 7, Pt. A3(a) (stating also that after period of evaluation, the Commission intends to promulgate \"revocation guidelines\"). United States v. Levi, 2 F.3d 842, 845 (8th Cir.1993). An earlier, yet post-Stinson Seventh Circuit case, however, held that Chapter 7 policy statements are binding on district courts. United States v. Lewis, 998 F.2d 497, 499 (7th Cir.1993). We need not resolve the conflict between these two cases, because we believe Levi sets forth the rule we must follow under our fact situation. Stinson teaches that policy statements that contravene a statute would not be binding. As to the imposition of concurrent or consecutive sentences (which was not the issue in Lewis), 18 U.S.C. § 3584(a) provides in relevant part: (a) Imposition of concurrent or consecutive terms. — If multiple terms of imprisonment are imposed on a defendant at the same time, or if a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment, the terms may run concurrently or consecutively.... Since Congress has specifically given district courts the discretion to impose consecutive or concurrent sentences under a fact" }, { "docid": "22714214", "title": "", "text": "of the term of supervised release,” that is, one-third of three years. 18 U.S.C. § 3583(g) (before 1994 amendment). The maximum sentence was two ■ years because Davis was on supervised release following conviction of a Class C felony. 18 U.S.C. § 3583(e)(3). . In the words of the district court, it was necessary to \"incapacitate Mr. Davis for as much time as I can incapacitate him so that he can receive appropriate medical and psychiatric treatment.\" . Some policy statements are binding on the district courts, but we concluded that U.S.S.G. § 7B1.4 is not one of them. United States v. Denard, 24 F.3d 599, 602 & n.* (4th Cir.1994). The Supreme Court has held that a Guidelines policy statement or commentary may be binding, but only if it \"interprets or explains a guideline.” Stinson v. United States, — U.S. -, -, 113 S.Ct. 1913, 1915, 123 L.Ed.2d 598 (1993); see also Williams v. United States, 503 U.S. 193, 199, 112 S.Ct. 1112, 1119, 117 L.Ed.2d 341 (1992) (plurality opinion). Chapter 7, unlike the chapters at issue in Stinson and Williams, contains no guidelines, and therefore a Chapter 7 policy statement cannot be an authoritative interpretation within the meaning of those cases. . This point is implicitly recognized in Denard, which relies in part on the Third Circuit's decision in a supervised release case. 24 F.3d at 602 (citing Blackston, 940 F.2d at 893). Further support for this point is that the relevant policy statement, U.S.S.G. § 7B1.4, draws no distinction between probation and supervised release. . See supra note 1. . For cases holding that Chapter 7 policy statements are non-binding in supervised release revocation proceedings, see United States v. Hill, 48 F.3d 228 (7th Cir.1995), overruling United States v. Lewis, 998 F.2d 497, 498-99 (7th Cir.1993); United States v. Mathena, 23 F.3d 87, 91-93 (5th Cir.1994); United States v. Sparks, 19 F.3d 1099, 1101 & n. 3 (6th Cir.1994); United States v. Anderson, 15 F.3d 278, 283-84 (2d Cir.1994); United States v. O'Neil, 11 F.3d 292, 301 n. 11 (1st Cir.1993); United States v. Levi, 2 F.3d" }, { "docid": "17735739", "title": "", "text": "(2d Cir.1994); U.S. v. Mathena, 23 F.3d 87 (5th Cir.1994); United States v. Sparks, 19 F.3d 1099 (6th Cir.1994); United States v. Lewi, 2 F.3d 842 (8th Cir.1993); United States v. Forrester, 19 F.3d 482 (9th Cir.1994). But see United States v. Lewis, 998 F.2d 497 (7th Cir.1993) (holding that, under Stinson, all Guidelines policy statements, including those in Chapter 7, are binding). Consistent with the majority of the Courts of Appeal considering the issue, we hold that a sentencing court must consider but is not bound by the policy statements of Chapter 7 in imposing sentence upon the revocation of probation. Under Stinson, commentary interpreting a guideline is binding and authoritative on the courts; under Williams, a policy statement prohibiting a district court from taking a specified action is binding. Section 7B1.4, at issue in this case, neither interprets a guideline nor prohibits the district court from taking a specified action. We note that, in Chapter 7, the Sentencing Commission expressly stated that it issued “advisory” policy statements for the revocation of supervised release rather than guidelines because a policy statement provides the district court with “greater flexibility” than a guideline. U.S.S.G. Ch. 7, Pt. A 3(a). Accordingly, consistent with Thompson and the reasoning set forth above, we hold that, while the district court in this ease was required to consider the Chapter 7 policy statements in determining Appellant’s sentence, the Court was not bound to apply the sentence set forth in section 7B1.4. There is no question the district court in this case was within its statutory authority when it sentenced Appellant to a 151-month term of incarceration, a sentence which was allowable at Appellant’s initial sentencing. A review of the transcript satisfies us that the district court considered, then rejected, the suggested sentencing range set forth in the section 7B1.4 Revocation Table. (3) Whether the district court overlooked language in 18 U.S.C. § 3565(a) providing it had discretion to sentence Appellant to one-third of his original sentence. Appellant contends that his sentence must be vacated because the district court was unaware that, pursuant to 18 U.S.C. §" }, { "docid": "17867270", "title": "", "text": "version of § 7B1.4, p.s. (applicable to the 1994 statute) indicates that the revocation range was intended to apply to both revocation and termination of supervised release. Application note 5 quotes the 1994 § 3583(g) to acknowledge the existence of a statutory minimum. The inclusion of § 3583(g) in this commentary implies that the revocation range was intended to apply to violations such as McGee’s: possession of drugs under 1994 § 3583(g). In conclusion, there appears to be no significance to the use of “terminate” in 1994 and “revoke” in 1995. The courts have treated “termination” of supervised release under 1994 § 3583(g) as if it were “revocation.” The guidelines themselves anticipate termination and revocation falling within the revocation table set forth in § 7B1.4(a), p.s. An argument similar to McGee’s was raised in United States v. Davis, 53 F.3d 638 (4th Cir.1995). The issue in Davis was whether the revocation range of Chapter 7 was binding or merely advisory (see discussion of United States v. Hill below). Davis rejected the defendant’s contention that the revocation range was binding only in non-drug possession cases. The court held that “[n]o reason justifies drawing [a] distinction between supervised release cases involving drugs and those that do not.” Davis, 53 F.3d at 642. “[Statutes should receive a sensible construction, such as will effectuate legislative intention, and, if possible, so as to avoid an unjust or absurd conclusion.” Id. (citation omitted). We conclude that the 1994 amendment did not alter the applicability of the guidelines to McGee’s detriment; the revocation table applied both in 1994 and 1995. Thus McGee faced the same imprisonment range, 21-24 months, under either the 1994 or 1995 version of the statute. However, one issue has not been raised by either party that may influence the foregoing analysis: United States v. Hill, 48 F.3d 228 (7th Cir.1995). (b) Guidelines are not binding under either the 1994 or 1995 statute under United States v. Hill McGee’s revocation hearing was held on January 13, 1995. United States v. Hill was issued January 30, 1995. Overruling United States v. Lewis, 998 F.2d 497" }, { "docid": "23334571", "title": "", "text": "court can also insist that, as part of its recitation supporting the plea, the government disclose the nuts and bolts of its case. Based on this information, the district court can decide whether to accept the plea at once or defer it until after the presentence report is prepared. The short of it is that there’s no conflict between these provisions, no catch 22 and no need to arrogate the power to vacate a plea that the dissent agitates for. But even if there were a conflict between the Federal Rules of Criminal Procedure and Guidelines Manual § 6B1, the Rules of Criminal Procedure would trump. As the dissent grudgingly recognizes, section 6B1 is not a sentencing guideline; it is a free-standing policy statement. Only actual guidelines, and their applicable commentary and policy statements, are binding. See Stinson v. United States, 508 U.S. 36, 42-43, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993); Williams v. United States, 503 U.S. 193, 201, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992). Section 6B1 is in Chapter Six of the Guidelines Manual. That chapter is made up entirely of policy statements and their commentary; it contains no guidelines. While there is no case law dealing with the status of Chapter Six policy statements, no fewer than ten circuits, including our own, have held that the highly analogous policy statements in Chapter Seven (dealing with violations of probation and supervised release) were not guidelines and therefore were not binding. See United States v. Forrester, 19 F.3d 482, 484 (9th Cir.1994), superseded by statute; United States v. Sparks, 19 F.3d 1099, 1101-02 & n. 3 (6th Cir.1994); United States v. Anderson, 15 F.3d 278, 283-84 (2d Cir.1994); United States v. O’Neil, 11 F.3d 292, 301 n. 11 (1st Cir.1993); United States v. Levi, 2 F.3d 842, 845 (8th Cir.1993); United States v. Hooker, 993 F.2d 898, 900-01 (D.C.Cir.1993); United States v. Thompson, 976 F.2d 1380, 1381 (11th Cir.1992) (per curiam); United States v. Headrick, 963 F.2d 777, 782 (5th Cir.1992); United States v. Lee, 957 F.2d 770, 773 (10th Cir.1992); United States v. Blackston, 940 F.2d 877," }, { "docid": "22139573", "title": "", "text": "(1991). But see United States v. Lewis, 998 F.2d 497, 499 (7th Cir.1993) (holding that the policy statements of Chapter 7 are binding). Moreover, no circuit faced with this issue has differentiated between kinds of revocations — i.e., those under § 3583(e) as opposed to those under § 3583(g). . Section 3583(g) provides that “[i]f the defendant is found by the court to be in the possession of a controlled substance, the court shall terminate the term of supervised release and require the defendant to serve in prison not less than one-third of the term of supervised release.” . For the reasons set forth later in this opinion, we do not believe en banc review is warranted. . We think it clear that if Congress had intended to make the provisions regarding the revocation of supervised release binding, then it would have simply directed the Sentencing Commission to promulgate guidelines, rather than give the Commission a choice between guidelines or policy statements. . No court has distinguished § 3583(e) from § 3583(g) when determining a maximum revocation sentence under § 7B 1.4(a), p.s. . In Williams, the Supreme Court held that “[w]here ... a policy statement prohibits a district court from taking a specified action, the statement is an authoritative guide to the meaning of the applicable guideline.\" Id.,-U.S. at -, 112 S.Ct. at 1119 (emphasis added). . Because the issue before the Court was whether commentary to the Guidelines was binding on sentencing courts, we regard the Court's statement regarding the binding nature of policy statements to be dictum. . Because we hold that the policy statements of Chapter 7 are advisory only, we reject Mathena’s contention that the district court had to give notice of its “departure.” A sentence which diverges from advisory policy statements is not a departure such that a court has to provide notice or make specific findings normally associated with departures under § 3553(b). See United States v. Jones, 973 F.2d 605, 608 (8th Cir.1992) (\"The court is not required by § 3583 to consider anything under § 3553(b).”); Blackston, 940 F.2d at 893" }, { "docid": "11525676", "title": "", "text": "Cir.1995); United States v. Hill, 48 F.3d 228 (7th Cir.1995); United States v. Milano, 32 F.3d 1499 (11th Cir.1994); United States v. Denard, 24 F.3d 599 (4th Cir.1994); United States v. Sparks, 19 F.3d 1099 (6th Cir.1994); United States v. Anderson, 15 F.3d 278 (2d Cir.1994); United States v. O'Neil, 11 F.3d 292 (1st Cir.1993); United States v. Levi, 2 F.3d 842 (8th Cir.1993); United States v. Hooker, 993 F.2d 898 (D.C.Cir.1993). Thus, as every circuit court that has addressed Chapter Seven of the Guidelines, both before and after Stinson, has held, we believe that the policy statements set out in Chapter Seven are not binding on the district courts but are merely advisory. Additionally, the Sentencing Commission itself has indicated, in its introduction to Chapter Seven, that the policy statements therein are advisory only. The Commission wrote that the policy statements in Chapter Seven are “the first step in an evolutionary process” designed to provide “greater flexibility to both the Commission and the courts.” U.S.S.G. Ch. 7, Ft. A5, A3(a). The introduction concludes: “The Commission expects to issue revocation guidelines after judges, probation officers, and practitioners have had an opportunity to apply and comment on the policy statements.” U.S.S.G. Ch.7 Pt. A5. Finally, even though the revocation range set forth in U.S.S.G. § 7B1.4 provides only a term of imprisonment upon revocation and not a consecutive term of supervised release, that Guideline would not, under Stinson, be binding upon the district court because it would violate a federal statute, i.e., 18 U.S.C. § 3583(h). Thus, even if Brady had raised this argument in a timely manner, we would have to conclude that the contention that U.S.S.G. § 7B1.4 prevents the application of 18 U.S.C. § 3583(h) to his situation is without merit." }, { "docid": "23209113", "title": "", "text": "Hurst, 78 F.3d 482, 484 (10th Cir.1996); United States v. West, 59 F.3d 32, 34 (6th Cir.1995); United States v. Anderson, 15 F.3d 278, 283-84 (2d Cir.1994); United States v. O’Neil, 11 F.3d 292, 301 n. 11 (1st Cir.1993); United States v. Hooker, 993 F.2d 898, 900 (D.C.Cir.1993); United States v. Cohen, 965 F.2d 58, 60-61 (6th Cir.1992); United States v. Blackston, 940 F.2d 877, 893 (3d Cir.1991). Guidelines commentary is generally an authoritative interpretation of the rules contained therein. See Stinson v. United States, 508 U.S. 36, 38, 45, 113 S.Ct. 1913, 1915, 1919, 123 L.Ed.2d 598 (1993). Nonetheless, numerous post-Stinson courts have concluded that the Chapter Seven provisions are merely advisory rather than mandatory, subject to the statutory maximum terms of imprisonment (“caps”) provided in 18 U.S.C. § 3583(e)(3). See, e.g., United States v. Pelensky, 129 F.3d 63, 69 (2d Cir.1997); United States v. Doss, 79 F.3d 76, 78 (7th Cir.1996); Hurst, 78 F.3d at 483-84 (collecting cases); United States v. Milano, 32 F.3d 1499, 1502-05 (11th Cir.1994); United States v. Mathena, 23 F.3d 87, 93 (5th Cir.1994). As this court explained in United States v. Hill, not all commentary interprets a guideline. 48 F.3d 228, 231 (7th Cir.1995). The policy statements contained in Chapter Seven are of this sort: they are “neither guidelines nor interpretations of guidelines.” Id.; accord, Anderson, 15 F.3d at 283-84. Rather, they “tell the district court how to exercise his discretion in the area left open by the guidelines and the interpretive commentary on the guidelines.” Hill, 48 F.3d at 231. While the Chapter Seven policy statements are entitled to “great weight,” they do not bind the sentencing judge; while they are an “element in his exercise of discretion,” they are not a substitute for that discretion. Id.; accord, United States v. Davis, 53 F.3d 638, 640-41 6 n. 6 (4th Cir.1995). The Commission has provided a Revocation Table and advice to assist a sentencing court in the calculus of revocation. See U.S.S.G., ch. 7, pt. A-B; id. at § 7B1.4; Lee, 78 F.3d at 1239; United States v. McGee, 60 F.3d 1266," }, { "docid": "23334572", "title": "", "text": "Guidelines Manual. That chapter is made up entirely of policy statements and their commentary; it contains no guidelines. While there is no case law dealing with the status of Chapter Six policy statements, no fewer than ten circuits, including our own, have held that the highly analogous policy statements in Chapter Seven (dealing with violations of probation and supervised release) were not guidelines and therefore were not binding. See United States v. Forrester, 19 F.3d 482, 484 (9th Cir.1994), superseded by statute; United States v. Sparks, 19 F.3d 1099, 1101-02 & n. 3 (6th Cir.1994); United States v. Anderson, 15 F.3d 278, 283-84 (2d Cir.1994); United States v. O’Neil, 11 F.3d 292, 301 n. 11 (1st Cir.1993); United States v. Levi, 2 F.3d 842, 845 (8th Cir.1993); United States v. Hooker, 993 F.2d 898, 900-01 (D.C.Cir.1993); United States v. Thompson, 976 F.2d 1380, 1381 (11th Cir.1992) (per curiam); United States v. Headrick, 963 F.2d 777, 782 (5th Cir.1992); United States v. Lee, 957 F.2d 770, 773 (10th Cir.1992); United States v. Blackston, 940 F.2d 877, 893 (3d Cir.1991); see also United States v. Cade, 279 F.3d 265, 270 n. 2 (5th Cir.2002) (“We have held ... that some policy statements are advisory only.”). There is no plausible argument that Chapter Six policy statements are binding, and the dissent doesn’t even try to make one. Because section 6B1 is hortatory, while Rules 11 and 32 are mandatory, any conflict between the rules and 6B1 would have to be resolved in favor of the rules. Finally, Guidelines Manual § 6B1 can’t even be used as an aid to interpreting Rule 11 for the obvious reason that it came along many years after the rule, and was drafted by a wholly different body. Interpretation, to be worthy of the name, must be a sincere effort to ascertain the meaning that the drafters of the text were seeking to capture, not an expense-paid shopping-spree through the bazaar of all conceivable meanings, rummaging for the one we like best. Our inquiry is generally limited to the document’s language though, on occasion, we do take a" }, { "docid": "22949183", "title": "", "text": "for up to two years. See 18 U.S.C. § 3583(e)(3) (1994). In doing so, the District Court is not obliged to follow any binding sentencing guidelines; however, it is directed to consider the nonbinding policy statements found in Chapter Seven of the Guidelines Manual. See U.S.S.G. §§ 7B1.1-1.5 (1994). The policy statements applicable to this case recommended revocation of supervised release and a term of imprisonment from eighteen to twenty-four months, based on the facts that the conduct violating supervised release was a “Grade B Violation” and Sweeney was in Criminal History Category V at the time of his original sentencing. See U.S.S.G. §§ 7B1.1(a)(2), 7B1.3(a)(1), 7B1.4 (1995). The Sentencing Commission has stated, however, that the Chapter Seven policy statements are only “the first step in an evolutionary process.” U.S.S.G. Ch. 7, Pt. A 5 (1995). This Court has held that the policy statements are merely “advisory.” United States v. Anderson, 15 F.3d 278, 284 (2d Cir.1994); accord United States v. Hill, 48 F.3d 228, 231 (7th Cir.1995); United States v. Hooker, 993 F.2d 898, 900-901 (D.C.Cir.1993). Therefore, the fact that Sweeney received a term of imprisonment within the sentencing range recommended by the policy statements does not preclude appellate review. Compare United States v. Chabot, 70 F.3d 259, 260-61 (2d Cir.1995) (sentencing court’s failure to depart from binding guideline range is generally not renewable on appeal). Instead, since no guideline is applicable, we review the District Court’s sentence to see if it is “plainly unreasonable.” See 18 U.S.C. § 3742(a)(4) (1994). Sweeney contends that several mitigating factors make his sentence plainly unreasonable. First, he points out that the New Jersey state court imposed a sentence of only four months for causing obscene material to be sent to a minor. Thus, Sweeney argues, the District Court’s eighteen-month sentence for violation of supervised release is excessive in comparison. We note, however, that a comparison of the two sentences need not be determinative, since the District Court’s sentence was not intended to be a sanction for Sweeney’s conduct, but rather for the “breach of trust” committed against the District Court. See U.S.S.G." }, { "docid": "22081767", "title": "", "text": "Having examined the records in these five cases with care, we are satisfied that the district court adequately considered the policy statements of Chapter 7 along with the sentencing objectives of deterrence, just deserts, incapacitation, and rehabilitation, as required by § 3553(a). We conclude there was no abuse of discretion. See United States v. Carr, 66 F.3d 981, 983 (8th Cir.1995) (per curiam). Accordingly, the judgments are affirmed. . The term of imprisonment that may be imposed upon revocation of supervised release is limited by statute to not more than five years for persons convicted of class A felonies, except for certain Title 21 drug offenses; not more than three years for class B felonies; not more than two years for class C or D felonies; and not more than one year for class E felonies. 18 U.S.C. §§ 3583(b) & (e)(3). . The Honorable Richard H. Battey, United States District Judge for the District of South Dakota, presided in this case and in those of George Charles Hawk Wing, Gene Alan Ross-man, and Warren Red Cloud. . The Honorable Karen E. Schreier, United States District Judge for the District of South Dakota, presiding. . See, e.g., United States v. Davis, 53 F.3d 638, 642 (4th Cir.1995); United States v. Hill, 48 F.3d 228, 231-32 (7th Cir.1995); United States v. Sparks, 19 F.3d 1099, 1101-02 & n. 3 (6th Cir.1994); United States v. Forrester, 19 F.3d 482, 484 (9th Cir.1994); United States v. Anderson, 15 F.3d 278, 283-84 (2d Cir.1994); United States v. O’Neil, 11 F.3d 292, 301 n. 11 (1st Cir.1993); United States v. Hooker, 993 F.2d 898, 900-01 (D.C.Cir.1993); United States v. Thompson, 976 F.2d 1380, 1381 (11th Cir.1992) (per curiam); United States v. Headrick, 963 F.2d 777, 782 (5th Cir.1992); United States v. Lee, 957 F.2d 770, 773 (10th Cir.1992); United States v. Blackston, 940 F.2d 877, 893 (3d Cir.1991). . The Sentencing Commission has indicated that the usefulness of the sentencing data it gathers depends upon the specificity and extent of the information presented in the statement of reasons. See United States Sentencing Commission, Report to" }, { "docid": "22139570", "title": "", "text": "any statute or guideline”). But see Lewis, 998 F.2d at 499 (holding that Stinson compels the conclusion that all policy statements, including those of Chapter 7, are binding). B We also reject Mathena’s conten- ' tion that his sentence of thirty-six months imprisonment was plainly unreasonable. While a final hearing on the government’s motion to revoke Mathena’s sentence re- mained pending, Mathena repeatedly and willfully violated other conditions of his supervised release by leaving the Western District of Texas without permission and failing to report for substance abuse treatment. See United States v. Brooks, 976 F.2d 1358, 1361 (10th Cir.1992) (determining that a defendant’s revocation sentence was reasonable where the defendant repeatedly violated the terms of his supervised release after the district court had deferred revocation), cert. denied, — U.S. -, 113 S.Ct. 2352, 124 L.Ed.2d 260 (1993). Moreover, the thirty-six month term of imprisonment imposed by the district court was within the statutory maximum. See 18 U.S.C. § 3583(e)(3) (“[A] person whose term is revoked under this paragraph may not be required to serve more than 3 years in prison if the offense for which the person was convicted was a Class B felony_”). Under these circumstances, we cannot conclude that Mathena’s sentence was plainly unreasonable. Ill For the foregoing reasons, we AFFIRM the sentence imposed by the district court. . Those standard conditions required, inter alia, that Mathena not commit another federal, state, or local crime, and that he not leave the judicial district without the permission of the court or his probation officer. . A court may require a person who has violated a condition of his supervised release “to serve in prison all or part of the term of supervised release without credit for time previously served on postrelease supervision.\" 18 U.S.C. § 3583(e)(3). . See United States Sentencing Commission, Guidelines Manual, Chapter 7 (Nov. 1992) (entitled \"Violations of Probation and Supervised Release”). .According to U.S.S.G. § 7B 1.4(a), p.s., the range of imprisonment applicable upon revocation is determined by plotting a defendant's grade of violation against his criminal history category at the time of his" } ]

[ { "docid": "3531035", "title": "", "text": "could find something in the background of most judges which in many cases would lead that person to conclude that the judge has a possible temptation to be biased. But not all temptations are created equal.” Del Vecchio, 31 F.3d at 1372 (internal quote omitted). Nevertheless, the presumption is rebuttable. Sometimes, “the influence is so strong that we may presume actual bias,” Del Vecchio, 31 F.3d at 1375; see Withrow, 421 U.S. at 47, 95 S.Ct. 1456. In rare cases, there may even be evidence of actual bias. See Bracy, 520 U.S. at 905, 117 S.Ct. 1793; Bracy v. Schomig, 286 F.3d 406, 411 (7th Cir.2002) (en banc). To prove disqualifying bias, a petitioner must offer either direct evidence or “a possible temptation so severe that we might presume an actual, substantial incentive to be biased.” Del Vecchio, 31 F.3d at 1380. Absent a “smoking gun,” a petitioner may rely on circumstantial evidence to prove the necessary bias. Bracy, 286 F.3d at 411-412; id. at 422 (Posner, J., concurring in part; dissenting in part); id. at 431 (Rovner, J., concurring in part; dissenting in part). The question for us is whether the decision of the Wisconsin court’s finding that Franklin failed to show actual bias was contrary to clearly established federal law, as articulated by the U.S. Supreme Court, or was based on either an unreasonable application of established principles or an unreasonable determination of the facts. See Williams v. Taylor, 529 U.S. 362, 376, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). On direct appeal, Franklin challenged his conviction and sentence on due process grounds based on the federal Constitution’s guarantee of a defendant’s right to be tried by an impartial judge. As noted above, the Wisconsin Court of Appeals limited its analysis to an assessment of his claim under the its own decision in Rochelt, 165 Wis.2d 373, 477 N.W.2d 659. Rochelt sets forth a two-part test to determine whether a defendant’s due process right to an impartial judge has been violated. Rochelt, 477 N.W.2d at 661. The first, a “subjective” inquiry, is based on the judge’s own determination" } ]

[ { "docid": "11382801", "title": "", "text": "that McDuffie’s “past dealing with law enforcement, including all the surrounding circumstances of his past criminal record and the penalties or rewards he received, were relevant to the jury’s consideration of the testimony he would give at the trial.” Dansby urged, among other things, that the trial court’s right to limit testimony “must be weighed against the defendant’s confrontation rights and fair trial rights guaranteed by the Sixth Amendment.” The Arkansas Supreme Court concluded that Dansby’s proffered evidence was “not relevant to show bias,” and upheld the trial court’s ruling. 893 S.W.2d at 339. The state supreme court opined that Dansby had not proffered direct evidence of an agreement or promise of immunity, and that a jury could not have made a connection between McDuffie’s arrests and his alleged bias in the Dansby trial without speculation or conjecture. Id. In his federal habeas petition, Dansby challenged the trial court’s ruling as a violation of his rights under the Sixth Amendment. Dansby complained that the ruling unconstitutionally precluded him from cross-examining McDuffie and from introducing extrinsic evidence to expose his bias and motive to fabricate. But cf. Driver v. Landers, 444 Fed.Appx. 934, 936 (9th Cir.2011) (“The Supreme Court has never held that the Confrontation Clause requires, in addition to cross-examination, the admission of extrinsic evidence for the purpose of establishing a witness’s motive to lie.”); Brown v. Ruane, 630 F.3d 62, 70-71 (1st Cir.2011) (“[T]he Supreme Court’s Confrontation Clause jurisprudence left a defendant’s right to introduce extrinsic impeachment evidence as an open constitutional question.”). The district court dismissed this claim on the ground that it was procedurally defaulted. The court concluded that Dans-by never presented a claim of federal constitutional error in his direct appeal to the state supreme court, and that the claim was therefore defaulted. See O’Sullivan v. Boerckel, 526 U.S. 838, 848, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). The district court noted that Dansby’s brief on direct appeal included one mention of the Sixth Amendment, but reasoned that Dansby failed to assert that the trial court’s ruling violated his federal constitutional rights. Dansby argues that he" }, { "docid": "7386406", "title": "", "text": "phrase that extinguishes the trial court’s duty to evaluate and possibly exclude evidence otherwise violative of the Rules. Regardless of the importance of bias evidence, “the trial court has considerable discretion as to how and when bias may be proved and as to what collateral evidence for purposes of impeachment is material.” United States v. Higgins, 362 F.2d 462, 464 (7th Cir.1966). Sekulovski seeks support for his per se rule from Crowe v. Bolduc, 334 F.3d 124 (1st Cir.2003), but his reliance is misplaced. In that case, the First Circuit considered whether the district court abused its discretion when it limited cross-examination of a witness on his contingency fee arrangement — a bias inquiry the First Circuit found to be vital. Id. at 132 (citing United States v. Valona, 834 F.2d 1334, 1343 (7th Cir.1987)). The Crowe court ultimately held that it was not an abuse of discretion to limit cross-examination of even witness bias pursuant to Rule 403. Id. at 134. We likewise find that the district court did not abuse its discretion in its evidentiary decisions in this case. The court properly applied the Federal Rules of Evidence, ruling that some of the proffered evidence was of little or no probative value, that its value would be substantially outweighed by risk of confusion or wasted time, and that much of the evidence consti tuted inadmissible hearsay. In his opening brief, Sekulovski never addressed — let alone refuted — the district court’s Rule 401, 403, and 802 analyses. Only in his reply brief does Sekulovski argue the propriety of any evidentiary holding, and even if this abortive attempt had any merit— which it did not — it would have been too late. See Bodenstab v. County of Cook, 569 F.3d 651, 658 (7th Cir.2009). Regardless, a reasonable person could take the well-reasoned view adopted by the district court, so none of its challenged evidentiary rulings were erroneous. Sekulovski’s ultimate argument is that the cumulative effect of these evidentiary decisions was to prejudice the jury because he was unable to attack Luttner’s credibility ad nauseam. The district court did note" }, { "docid": "14065460", "title": "", "text": "to, or interfere with, a prompt trial, so that [Bracy’s] case could be tried before, and camouflage the bribe negotiations in,” another murder case. Id. at 908, 117 S.Ct. 1793. And indeed, Bracy’s attorney declared himself ready for trial very quickly and did not ask for additional time even after the state announced that “if petitioner were convicted, it would introduce petitioner’s then-pending Arizona murder charges as evidence in aggravation.” Id. at 907-08, 117 S.Ct. 1793. The Supreme Court held that Bracy’s showing was sufficient to entitle him to discovery on his compensatory bias theory. In doing so, however, the Court made it abundantly clear that it was not authorizing similar relief to every criminal defendant who had been convicted or sentenced by Judge Maloney: “We emphasize ... that petitioner supports his discovery request by pointing not only to Maloney’s conviction for bribe taking in other cases, but also to additional evidence, discussed above, that lends support to his claim that Maloney was actually biased in petitioner’s own case.” Id. at 909, 117 S.Ct. 1793. And, indeed, in the post-Bracy case of United States ex rel. Dower v. O’Sullivan, No. 98 C 2415, 1999 WL 98340, at *4 (N.D.Ill. Feb.19, 1999), involving another individual convicted in a trial presided over by Judge Maloney, Judge Shadur held that the petitioner was not entitled to relief because he had not made a showing of compensating bias in his particular case. Summerlin’s case is much more like Dower’s than Bracy’s. The majority cites not a single fact suggesting that Judge Marquardt was under the influence of marijuana during Summerlin’s trial. Rather, the majority relies on evidence that, nearly a decade after Summerlin’s trial, Judge Marquardt admitted to being addicted to marijuana. We have no indi cation, even as of the time of Judge Mar-quardt’s conviction, whether this addiction involved hourly, daily or weekly úse of the drug, nor do we know whether it had become progressively worse over the years. There is nothing to suggest that the addiction affected Marquardt’s judgment or interfered in any way with his judicial duties. Being addicted, after" }, { "docid": "23205199", "title": "", "text": "See, e.g., Kang v. Att’y Gen. of the U.S., 611 F.3d 157, 166-67 (3d Cir.2010) (petitioner was entitled to CAT relief when “[t]he record compels the conclusion that if Kang is removed to China it is more likely than not that she will be beaten, suffocated, deprived of sleep, shocked with electrical current, and/or forced to stand for long periods of time, and that this would be done with the purpose of causing her severe pain and suffering”). These examples far outstrip what Cole has alleged with regard to “Central” detention in this case. Unlike in Jean-Pierre or Kang, neither the IJ nor the BIA found that Cole would suffer such egregious physical abuse, or anything even remotely like that. The BIA’s determination to this effect does not constitute legal error. Cole’s remaining arguments are unavailing, since they contest the weight and significance given to various pieces of evidence, which we lack jurisdiction to review. To the extent Cole’s claim is a legal one asserting the BIA and IJ failed to provide a reasoned explanation of its decision, it is well established that “the IJ and the BIA need not address specifically each claim the petitioner made or each piece of evidence the petitioner presented”; they need only “consider the issues raised and announce their decision in terms sufficient to enable a reviewing court to perceive that they have heard and thought and not merely reacted.” Carrizo v. U.S. Att’y Gen., 652 F.3d 1326, 1332 (11th Cir.2011) (internal quotation marks omitted). The IJ’s thorough, twenty-three-page opinion, and the BIA’s five-page affirmation, fully meet this threshold. Thus, the BIA and the IJ properly denied Cole CAT relief. E. Finally, Cole argues that the IJ’s denial of his motion for a continuance violated his right to due process, because he was unable to obtain additional documentary evidence proving his disabilities and difficulties in school in Jamaica. To demonstrate a constitutional violation, Cole must establish that he “was deprived of liberty without due process of law and that the purported errors caused [him] substantial prejudice.” Lapaix v. U.S. Att’y Gen., 605 F.3d 1138," }, { "docid": "3788267", "title": "", "text": "by lack of counsel at his preliminary hearing. Aside from petitioner’s own allegation, there is no support for the contention that the sheriff coerced the witnesses and suppressed evidence. At the State habeas corpus hearing the petitioner attempted to introduce in evidence an undated writing purporting to establish that two of the witnesses had given false testimony against petitioner. This writing was not admitted in evidence because it was not properly identified. One of the signers did not testify at the State hearing, and the other signer testified that he signed only what he thought was a song, and had signed on all of the pages of the writing. The writing offered by petitioner was signed on only one page. There was also no evidence that the purportedly perjured testimony was knowingly used by the state. The jury heard the evidence and was the judge of the credibility of the witnesses. Mere recantation of testimony in itself is not grounds for invoking the due process clause. Petitioner further alleges that he was not present at all stages of his trial. Specifically, he alleges that he was not present when it was agreed that the jury would not be sequestered during recesses of the court, and during adjournment for the evening. The failure to sequester the jury is said to have exposed them to hostile press coverage of the case, and thus prejudiced petitioner’s right to a fair trial. No evidence was offered at the State habeas corpus hearing to prove that petitioner was not present at all times, and the record contains a certification by the trial court that the petitioner was present at all stages of the trial. Thus, in the face of petitioner’s failure to offer any evidence-on the point, this court could well accept the State court’s finding that petitioner was present at all stages of his trial. However, even assuming that petitioner was not present at the decision to separate the jury, this court feels petitioner was not denied due process. Petitioner relies heavily on Near v. Cunningham, 313 F.2d 929 (4th Cir. 1963), where the" }, { "docid": "13291063", "title": "", "text": "Furthermore, and in any event, merely introducing a large volume of documents into evidence, without attempting to place them in a proper context or to provide the Court with some guidance as to what they mean, is not acceptable. See, e.g., Scurtu v. Hospitality & Catering Mgmt. Servs., 2011 WL 521621, *5 (S.D.Ala.2011) (rejecting a “Here are our documents, Judge. You figure it out” method of proving a case). Given this rather surprising lack of testimonial or other evidence on such a key point, and even though as indicated above it had no obligation to do so, the Court itself undertook a careful review of the Exhibits and found one page of Exhibit 29 (list of unreimbursed travel and entertainment expenses) and several pages in Exhibit 38 (list of expenses with unidentified payees) that on their face look like they may be parts of monthly statements for the Entireties Account and which include notations of “5,650.00 Direct Deposit-Payroll Meyer Unkovic Sc.” These notations only total $56,500, and in the absence of any explanation as to what they actually mean, the Court would be reluctant to accord them treatment as evidence sufficient to meet the Trustee’s burden on the transfer issue. Thus, had Judge Marko-vitz not opted to defer ruling on the Rule 52(c) motions until the conclusion of trial, or had the Defendants chosen not to put on a case after he did indicate that he would so defer, it may have been found that the Trustee failed to meet his burden on this essential issue. See Tr. Tran, at 74 (Defense counsel arguing that “[t]he Plaintiff has not put in any evidence with respect to deposits into the entireties account”). Of course, neither of those things happened and so, as was indicated above, the Court must now consider the transfer issue on the basis of the entire record. When it does so, the Court finds evidence in the testimony of the Debtor, given during the Defendants’ case, to the effect that it has been his consistent practice since his marriage in 1984 to deposit all his regular income into" }, { "docid": "22393077", "title": "", "text": "also fixed. See n. 9, supra. We conclude that petitioner has shown “good cause” for discovery under Rule 6(a). In Harris, we stated that “where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to relief, it is the duty of the court to provide the necessary facilities and procedures for an adequate inquiry.” 394 U. S., at 300. Habeas Corpus Rule 6 is meant to be “consistent” with Harris. Advisory Committee’s Note on Habeas Corpus Rule 6, 28 U. S. C., p. 479. Ordinarily, we presume that public officials have “'properly discharged their official duties.’” Armstrong, 517 U. S., at 464 (quoting United States v. Chemical Foundation, Inc., 272 U. S. 1, 14-15 (1926)). Were it possible to indulge this presumption here, we might well agree with the Court of Appeals that petitioner’s submission and his compensatory-bias theory are too speculative to warrant discovery. But, unfortunately, the presumption has been soundly rebutted: Maloney was shown to be thoroughly steeped in corruption through his public trial and conviction. We emphasize, though, that petitioner supports his discovery request by pointing not only to Maloney’s conviction for bribe taking in other cases, but also to additional evidence, discussed above, that lends support to his claim that Maloney was actually biased in petitioner’s oivn case. That is, he presents “specific allegations” that his trial attorney, a former associate of Maloney’s in a law practice that was familiar and comfortable with corruption, may have agreed to take this capital case to trial quickly so that petitioner’s conviction would deflect any suspicion the rigged Rosario and Chow cases might attract. It may well be, as the Court of Appeals predicted, that petitioner will be unable to obtain evidence sufficient to support a finding of actual judicial bias in the trial of his case, but we hold that he has made a sufficient showing, as required by Habeas Corpus Rule 6(a), to establish “good cause” for discovery. Although, given the facts of this particular case," }, { "docid": "12548484", "title": "", "text": "continue to do so,” and that in his opinion, the defendant would commit violent criminal acts in the future. Id. The situation in Burns is analogous to' the instant case. Thus, the precedents make clear that the evidence of the three attorneys was admissible under Texas law. Even if the evidence was not admissible in Texas, Jernigan has not demonstrated that the evidentiary error, if any, made his trial fundamentally unfair.' He had every opportunity to cross-examine the attorneys and to call his own witnesses to rebut their testimony. Relying on Malone’s affidavit, Jernigan argues that the attorneys’ testimony was full of misrepresentations. Malone’s affidavit, however, does not indicate that he misrepresented the truth when he testified. Instead, he says in his affidavit that he now believes that the judge should not have permitted the jury to consider his testimony because he was not qualified to testify. Moreover, the testimony of the three attorneys played a small role in the trial. The state presented evidence that Jernigan had been involved in numerous other crimes including several other violent burglaries. The state also presented evidence concerning Jernigan’s behavior while in custody that indicated he was a violent person. Finally, seven law enforcement officers testified that Jernigan was reputed to be a violent, dishonest person. Considered in the light of all the other evidence, the testimony of the three attorneys was not a critical, highly significant part of the trial and, thus, does not, in any event, justify habeas corpus relief. Ill For all of the foregoing reasons, we AFFIRM the decision of the district court. AFFIRMED. . Jernigan also contends that the state court was biased against him. He argues that the state court's factual findings and one of its statements demonstrate bias. Jernigan failed to raise this argument before the district court, and, hence, he waived it. Lincecum v. Collins, 958 F.2d 1271, 1280-1281 (5th Cir.1992). In addition, this argument is totally without merit. Jernigan argues that the lack of support for the state court's findings in the record proves bias. This argument assumes that the record does not support" }, { "docid": "10349041", "title": "", "text": "of the United States. We further find and determine that petitioner was vigorously and ably represented by the five defense attorneys who represented him before the court-martial and the Board of Appeals. We find that he has been vigorously and ably represented by his present attorney before us and before the Court of Appeals. It follows that petitioner has not established the existence or carried the burden incident to the possible issue suggested in the Court of Appeals’ opinion. Petitioner Has Not Sustained Any Other Ground for the Issuance of the Writ We turn now to the other grounds for relief alleged in petitioner’s first amended petition for writ of habeas corpus. Paragraph 4a of petitioner’s amended petition was the paragraph in which petitioner raised the question of his incompeteney to stand trial. The other allegations of petitioner’s amended petition complain about factual determinations made on conflicting testimony concerning petitioner’s competency at the time of the offense; about an alleged inadequacy of the pre-trial investigation of petitioner’s background as it related to his mental condition; about the alleged inadequate and poor handling of petitioner’s defense by his counsel; about the admission and exclusion of evidence; about alleged violations of certain rights under the Uniform Code of Military Justice; and about an atmosphere of extreme bias and prejudice against petitioner in connection with the court-martial trial. Present counsel for petitioner fairly states that “the enlargement of petitioner’s claims as set out in his Amended' Petition are in compliance with the-Court’s suggestions * * * that all' complaints relative to competency, due-process and constitutional rights be set-out so that all matters may be determined once and for all” (page 4 of petitioner’s suggestions in support of peti tion for habeas corpus). No evidence was adduced by petitioner in specific support of any of those additional allegations. All of the evidence introduced in this habeas corpus proceeding that was not some part of petitioner’s military proceedings or data seen and considered by the military authorities related to and revolved around petitioner’s mental condition and the possible issue of petitioner’s competency to stand trial," }, { "docid": "2124118", "title": "", "text": "had not waived § 2254(e)(2). In Williams v. Norris, 576 F.3d 850, 860 (8th Cir.2009), the Eighth Circuit also rejected an argument that the state waived any objection to § 2254(e)(2) by not objecting to petitioner's motion for an evidentiary hearing in the district court. .Habeas Rule 7(a) addresses the expansion of the habeas record once a petition for discovery has been granted. It states: \"If the petition is not dismissed, the judge may direct the parties to expand the record by submitting additional materials relating to the petition. The judge may require that these materials be authenticated.” Much later, the parties also stipulated to expanding the record with the juror questionnaires. For discussion on that issue, see our analysis of Claim (13)(D) infra. . Indeed, in this case, the district court did not seem to rely on the new evidence in rendering its decision. Even if we were to consider the improperly introduced evidence, we find that it does not help establish ineffective assistance. If anything, it shows that counsel took steps to prepare for mitigation including meeting with Dr. Chiappone prior to his testifying. . To the extent the dissent references material from the newly admitted depositions in the federal habeas proceedings, we note that because Pinholster precludes us from considering such material, we may not read the trial transcript through the lens of the later deposition testimony. Rather, our examination of the state court record must remain completely uninformed by the subsequent testimony introduced in the district court below. . A residual doubt theory during mitigation essentially asks the jury to consider as mitigating any lingering doubt that they might still have as to the defendant’s guilt. It operates in the space between certainty \"beyond a reasonable doubt” and \"absolute certainty.” State v. Chinn, No. 11835, 1991 WL 289178, at *20 (Ohio Ct.App. Dec. 27, 1991). After Moore’s trial, the Ohio Supreme Court repudiated it as a valid mitigation theory. See State v. McGuire, 80 Ohio St.3d 390, 686 N.E.2d 1112, 1123 (1997). . Although the dissent does not use the term “residual doubt theory,” it claims" }, { "docid": "22663924", "title": "", "text": "did not hold an evidentiary hearing on the habeas petition, there is no indication in the record of the extent to which Mr. Tamburo may have consulted petitioner’s previous attorney, the attorneys for the other defendants, or the files of the Legal Aid Society. What the record does disclose on this claim is essentially a combination of two factors: the entry of counsel into the case immediately before trial, and his handling of the issues that arose during the trial. As respondent must concede, counsel’s last-minute entry into the case precluded his compliance with the state rule requiring that motions to suppress evidence be made before trial, even assuming that he had sufficient acquaintance with the case to know what arguments were worth making. Furthermore, the record suggests that he may have had virtually no such acquaintance. In the first place, he made no objection to the admission in evidence of the objects found during the search of the car at the station house after the arrest of its occupants, although that search was of questionable validity under Fourth Amendment standards, see infra. Second, when the prosecution offered in evidence the bullets found in the search of petitioner’s home, which had been excluded on defense objection at the first trial, Mr. Tamburo objected to their admission, but in a manner that suggested that he was a stranger to the facts of the case. While he indicated that he did know of the earlier exclusion, he apparently did not know on what ground the bullets had been excluded, and based his objection only on their asserted irrelevance. Later in the trial he renewed his objection on the basis of the inadequacy of the warrant, stating, “I didn’t know a thing about the search Warrant until this morning.” App. 130. Third, when prosecution witness Havicon made an in-court identification of petitioner as the man who had threatened him with a gun during one of the robberies, Mr. Tamburo asked questions in cross-examination that suggested that he had not had time to settle upon a trial strategy or even to consider whether petitioner" }, { "docid": "12846324", "title": "", "text": "seems to contend that Judge Garippo’s supposed appearance of bias in some way portended his hidden actual bias, we shall consider whether the evidence in this case is sufficient to make a showing of actual bias. The preceding section of this opinion — on the appearance of bias — resolves much of this question. Because none of the evidence discussed previously supports the inference that Judge Garippo had an actual substantial incentive to be biased, neither does it support the inference that he was actually biased. But Del Vecchio presents other circumstantial evidence adduced in the habeas corpus proceedings, which is meant to prove Judge Garippo’s bias. We shall consider whether this evidence possibly supports the inference of actual bias. Judge Garippo gave a deposition in these proceedings, in which he admitted that he personally feels betrayed by defendants who commit crimes after he has been lenient when sentencing them. Del Vecchio recounts this statement to argue that Judge Garippo felt similar antipathy towards him. But most sentencing judges probably feel this sense of betrayal; it is a natural emotion, though hardly a disqualifying interest. Taken to its logical conclusion, this “predisposition” theory would prevent a trial judge from trying and sentencing someone a second time — a common occurrence in our courts which, as the Supreme Court recently noted, does not raise concerns about bias. See Liteky, — U.S. at -, 114 S.Ct. at 1155. Judge Garippo’s general antipathy toward defendants who abuse his lenience is akin to Justice Embry’s general antipathy toward insurance companies that the Supreme Court found to be insufficient to disqualify the justice in Aetna. Del Vecchio next points to two other pieces of circumstantial evidence he obtained in discovery for the purposes of this petition. He notes that Judge Garippo’s courtroom clerk had checked out the Christiansen case files before the Canzonieri trial started. The implication is that Judge Garippo took an unusual interest in Del Vecchio’s case, and that this unusual interest points to bias. But this is like saying that an appellate judge who cheeks out a record before oral argument is" }, { "docid": "19902725", "title": "", "text": "bias by a preponderance of the evidence and we think this is the best lens through which to view the conclusion the trial judge reached. The trial judge noted in his opinion: “Given the speculative quality about when [MM] knew something about DeBurgo, a conclusion that she lied about her lack of knowledge lacks a solid basis in the evidence.” He concluded: “From these findings, there follows the ruling that defendant has failed to make out an adequate showing of dishonesty during voir dire of the venire.” Essentially, though he may not have had full confidence in MM’s truthfulness at the post-trial hearing (and therefore at voir dire) the judge did not find that DeBurgo mustered sufficient evidence on the other side to show, by a preponderance, that MM necessarily knew of DeBurgo before trial. Indeed, the evidence that DeBurgo points to regarding MM’s alleged familiarity with DeBurgo is not as compelling as he indicates. First, we note that the trial judge made a careful inquiry and apparently uncovered no evidence the MM made any comments about knowing DeBurgo before or during deliberations. In addition, the trial judge may well have determined that LC’s perception of MM’s bathroom comments was skewed by the strong emotions that LC experienced post-trial. Similarly, the written account by the court officer was vague as to what precisely MM told him and whether she discovered the apparently tenuous connection to DeBurgo before or during trial. Finally, KM’s testimony only provided evidentiary support that LC believed that MM had said that she (MM) knew DeBurgo; KM’s testimony was not direct evidence of anything MM actually said. Ultimately, the evidence DeBurgo offered regarding MM’s alleged bias presented the trial judge with, at most, a close case. That a different factfinder might have reached a different conclusion is not sufficient to reverse the state court’s determination on habeas review. Though DeBurgo raises legitimate questions about the trial judge’s reasoning, he does not undermine the presumption of correctness on habeas by presenting us with clear and convincing evidence to the contrary. We therefore affirm the district court’s denial of" }, { "docid": "14065459", "title": "", "text": "even more circumspection than the latter.) Bracy was convicted and sentenced to death in a case presided over by Judge Maloney, who was later convicted of fixing criminal trials as part of a widespread federal corruption probe of state trial judges in Chicago. Judge Maloney did not take a bribe in Bracy’s case, but Bra-cy claimed that Maloney may have engaged in compensating bias by being harsh on non-bribing defendants to cover his leniency to defendants who did pay bribes. In support of his claim, Bracy presented the following evidence: His murder trial “was sandwiched tightly between other murder trials that Maloney fixed.” Id. at 907, 117 S.Ct. 1793. Moreover, Maloney had appointed one of his former partners as Bracy’s counsel, and Bracy introduced evidence that at least one of Maloney’s former associates “was actively involved in assisting Maloney’s corruption, both before and after [Malo-ney] became a judge, and also bribed Ma-loney himself.” Id. Bracy’s theory was that Maloney had appointed his former partner so that Maloney could be sure Bracy’s lawyer “would not object to, or interfere with, a prompt trial, so that [Bracy’s] case could be tried before, and camouflage the bribe negotiations in,” another murder case. Id. at 908, 117 S.Ct. 1793. And indeed, Bracy’s attorney declared himself ready for trial very quickly and did not ask for additional time even after the state announced that “if petitioner were convicted, it would introduce petitioner’s then-pending Arizona murder charges as evidence in aggravation.” Id. at 907-08, 117 S.Ct. 1793. The Supreme Court held that Bracy’s showing was sufficient to entitle him to discovery on his compensatory bias theory. In doing so, however, the Court made it abundantly clear that it was not authorizing similar relief to every criminal defendant who had been convicted or sentenced by Judge Maloney: “We emphasize ... that petitioner supports his discovery request by pointing not only to Maloney’s conviction for bribe taking in other cases, but also to additional evidence, discussed above, that lends support to his claim that Maloney was actually biased in petitioner’s own case.” Id. at 909, 117 S.Ct. 1793." }, { "docid": "22844765", "title": "", "text": "asylum seeker, or another person, during “any investigation, examination, hearing, or trial.” Here, the evidence was not of such a “statement”; rather, the evidence in question was the IJ’s own notes, not part of the record, taken by the IJ during Joseph’s unrecorded, uncounseled bond hearing. No transcript exists for Joseph’s bond hearing. No effort was made to introduce specific evidence of the precise content of Joseph’s oral statements made at his unrecorded bond hearing. Because 8 C.F.R. § 1240.7(a) does not apply, we need not reconcile this regulation with 8 C.F.R. § 1003.19(d) or determine which regulation, if any, would govern in the event of a conflict. Moreover, as we discuss below, § 1003.19(d) does not, as a rule, permit an IJ sitting in removal proceedings to rely on her notes from a bond hearing. 2. Bond and Removal Hearings are Distinct and Evidence from a Bond Hearing Should Not be Considered in a Removal Hearing The case law, although sparse, supports Joseph’s argument that § 1003.19(d) precludes the IJ from considering evidence from a bond hearing, in this case the IJ’s notes, in determining a petitioner’s credibility at a removal hearing. The BIA has noted that “bond and removal are distinctly separate proceedings.” In re R-S-H-, 23 I. & N. Dec. 629, 630 n. 7 (B.I.A.2003) (citing 8 C.F.R. § 1003.19(d)); see also Bobb v. Attorney Gen. of U.S., 458 F.3d 213, 216 (3d Cir.2006) (noting an IJ’s decision, affirmed by the BIA, that a determination at the bond hearing that an alien’s conviction was not an aggravated felony was not controlling in the removal hearing); Pina v. Horgan, No. 07-11036, 2007 WL 4200838, **1-2, 2007 U.S. Dist. LEXIS 86912, at *3-4 (D.Mass. Nov. 27, 2007) (noting that bond and removal hearings are separate). Although the Ninth Circuit has not interpreted 8 C.F.R. § 1003.19(d), the Seventh Circuit discussed 8 C.F.R. § 1003.19(d) in Flores-Leon v. INS, 272 F.3d 433 (7th Cir.2001). In that case, the petitioner, Flores-Leon, asserted a denial of his due process rights because the IJ presided over both the bond hearing and the removal" }, { "docid": "4275229", "title": "", "text": "says, “[t]he Superior Court’s findings and conclusions rest on a flawed foundation. It lacked the benefit of an evidentiary hearing during which it could have developed the record regarding any discussions or advice which occurred off the record.” Buckley, 266 F.Supp.2d at 1141. He continued, “to the extent that the state court’s ruling is properly characterized as a factual finding, it is an incorrect and unreasonable one, and petitioner has met his burden of demonstrating by clear and convincing evidence that it is erroneous.” Id. (citation omitted). In Mendiola v. Schomig, 224 F.3d 589, 592-93 (7th Cir.2000), the Seventh Circuit noted the differences between pre-AEDPA § 2254(d) and the current § 2254(e)(1). Id. The latter “does not require findings to be based on evidentiary hearings.” Id. Under this rationale, the magistrate in this case erred by determining that because the California Superior Court’s finding was not based on a separate evidentiary hearing it is not entitled to deference under the AEDPA. As the Mendiola court noted, “[i]f a state court’s findings rest on thin air, the petitioner will have little difficulty satisfying the standards for relief under § 2254. But if the state court’s finding is supported by the record, even though not by a ‘hearing on the merits of the factual issue’, then it is presumed to be correct.” Id. (quoting 28 U.S.C. § 2254(d) (1994) (pre-AEDPA)). We agree with our sister circuit: we do not read either the AEDPA or Maddox as mandating an in-court evi-dentiary hearing under all circumstances. The question is whether the factfinding process was fatally defective. Moreover, petitioner challenged the state court’s finding in his federal habeas petition on the basis that it was simply wrong, not on the basis that the factfinding process was intrinsically flawed. We note here that all the “new” evidence petitioner brought to the district court’s attention was not evidence that was unknown or unavailable to the petitioner in state court — to the contrary. In this respect, his federal presentation to the district court runs afoul of the requirement that before he can obtain federal habeas relief, he" }, { "docid": "15908351", "title": "", "text": "was that he had seen the individual at whom the comment was allegedly directed walk by. When the comment was repeated in Olsen’s presence during the staff meeting, there is no allegation that Olsen was aware of the original context. Olsen herself also allegedly commented that Plaintiff had “two black employees” standing around. Plaintiff points to Straughn v. Delta Air Lines, Inc., 250 F.3d 23 (1st Cir.2001), in which the Court of Appeals noted that “mere generalized ‘stray remarks’ arguably probative of bias against a protected class, normally are not probative of pretext absent some discernible evidentiary basis for assessing their temporal and contextual relevance.” See id. at 36. Plaintiff, however, ignores the First Circuit’s next comment: “even if we were to assume that the assertedly offensive workplace [remark] is somehow suggestive of racial bias, it would not be significantly probative of pretext absent some discernible indication that its communicative content, if any, materially erodes the stated rationale for the challenged employment action.” Id. (footnote omitted). Olsen’s single comment, even assuming it could fairly be construed as reflecting bias, does little to diminish Defendant’s well-substantiated rationale for terminating Plaintiff based on his sales performance. Plaintiffs also alleges that the Barbie incident demonstrated Olsen’s bias. Plaintiffs argument on this point is somewhat confusing. He does not appear to contend that the decision not to use an African-American model was itself biased. Both Plaintiff and Olsen testified that the basis for the decision was the customer population of the Holyoke store. Instead, Plaintiff notes that cognitive biases may skew perception and judgments or lead to unconscious stereotyping. He then argues that there was a nexus between his complaints to Olsen and her determination that Plaintiff failed to meet Core Standards. Plaintiff fails to explain clearly how his complaints affected Olsen’s evaluations; Olsen first evaluated him and found Core Standards lacking before the Barbie incident. d. The Pretext Evidence Viewed as a Whole. In analyzing pretext, “the court must look at the total package of proof offered by the plaintiff.” Benoit, 331 F.3d at 174. In this case, the totality of Plaintiffs evidence" }, { "docid": "15253487", "title": "", "text": "Id. at 278, 125 S.Ct. 1528. Carter argues that not only has he met these standards, but Rhines permits stays for a petitioner to “exhaust evidence” — in other words, to return to state court to submit additional evidence to buttress claims already exhausted, as the prior panel ruled Claims 28 and 29 were. (Pet.’s Br. at 29.) For the most part, the mitigating evidence Carter deems most relevant is contained in the Wantuck reports, which were prepared in 1992 in anticipation of the sentencing phase of the trial, but were never actually made part of any state court record. Thus, whether or not this evidence might constitute a “mountain,” it is certainly not new. Carter seeks to use Rhines as an end-run around Pinholster, with the added benefit that a return to state court might delay his impending death sentence for a substantial period. In addition to arguing that he had no reason to return to state court prior to Pinholster, he principally relies on Gonzalez v. Wong, 667 F.3d 965 (9th Cir. 2011), a post -Pinholster case concerning a potential Brady violation that was only discovered during the course of federal habeas proceedings. The dissent in Pinholster had posited that potential exculpatory evidence discovered in federal habeas proceedings could constitute a new claim outside the bar to new evidence announced by the majority, and the majority left open the possibility that this could constitute a new claim. 563 U.S. at 186 n.10, 131 S.Ct. 1388. Gonzalez took up this possibility — and took advantage of the lack of clarity as to what constituted new claims — and ordered the district court to stay the petitioner’s Brady claim while he presented the withheld evidence to state courts. 667 F.3d at 980. Gonzalez not only does not apply in this Circuit but\" is altogether distinguishable; whereas in that case, the exculpatory evidence was in the prosecutor’s possession, Carter simply neglected to submit relevant documents to the jury or attach much additional information to his post-conviction petition. Carter’s brief goes on at length about how trial counsel could have made better" }, { "docid": "20665201", "title": "", "text": "in the record suggests that the state court gave unreasonable weight to the evidence that contradicted Ray. As a result, it is undebatable that the state court’s factual determination that Ray was not offered a plea agreement was not an unreasonable determination, so the COA is denied. Young’s request for a COA regarding plea deals allegedly offered to Page suffers the same defect as his request for a COA regarding Ray. Both Page’s attorney and the district attorneys have said consistently throughout these proceedings that Page was offered a conditional plea, predicated on passing a polygraph, and that when he failed that polygraph the plea negotiations ended. Consequently, we find that it is not debatable that the district court properly denied Young’s habeas petition with regard to Page’s alleged plea bargain. Thus no COA is warranted. Further, even if Young’s allegations of Brady violations were correct, we agree with the district court’s conclusion that these nondisclosures were immaterial in light of the evidence presented at trial. [Tjhere is not even a remote possibility, much less a reasonable probability [that] the outcome of either phase of petitioner’s capital murder trial could have been any different had the prosecution disclosed to petitioner’s counsel prior to trial either (1) [a DA] made a comment shortly after Ray’s arrest that he ‘probably would make [Ray] an offer he couldn’t refuse’ or (2) [a DA] discussed with Page’s attorney ... the possibility of Page receiving a thirty-year sentence prior to the time Page flunked the polygraph examination. Young, 2014 WL 2628941, at *8. Not only was the evidence against Young overwhelming, but the biases and motivations of the eyewitnesses were also evident at trial. Young’s alleged new evidence may create an issue of the degree of that bias or motive to fabricate, but it does not create a new argument. Faced with the other evidence adduced at trial, it is unde-batable that no reasonable jurist could conclude that the outcome of the trial could have been any different. II. Ineffective Assistance of Counsel Young alleges that his counsel was ineffective because he did not: (1)" }, { "docid": "22663923", "title": "", "text": "Kaufman v. United States, 394 U. S. 217, 242 (dissenting opinion). But until the Court adopts that view, I regard myself as obligated to consider the merits of the Fourth and Fourteenth Amendment claims in a case of this kind. Upon that premise I join the opinion and judgment of the Court. Mr. Justice Harlan, concurring in part and dissenting in part. I find myself in disagreement with the Court’s disposition of this case in two respects. I I cannot join the Court’s casual treatment of the issue that has been presented by both parties as the major issue in this case: petitioner’s claim that he received ineffective assistance of counsel at his trial. As the Court acknowledges, petitioner met Mr. Tamburo, his trial counsel, for the first time en route to the courtroom on the morning of trial. Although a different Legal Aid Society attorney had represented petitioner at his first trial, apparently neither he nor anyone else from the society had conferred with petitioner in the interval between trials. Because the District Court did not hold an evidentiary hearing on the habeas petition, there is no indication in the record of the extent to which Mr. Tamburo may have consulted petitioner’s previous attorney, the attorneys for the other defendants, or the files of the Legal Aid Society. What the record does disclose on this claim is essentially a combination of two factors: the entry of counsel into the case immediately before trial, and his handling of the issues that arose during the trial. As respondent must concede, counsel’s last-minute entry into the case precluded his compliance with the state rule requiring that motions to suppress evidence be made before trial, even assuming that he had sufficient acquaintance with the case to know what arguments were worth making. Furthermore, the record suggests that he may have had virtually no such acquaintance. In the first place, he made no objection to the admission in evidence of the objects found during the search of the car at the station house after the arrest of its occupants, although that search was of" } ]

[ { "docid": "2879587", "title": "", "text": "the “transactions can be tied together.” Thus, the clear intent and import of the Missouri law as written on this subject and as implemented by the appropriate organs of state government is to require registration, in instances like that at bar, by both owner and operator and in both of their names. Accordingly, the provision on “dual registration” from the regulation of the Internal Revenue Service cited above, § 41.4481-3, applies in this case; and the subject vehicles, for the purpose of the highway use tax, must be considered to be registered solely in the name of the owner-lessor of the vehicles. Further, in view of the evidence in this case which shows that, in those instances where the owner-lessors lived within this district or their addresses were otherwise known, they were assessed by defendant for the highway tax, the provision of subsection (d) of Section 4481, supra, applies to those vehicles with respect to which the tax imposed has already been paid by the owner-lessor. And the assessment by the defendant of those persons is further evidence of the application of the dual registration requirement in Missouri with respect to the other vehicles here in question. It was precisely for the purpose of eliminating dual assessments, and to insure that no duplication in collection was made, that subsection (b) of regulation § 41.4481-3 provided that, in such cases, only the owner should be assessed. It is the position of the Government, however, that the “certificate of title issued to the lessor does not constitute registration of the vehicle,” but is rather a “condition precedent to the registration or licensing of a vehicle.” It is true that, under the provisions of § 301.-190 RSMo, a certificate of title must be exhibited in order to obtain a certificate of registration. As was stated in the case of In re Jackson (E.D.Mo.) 268 F. Supp. 434, 438: “ * * * at least two separate applications are expressly provided for, each for a different purpose. The primary purposes of registration are the identification of the vehicle and the production of revenue by" } ]

[ { "docid": "20569991", "title": "", "text": "is no statutory definition of the term “registered” but the Treasury Regulations contain this definition: Section 41.4481-3 Registration. (a) For purposes of the regulations in this part, the term “registered” when used with reference to a highway motor vehicle means: 1) Registered under the law of any State or Territory of the United States or of the District of Columbia, or 2) Required to be registered under the law of any State or Territory of the United States in which such highway motor vehicle is operated or situated or in case the vehicle is operated or situated in the District of Columbia, under the law of the District of Columbia. ****** (b) Any highway motor vehicle which, at any time in the taxable period, is registered both in the name of the owner of the vehicle and in the name of any other person, is considered, for purposes of the regulations in this part, to be registered, at such time, solely in the name of the owner of the vehicle. 26 C.F.R. § 41.4481-3. Upon stipulation of the parties the suit has been submitted to the Court without formal trial, and the Court’s findings of fact and conclusions of law are based upon the exhibits, briefs and oral argument offered by the parties. It has been stipulated that the trucks in issue were base-plate licensed in the plaintiff’s name in California. It is also stipulated that the trucks were issued permits and prorate licenses in Wisconsin in the names of both the plaintiff and the individual owners. Plaintiff asserts that a joint registration sufficient to cause tax liability to arise was accomplished by the plaintiff as operator-lessee and by the owner-lessors under Wisconsin law. Therefore, the plaintiff argues, by the dual registration regulation, Section 41.4481-3 (b), the owner-lessors and not the plaintiff are liable for the tax. The government asserts that the plaintiff has accomplished an adequate registration under the California law only, not under Wisconsin law, and since the vehicles are registered only in plaintiff’s name in California, plaintiff is liable for payment of the tax. In the alternative," }, { "docid": "8777230", "title": "", "text": "reason why Alabama, pursuant to its dual sovereignty, cannot, consistent with the purpose of Congress, make violations of 8 U.S.C. §§ 1304(e) and 1306(a) by unlawfully present aliens, state crimes in Alabama. The United States contends, though not in certain terms, that the court should follow the recent decision in United States v. Arizona. (Doc. 2 at 29, 31 [citing United States v. Arizona, 641 F.3d 339, 354-57 (9th Cir.2011) ].) In that case, the United States had challenged the constitutionality of Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act in the United States District Court for the District of Arizona and moved to enjoin the Act. See Arizona, 703 F.Supp.2d 980. Section 3 of the Arizona Act, A.R.S. § 13-1509(A), which is substantially similar to H.B. 56 § 10(a), was among the challenged provisions. Id. at 998-99. Section 3 of the Arizona Act provides: “In addition to any violation of federal law, a person is guilty of willful failure to complete or carry an alien registration document if the per son is in violation of 8 United States Code section 1304(e) or 1306(a).” Id. at 998. This section of the Arizona Act did not, as H.B. 56 § 10 does, apply only to those “unlawfully present.” The district court preliminarily enjoined Section 3, reasoning that: Section 3 attempts to supplement or complement the uniform, national registration scheme by making it a state crime to violate the federal alien registration requirements, which a state may not do “inconsistently with the purpose of Congress.” Hines, 312 U.S. at 66-67, 61 S.Ct. 399; see also A.R.S. § 13-1509(A). While Section 3 does not create additional registration requirements, the statute does aim to create state penalties and lead to state prosecutions for violation of the federal law. Although the alien registration requirements remain uniform, Section 3 alters the penalties established by Congress under the federal registration scheme. Section 3 stands as an obstacle to the uniform, federal registration scheme and is therefore an impermissible attempt by Arizona to regulate alien registration. See Hines, 312 U.S. at 67, 61 S.Ct. 399. Arizona, 703" }, { "docid": "21909709", "title": "", "text": "to it, is in violation of the constitutional requirement that excises be uniform throughout the United States. The argument seems to be that the tax is collected from Grain Belt because it is located in Kansas and subject to the laws of Kansas, although a carrier located in another state, for example in Missouri, where Grain Belt is incorporated, and operating under the same lease arrangements with owner-lessors, does not have to pay the tax because the laws of the other state require dual registration, thus bringing into operation the quoted regulation which would impose the tax on the title holder. This difference in treatment depending upon the varying laws of the particular states is the basis of the taxpayer’s constitutional challenge. The attack must fail. The inequality of the impact of a Federal tax in different states resulting from the lack of uniformity in state laws does not work a violation of the constitutional requirement of uniformity. See Fernandez v. Wiener, 326 U.S. 340, 66 S.Ct. 178, 90 L.Ed. 116, and cases there cited. The constitutional command is for uniformity of the tax, not for uniformity of taxpayers. By way of lagniappe the taxpayer contends that the imposition of the tax against it is a violation of the due process clause of the Fifth Amendment. Its arguments that the tax is arbitrary and unreasonable, and that it is invalid because its burden in some states falls upon the lessor and in others upon the lessee are unimpressive and without merit. Fernandez v. Wiener, supra. The judgment of the district court is Affirmed. . The taxpayer also sought abatement of the remainder of the taxes assessed against it, and denied liability for the penalties claimed by the Commissioner. Those issues do not require consideration. . See Steel Haulers, Inc. v. United States, W.D.Mo.1970, 316 F.Supp. 707, affirmed per curiam, 8th Cir. 1971, 440 F.2d 1176." }, { "docid": "20569993", "title": "", "text": "the government argues that even if plaintiff is considered registered in both states, the only type of registration envisioned by the federal tax statute was the type accomplished in California (base-plate), not the type in Wisconsin (prorate), and therefore, plaintiff is still liable for payment of the tax. There are three issues to be resolved by the Court in this case: 1) What was the nature of the compliance effected under California state law? 2) What was the nature of the compliance effected under Wisconsin state law? 3) Whether either or both of these compliances constitute registration for purposes of 26 U.S.C. § 4481, the Federal Highway Use Tax statute. There have been no reported cases dealing with interpretation of the term “registered” in 26 U.S.C. § 4481. (Controversies over the meaning of the term “owner” under Treas.Reg. Sec. 41.4481-3(b) have been reported. See Grain Belt Transportation Co. v. United States, 465 F.2d 1202 (10th Cir. 1972); Steel Haulers, Inc. v. United States, 316 F.Supp. 707 (W.D.Mo.1970), aff’d per curiam, 440 F.2d 1176 (8th Cir. 1971).) Nor does the legislative history of the statute as passed in 1956 or as amended in 1961, provide any assistance. See S. Rep.No. 1965, 84th Cong.2d Sess., 1956 U.S.Code Cong, and Admin.News at 2872; S.Rep.No. 2054, 84th Cong., 2d Sess., 1956 U.S.Code Cong, and Admin. News at 2851; H.Conf.Rep.No. 2436, 84th Cong., 2d Sess. 1956 U.S.Code Cong, and Admin.News at 2889; S. Rep.No. 293, 87th Cong., 1st Sess., 1961 U.S.Code Cong, and Admin.News at 1788; SJEtep.No. 367, 87th Cong., 1st Sess., 1961 U.S.Code Cong, and Admin. News at 1809; H.Conf.Rep.No. 564, 87th Cong., 1st Sess., 1961 U.S.Code Cong, and Admin.News at 1835. Therefore, it appears that this is a matter of first impression and that Congress has given no indication of the meaning it intended for the term “registered.” It is apparent that a great deal of significance attaches to the word “registration.” Read in the abstract, the taxing statute gives the impression that there are certain definitive criteria which establish whether in any state “registration” has been accomplished. Unfortunately, this is not so." }, { "docid": "21909703", "title": "", "text": "JONES, Circuit Judge: The Grain Belt Transportation Co., Inc., herein referred to as the taxpayer, is a Missouri corporation with its principal place of business in Kansas. It holds certificates from the Interstate Commerce Commission permitting it to carry on the business of an interstate common carrier of freight by motor vehicles in twelve states. It owns no equipment, but leases its vehicles from individual owners pursuant to leasing regulations of the Interstate Commerce Commission. The lessors, in turn, are employed as drivers of the leased vehicles. The lessors own their vehicles and have “negotiable certificates of title” to such vehicles issued by the state of Kansas. The taxpayer, as lessee for periods of over thirty days, is permitted to and does obtain from the state of Kansas, “nonnegotiable certificates of title” to such vehicles evidencing its leasehold interests. Having these nonnegotiable title certificates, the taxpayer registered the vehicles under a Kansas registration statute, K.S.A. § 8-149a, which allowed the taxpayer, operating a fleet of trucks in interstate commerce, to prorate the registration fees among the several states in which it operates, in proportion to the miles travelled in each state. There was no evidence that the owners of the vehicles registered them with the state of Kansas, although it seems that Kansas law permits dual registration by the owner and the lessee, or registration only in the names of the owner. The Internal Revenue Code, 26 U.S.C. A. § 4481, imposes excise taxes on highway motor vehicles, generally known as the Federal highway use tax. The vehicles leased by taxpayer are subject to this tax. The Commissioner of Internal Revenue assessed a deficiency against the taxpayer of $13,428.75, with interest and penalties, claiming that taxpayer was liable for the payment of the tax with respect to its leased vehicles. The taxpayer paid $325 of the asserted deficiency and then brought suit pursuant to 28 U.S.C.A. 1346(a) (1) in the United States District Court for the District of Kansas, seeking a refund of the amount paid. After a trial in the district court on stipulations and the testimony of taxpayer’s" }, { "docid": "20569995", "title": "", "text": "Each state requires compliance with its own motor vehicle registration laws by every commercial vehicle which passes through that state. However, the compliance required by each state is not uniform. There are different types and amounts of licensing, fee payments and taxation throughout the various states. Because many vehicles pass through a large number of states, arrangements have been reached by the states whereby some vehicles are not required to follow the full procedure for every state through which they pass. By these arrangements the states recognize the differences in terminology, fees, and procedures which exist among them, and member states agree to relax their own requirements for out-of-state vehicles in return for substantially similar treatment of their own vehicles by other member states. These arrangements may be on a multi-state or on a state-by-state basis. A number of such agreements have been introduced as exhibits. California is a member of the Uniform Vehicle Registration Proration and Reciprocity Agreement (U.V.R.P. & R.A.), a multistate compact. Wisconsin is not a member of any such compact but enters into agreements on an individual basis with other states. Unfortunately these exhibits use the general terms “registration” or occasionally “licensing” to cover the specific requirements of individual states. With one exception, all of the agreements operate on the principle that if a vehicle has accomplished an adequate compliance with the statutes of a member state no additional compliance with the corresponding statutes of the other member states is necessary. This type of agreement is generally referred to as reciprocity. The exception mentioned above is found in the U.V.R.P. & R.A., which contains a system called proration. Under proration an owner may register a fleet of vehicles in any member state by paying to that state a percentage of the normal fees for the vehicles based on the number of in-state miles driven as compared to total miles driven. The fleet must designate a base state, the only purpose for which is that each fleet vehicle is then issued the license plates and registration card of the base state. The U.V.R.P. & R.A. also has" }, { "docid": "21909708", "title": "", "text": "statute also has a definition of owner which includes a lessee for 30 days or more, and provides that an owner with an interstate fleet “may, in lieu of registration of such vehicles under the general provisions of sections 8-126 to 8-149 . . . register and license such fleet for operation in this state . . . the vehicles so registered shall be exempt from all further registration and license fees under said sections 8-126 to 8-149 . ...” K.S.A. § 8-149a(b). It is shown that the taxpayer registered the vehicles. It is not shown that the lessors registered the vehicles. The registration was made pursuant to the Kansas law covering truck fleets in interstate commerce. The tax is imposed on the registered owner which, under the Kansas law, may be and in this case is a lessee. We do not find error in the decision of the district court in fixing the liability for the highway use tax on the taxpayer. The taxpayer makes the contention that the highway use tax, as applied to it, is in violation of the constitutional requirement that excises be uniform throughout the United States. The argument seems to be that the tax is collected from Grain Belt because it is located in Kansas and subject to the laws of Kansas, although a carrier located in another state, for example in Missouri, where Grain Belt is incorporated, and operating under the same lease arrangements with owner-lessors, does not have to pay the tax because the laws of the other state require dual registration, thus bringing into operation the quoted regulation which would impose the tax on the title holder. This difference in treatment depending upon the varying laws of the particular states is the basis of the taxpayer’s constitutional challenge. The attack must fail. The inequality of the impact of a Federal tax in different states resulting from the lack of uniformity in state laws does not work a violation of the constitutional requirement of uniformity. See Fernandez v. Wiener, 326 U.S. 340, 66 S.Ct. 178, 90 L.Ed. 116, and cases there cited." }, { "docid": "20569997", "title": "", "text": "a system of reciprocity as discussed above for vehicles which do not qualify for proration. For purposes of reciprocity under this compact, the initial state in which full compliance with state laws is made (or as the agreement says, the state in which the vehicle is “properly registered”) is termed the base state. I. PLAINTIFF’S COMPLIANCE WITH CALIFORNIA LAW It is stipulated that the vehicles were base-plate licensed in California in the plaintiff’s name only. This term, however, is not defined or referred to in the California statutes. West’s Annotated California Vehicle Code, Section 4000, requires that all motor vehicles operated on California highways be “registered.” With respect to commercial vehicles, the state Reciprocity Commission is autho rized by statute to enter into agreements with other states for reciprocal and proportionate registration. In addition, Section 8151 permits proportionate registration of fleet vehicles without regard to registration in other states. The record does not disclose whether plaintiff’s compliance with California law is under Section 8151, or is a form of reciprocity under the U.Y.R.P. & R.A., or is a form of proration under the U. V.R.P. & R.A. But it is unnecessary to decide this point because it is clear that under any of these methods, plaintiff has chosen California to be the state for which it has made full initial compliance with state “registration” laws and it is this state which plaintiff uses as a reference point for the privilege of avoiding full compliance with the registration laws of other states through which plaintiff’s vehicles pass. II. THE PLAINTIFF’S COMPLIANCE WITH WISCONSIN LAW It is stipulated that all of the vehicles in question were issued permits and prorate licenses in Wisconsin in the name of both the plaintiff and owner-lessors. Wisconsin requires all motor vehicles to be registered unless they are exempt from registration, West’s Wisconsin Statutes Annotated, Section 341.04. Section 341.05 lists exempted vehicles, and Section 341.05(2) states that a vehicle is exempt when it: Is operated in accordance with the provisions exempting nonresident or foreign-registered vehicles from registration ; Section 341.41 authorizes reciprocity agreements: (1) The administrator with" }, { "docid": "20570004", "title": "", "text": "in Steel Haulers implicitly agreed that the law of the base-state controls, and that this is some authority for this Court to reach a similar decision. In Steel Haulers, however, it is clear that the district court was not called upon to decide whether registration had been made in the base-state or in some other state. The issue was simply interpretation of a state statute defining the term “owner.” The plaintiff argues that because the Steel Haulers court found registration in the owner-lessor and the operator-lessee’s names and then applied the dual registration regulation, that case is some authority for this Court in reaching a similar result. We do not agree. In Steel Haulers, the court found that the dual registration had occurred in one state. There waS no claim of equal “registrations” in different states, as there is in this case. The plaintiff also points to language in Steel Haulers in which the Court stated that the fact that the Internal Revenue Service had assessed some of the owner-lessors who could be found, was some evidence that the dual registration regulation was applicable, 316 F.Supp. at 713. As mentioned before, the plaintiff states that such is the situation in this case, although the government has avoided admitting who paid the tax on the other vehicles originally assessed against plaintiff. But again, this discussion in Steel Haulers was in the context of determining whether there was a dual registration under the laws of one state, not multiple states. The government also argues that if it is found that the plaintiff’s compliance with California law and the plaintiff/owner-lessors’ compliance with Wisconsin law are both regarded as sufficient to constitute registration under 26 U.S.C. § 4481, then both plaintiff and the owner-lessors are liable for the payment of the tax, and that under Treas. Reg. Sec. 41.4481-2(a) (1) the tax may be recovered from either. But the full text of this regulation and the examples following it indicate that it is intended to apply to successive ownerships of the same vehicle during a single taxable period, and has no application to the" }, { "docid": "20570002", "title": "", "text": "the inference is that the California-Wisconsin agreement was the basis for plaintiff’s prorate application in Wisconsin. The Wisconsin statutes, the deposition of Mr. Jensen, and the California-Wisconsin agreement indicate that plaintiff’s registration status in Wisconsin is essentially what was referred to earlier as reciprocity (although some of the fees may have been paid on a proportionate basis). That is, because plaintiff has accomplished a full registration in another state, it is permitted to avoid full compliance with all Wisconsin registration statutes. Plaintiff had, of course, fully complied with all Wisconsin registration requirements applicable to it, and had in that sense of the term, become “registered” in Wisconsin. But because of the special treatment permitted vehicles registered in other states, not all the Wisconsin registration requirements were applicable to plaintiff, and in that sense of the term, plaintiff was not fully “registered” in Wisconsin. III. “REGISTRATION” FOR PURPOSES OF THE FEDERAL HIGHWAY USE TAX Given these two forms of registration by plaintiff in different states, the Court is called upon to decide whether either or both constitute “registration” within the meaning of 26 U.S.C. § 4481. Both parties assert that the case of Steel Haulers, Inc. v. United States, 316 F.Supp. 707 (W.D.Mo.1970), aff’d per curiam, 440 F.2d 1176 (8th Cir. 1971), is relevant and supports their respective positions. In Steel Haulers, the principal issue was whether both a lessee-oper ator and the lessor-owner of a motor vehicle met the Missouri statutory definition of “owner” and therefore, whether both were required under Missouri law to register the vehicle. The district court held that both were “owners” under the state statute and that, therefore, the dual registration provision of Treas. Reg.Sec. 41.4481-3 applied, making only the lessor-owner liable for the tax. The court of appeals affirmed in a per curiam, opinion (Judge Bright dissenting). Missouri is a member of a multi-state compact which appears to be identical to the U.V.R.P. & R.A. discussed earlier, and of which California is also a member. Missouri was the base state for the vehicles at issue in Steel Haulers. The government argues that the District Court" }, { "docid": "20570003", "title": "", "text": "constitute “registration” within the meaning of 26 U.S.C. § 4481. Both parties assert that the case of Steel Haulers, Inc. v. United States, 316 F.Supp. 707 (W.D.Mo.1970), aff’d per curiam, 440 F.2d 1176 (8th Cir. 1971), is relevant and supports their respective positions. In Steel Haulers, the principal issue was whether both a lessee-oper ator and the lessor-owner of a motor vehicle met the Missouri statutory definition of “owner” and therefore, whether both were required under Missouri law to register the vehicle. The district court held that both were “owners” under the state statute and that, therefore, the dual registration provision of Treas. Reg.Sec. 41.4481-3 applied, making only the lessor-owner liable for the tax. The court of appeals affirmed in a per curiam, opinion (Judge Bright dissenting). Missouri is a member of a multi-state compact which appears to be identical to the U.V.R.P. & R.A. discussed earlier, and of which California is also a member. Missouri was the base state for the vehicles at issue in Steel Haulers. The government argues that the District Court in Steel Haulers implicitly agreed that the law of the base-state controls, and that this is some authority for this Court to reach a similar decision. In Steel Haulers, however, it is clear that the district court was not called upon to decide whether registration had been made in the base-state or in some other state. The issue was simply interpretation of a state statute defining the term “owner.” The plaintiff argues that because the Steel Haulers court found registration in the owner-lessor and the operator-lessee’s names and then applied the dual registration regulation, that case is some authority for this Court in reaching a similar result. We do not agree. In Steel Haulers, the court found that the dual registration had occurred in one state. There waS no claim of equal “registrations” in different states, as there is in this case. The plaintiff also points to language in Steel Haulers in which the Court stated that the fact that the Internal Revenue Service had assessed some of the owner-lessors who could be found, was" }, { "docid": "20569994", "title": "", "text": "1971).) Nor does the legislative history of the statute as passed in 1956 or as amended in 1961, provide any assistance. See S. Rep.No. 1965, 84th Cong.2d Sess., 1956 U.S.Code Cong, and Admin.News at 2872; S.Rep.No. 2054, 84th Cong., 2d Sess., 1956 U.S.Code Cong, and Admin. News at 2851; H.Conf.Rep.No. 2436, 84th Cong., 2d Sess. 1956 U.S.Code Cong, and Admin.News at 2889; S. Rep.No. 293, 87th Cong., 1st Sess., 1961 U.S.Code Cong, and Admin.News at 1788; SJEtep.No. 367, 87th Cong., 1st Sess., 1961 U.S.Code Cong, and Admin. News at 1809; H.Conf.Rep.No. 564, 87th Cong., 1st Sess., 1961 U.S.Code Cong, and Admin.News at 1835. Therefore, it appears that this is a matter of first impression and that Congress has given no indication of the meaning it intended for the term “registered.” It is apparent that a great deal of significance attaches to the word “registration.” Read in the abstract, the taxing statute gives the impression that there are certain definitive criteria which establish whether in any state “registration” has been accomplished. Unfortunately, this is not so. Each state requires compliance with its own motor vehicle registration laws by every commercial vehicle which passes through that state. However, the compliance required by each state is not uniform. There are different types and amounts of licensing, fee payments and taxation throughout the various states. Because many vehicles pass through a large number of states, arrangements have been reached by the states whereby some vehicles are not required to follow the full procedure for every state through which they pass. By these arrangements the states recognize the differences in terminology, fees, and procedures which exist among them, and member states agree to relax their own requirements for out-of-state vehicles in return for substantially similar treatment of their own vehicles by other member states. These arrangements may be on a multi-state or on a state-by-state basis. A number of such agreements have been introduced as exhibits. California is a member of the Uniform Vehicle Registration Proration and Reciprocity Agreement (U.V.R.P. & R.A.), a multistate compact. Wisconsin is not a member of any such compact but" }, { "docid": "2879586", "title": "", "text": "vehicle for the purposes of this article.” It is apparent from the foregoing that the statutory scheme set up by the State of Missouri in respect of the vehicles concerned in the case at bar requires registration in the name of the owner-lessor as well as of the operator-lessee of the vehicles. Both persons meet the statutory definition of “owner” as defined in Section 301.010, and both are included in the category of those required to pay registration fees by the statute enabling the making of reciprocity agreements, Section 301.277. Further, the form of the lease required by the Missouri Public Service Commission provides that the lessor is to pay all taxes “of any nature whatsoever” on the vehicle while it is being used by the lessee. And, as the Assistant Supervisor of the Motor Vehicle Registration Department testified in the trial of this cause, the owner’s certificate of title is required to be produced by the lessee as a condition precedent to registration and the certificate is filed together with the registration so that the “transactions can be tied together.” Thus, the clear intent and import of the Missouri law as written on this subject and as implemented by the appropriate organs of state government is to require registration, in instances like that at bar, by both owner and operator and in both of their names. Accordingly, the provision on “dual registration” from the regulation of the Internal Revenue Service cited above, § 41.4481-3, applies in this case; and the subject vehicles, for the purpose of the highway use tax, must be considered to be registered solely in the name of the owner-lessor of the vehicles. Further, in view of the evidence in this case which shows that, in those instances where the owner-lessors lived within this district or their addresses were otherwise known, they were assessed by defendant for the highway tax, the provision of subsection (d) of Section 4481, supra, applies to those vehicles with respect to which the tax imposed has already been paid by the owner-lessor. And the assessment by the defendant of those persons" }, { "docid": "20569996", "title": "", "text": "enters into agreements on an individual basis with other states. Unfortunately these exhibits use the general terms “registration” or occasionally “licensing” to cover the specific requirements of individual states. With one exception, all of the agreements operate on the principle that if a vehicle has accomplished an adequate compliance with the statutes of a member state no additional compliance with the corresponding statutes of the other member states is necessary. This type of agreement is generally referred to as reciprocity. The exception mentioned above is found in the U.V.R.P. & R.A., which contains a system called proration. Under proration an owner may register a fleet of vehicles in any member state by paying to that state a percentage of the normal fees for the vehicles based on the number of in-state miles driven as compared to total miles driven. The fleet must designate a base state, the only purpose for which is that each fleet vehicle is then issued the license plates and registration card of the base state. The U.V.R.P. & R.A. also has a system of reciprocity as discussed above for vehicles which do not qualify for proration. For purposes of reciprocity under this compact, the initial state in which full compliance with state laws is made (or as the agreement says, the state in which the vehicle is “properly registered”) is termed the base state. I. PLAINTIFF’S COMPLIANCE WITH CALIFORNIA LAW It is stipulated that the vehicles were base-plate licensed in California in the plaintiff’s name only. This term, however, is not defined or referred to in the California statutes. West’s Annotated California Vehicle Code, Section 4000, requires that all motor vehicles operated on California highways be “registered.” With respect to commercial vehicles, the state Reciprocity Commission is autho rized by statute to enter into agreements with other states for reciprocal and proportionate registration. In addition, Section 8151 permits proportionate registration of fleet vehicles without regard to registration in other states. The record does not disclose whether plaintiff’s compliance with California law is under Section 8151, or is a form of reciprocity under the U.Y.R.P. & R.A.," }, { "docid": "2879590", "title": "", "text": "registration fees. Further, the lease itself, in requiring that the owner-lessor pay all taxes assessed is further evidence that the owner-lessor is intended to be a registrant within the meaning of Section 4481 of Title 26, U. S.C., and thus the sole registrant within the meaning of the applicable regulation, § 41.4481-3 (b). The Government, however, contends that the Reciprocity Agreement is controlling and that it provides that the operator of a fleet such as the one including the vehicles taxed in this case is to be deemed the sole owner for registration purposes. In support of this point, the Government cites Ruan Transport Corporation v. Missouri Highway Reciprocity Commission, Mo., 369 S.W. 2d 220. But in that case, it was only determined that subsection (3) of Section 301.277, prohibiting reciprocity agreements with respect to vehicles solely operated in Missouri intrastate commerce, did not apply to vehicles based in Missouri but operated in both intrastate and interstate commerce. Otherwise, the principle that § 301.277, as it purports to do, sets the limits for the contracting by the Reciprocity Commission remains undisturbed. Therefore, the Reciprocity Agreement must be construed so that it is consistent with the enabling statute under which it was made. The agreement itself provides that it is made “[pursuant to and in conformity with the laws of [the] respective States” and that “[t]his agreement shall not authorize the operation of a vehicle in any contracting state contrary to the laws or regulations thereof, except those pertaining to registration and payment of fees; and with respect to such laws or regulations, only to the extent provided in this agreement.” Therefore, in the light of the required consistency with the enabling statute, Section 301.277, the provisions of the Reciprocity Agreement that “any owner may” register a vehicle and that an operator of an interstate fleet must be deemed to be “the owner” must be read together to be consistent with the Missouri statutory scheme requiring dual registration in the name of both the owner-lessor and the operator-lessee. In such an instance, by virtue of the abovestated federal regulation, the highway" }, { "docid": "2879591", "title": "", "text": "by the Reciprocity Commission remains undisturbed. Therefore, the Reciprocity Agreement must be construed so that it is consistent with the enabling statute under which it was made. The agreement itself provides that it is made “[pursuant to and in conformity with the laws of [the] respective States” and that “[t]his agreement shall not authorize the operation of a vehicle in any contracting state contrary to the laws or regulations thereof, except those pertaining to registration and payment of fees; and with respect to such laws or regulations, only to the extent provided in this agreement.” Therefore, in the light of the required consistency with the enabling statute, Section 301.277, the provisions of the Reciprocity Agreement that “any owner may” register a vehicle and that an operator of an interstate fleet must be deemed to be “the owner” must be read together to be consistent with the Missouri statutory scheme requiring dual registration in the name of both the owner-lessor and the operator-lessee. In such an instance, by virtue of the abovestated federal regulation, the highway use tax falls exclusively upon the owner-lessor. It must therefore be concluded that, under the applicable law and regulations, the assessments for the years in question in this case were wrongly and illegally made against the plaintiff and that the plaintiff is entitled to recover the amounts wrongly assessed and paid by plaintiff on December 31, 1964. It is therefore Adjudged that plaintiff have and recover from the defendant herein the sum of $16,360.93 plus interest at 6% per annum from December 31, 1964, and its costs herein expended. . “Vehicle Registration Proration and Reciprocity Agreement between the State of Missouri and the States of Arizona, British Columbia, California, Colorado, Idaho, Illinois, Iowa, Kansas, Montana, Nebraska, Nevada, New Mexico, North Dakota, Oregon, South Dakota and Washington.” See p. 712, infra. . In the record, the assessment appears in the following form: Additional Period Tax Delinquent Tax Sect. 6651(a) Delinquency Penalty 7/1/60 to 6/30/61 $1,500.00 7/1/61 to 6/30/62 4.260.00 1,065.00 7/1/62 to 6/30/63 3,300.00 7/1/60 to 6/30/61 1.095.00 None 7/1/61 to 6/30/62 840.00 None 7/1/62 to" }, { "docid": "21909706", "title": "", "text": "this part, the term “registered” when used with reference to a highway motor vehicle means: (1) registered under the law of any state or territory of the United States or of the District of Columbia, or (2) required to be registered under the law of any state or territory of the United States in which such highway motor vehicle is operated or situated or, in ease the vehicle is operated or situated in the District of Columbia, under the law of the District of Columbia. (b) Any highway motor vehicle which, at any time in the taxable period, is registered both in the name of the owner of the vehicle and in the name of any other person, is considered, for purposes of the regulations in this part, to be registered, at such time, solely in the name of the owner of the vehicle. 26 C.F.R. § 41.4481-3. The taxpayer contends that the trucks were registered under the laws of Kansas in the names of the owner-lessors and in the name of the taxpayer, thus bringing the case within the quoted regulation pertaining to dual registration, with the result that the owner-lessors would be liable for the highway use tax rather than the taxpayer. But, as has been said, it does not appear that the trucks were actually registered in the names of the owner-lessors. The two types of title certificates evidence the separate ownership and lessee interests but the issuance of them does not effect registration. In the alternative, the taxpayer submits that the trucks were “required to be registered” by the owner-lessors under Kansas law, and that such requirement would make applicable the regulation pertaining to dual registration. Kansas Statute § 8-127, K.S.A., requires “every owner” to obtain registration before a vehicle may be operated in the state, and § 8-126(n) defines owner as the person who holds legal title or a lessee for more than 30 days. The vehicles in this case were registered by the taxpayer pursuant to § 8-149a, K.S.A., relating to “proportional registration of fleet vehicles engaged in interstate commerce . . ..” This" }, { "docid": "20570005", "title": "", "text": "some evidence that the dual registration regulation was applicable, 316 F.Supp. at 713. As mentioned before, the plaintiff states that such is the situation in this case, although the government has avoided admitting who paid the tax on the other vehicles originally assessed against plaintiff. But again, this discussion in Steel Haulers was in the context of determining whether there was a dual registration under the laws of one state, not multiple states. The government also argues that if it is found that the plaintiff’s compliance with California law and the plaintiff/owner-lessors’ compliance with Wisconsin law are both regarded as sufficient to constitute registration under 26 U.S.C. § 4481, then both plaintiff and the owner-lessors are liable for the payment of the tax, and that under Treas. Reg. Sec. 41.4481-2(a) (1) the tax may be recovered from either. But the full text of this regulation and the examples following it indicate that it is intended to apply to successive ownerships of the same vehicle during a single taxable period, and has no application to the case before the Court now. Considering all of these arguments, the exhibits introduced, excellent briefs submitted by counsel, and the very few authorities available for reference, the Court is of the opinion that plaintiff’s California compliance with state law constitutes “registration” under 26 U.S. C. § 4481, and plaintiff’s Wisconsin compliance with state law does not. Although the terminology and procedures vary, the available documents, statutes, and agreements all seem to regard each vehicle as having one state with which it is primarily identified for purposes of complying with the registration laws of many states. (It is not always true that there is full initial registration in this one state alone, i. e., the system of proportionate registration under the U.Y. R.P. & R.A.; but even under this sys tem a base state must be designated, if only for purposes of identification.) The Court finds that California was the state with which the plaintiff’s vehicles had become attached (for identification at the very least) for purposes of complying with the California registration statutes. It is" }, { "docid": "20569992", "title": "", "text": "stipulation of the parties the suit has been submitted to the Court without formal trial, and the Court’s findings of fact and conclusions of law are based upon the exhibits, briefs and oral argument offered by the parties. It has been stipulated that the trucks in issue were base-plate licensed in the plaintiff’s name in California. It is also stipulated that the trucks were issued permits and prorate licenses in Wisconsin in the names of both the plaintiff and the individual owners. Plaintiff asserts that a joint registration sufficient to cause tax liability to arise was accomplished by the plaintiff as operator-lessee and by the owner-lessors under Wisconsin law. Therefore, the plaintiff argues, by the dual registration regulation, Section 41.4481-3 (b), the owner-lessors and not the plaintiff are liable for the tax. The government asserts that the plaintiff has accomplished an adequate registration under the California law only, not under Wisconsin law, and since the vehicles are registered only in plaintiff’s name in California, plaintiff is liable for payment of the tax. In the alternative, the government argues that even if plaintiff is considered registered in both states, the only type of registration envisioned by the federal tax statute was the type accomplished in California (base-plate), not the type in Wisconsin (prorate), and therefore, plaintiff is still liable for payment of the tax. There are three issues to be resolved by the Court in this case: 1) What was the nature of the compliance effected under California state law? 2) What was the nature of the compliance effected under Wisconsin state law? 3) Whether either or both of these compliances constitute registration for purposes of 26 U.S.C. § 4481, the Federal Highway Use Tax statute. There have been no reported cases dealing with interpretation of the term “registered” in 26 U.S.C. § 4481. (Controversies over the meaning of the term “owner” under Treas.Reg. Sec. 41.4481-3(b) have been reported. See Grain Belt Transportation Co. v. United States, 465 F.2d 1202 (10th Cir. 1972); Steel Haulers, Inc. v. United States, 316 F.Supp. 707 (W.D.Mo.1970), aff’d per curiam, 440 F.2d 1176 (8th Cir." }, { "docid": "21909704", "title": "", "text": "the several states in which it operates, in proportion to the miles travelled in each state. There was no evidence that the owners of the vehicles registered them with the state of Kansas, although it seems that Kansas law permits dual registration by the owner and the lessee, or registration only in the names of the owner. The Internal Revenue Code, 26 U.S.C. A. § 4481, imposes excise taxes on highway motor vehicles, generally known as the Federal highway use tax. The vehicles leased by taxpayer are subject to this tax. The Commissioner of Internal Revenue assessed a deficiency against the taxpayer of $13,428.75, with interest and penalties, claiming that taxpayer was liable for the payment of the tax with respect to its leased vehicles. The taxpayer paid $325 of the asserted deficiency and then brought suit pursuant to 28 U.S.C.A. 1346(a) (1) in the United States District Court for the District of Kansas, seeking a refund of the amount paid. After a trial in the district court on stipulations and the testimony of taxpayer’s president, judgment was entered for the United States on the claim for refund and against taxpayer for the remaining $13,103.75 with interest. The taxpayer has appealed. Two issues are presented for review; whether the district court was correct in determining that the taxpayer, rather than the individual owner-lessors, was liable for the highway use tax; and whether the assessment and collection of such tax from the taxpayer was a violation of the requirement that “all . . . excises shall be uniform throughout the United States,” U.S.Const., Art. I, § 8, or a denial of due process of law as guaranteed by the Fifth Amendment. The Federal statute reads in part: The tax imposed by this section shall be paid by the person in whose name the highway motor vehicle is, or is required to be, registered under the law of the State in which such vehicle is . registered. ... 26 U.S..C.A. § 4481(b). The relevant Treasury Regulation supplementing this statutory provision is in these words: Registration, (a) For purposes of the regulations in" } ]

[ { "docid": "3708321", "title": "", "text": "an associated person is not, in itself, a sufficient basis for compelling arbitration with a member. The Defendants suggest that the reasoning in WMA Securities, Inc. v. Ruppert, 80 F.Supp.2d 786 (S.D.Ohio, 1999) requires arbitration in this case, and, indeed, some other district courts seem to have reached that same conclusion. This Court, however, finds that case to be distinguishable. In Ruppert, similar to the instant case, the Defendants alleged that they had invested in certain promissory notes on the basis of misrepresentations made by registered representatives of WMA. Id. at 786. The Ruppert court first rejected WMA’s argument that, because one Defendant never opened an account with WMA, she was not a WMA customer: “Plaintiffs narrow definition of the term ‘customer’ in Rule 10301(a) finds no support in the judicial decisions applying that rule. A broader interpretation, encompassing persons who had informal business relationships with NASD members, is well-supported in the case law and the NASD Rules.” Id. at 789 (emphasis added). The Ruppert court concluded that “[b]y conducting business with [WMA]’s registered representatives, the Defendants conducted business with [WMA] and became its customers.” Id,. Before reaching that conclusion, however, the court pointed out that “[t]he evidence unequivocally establishes that both Defendants knew that their investment advisors were associated with Plaintiff at the time of the alleged misrepresentations that give rise to the Defendants’ arbitration claims.” Id. The evidence is not so unequivocal in the instant case, as detailed below, and even if the Ruppert case was controlling authority, rather than persuasive, this Court would conclude that the different facts of this case militate against summary judgment in favor of arbitration. After considering the cases cited above, and the remaining cases cited by the parties in their various memoranda, the Court concludes that in joining the NASD, ICC agreed to arbitrate disputes with its customers, rather than the customers of every person associated with ICC. The opposite construction of Rule 10301, the Court concludes, would “do significant injustice to the reasonable expectations of NASD members.” Wheat, First, 993 F.2d at 820. To compel arbitration as “customers”, the Defendants must" } ]

[ { "docid": "17463601", "title": "", "text": "bound by the plain language of the Code, which defines “customer” to include anyone who is not a broker or a dealer. See NASD Rule 0120(g) (“The term ‘customer’ shall not include a broker or dealer.”); see also John Hancock Life Ins. v. Wilson, 254 F.3d 48, 58 (2d Cir.2001) (“lookfing] no further than the plain language of Rule 10301”). We are also bound by the clear mandate from King detailed above. See King, 386 F.3d at 1370 (“The parties agree that King dealt with Micciche, so King, in turn, dealt with IFG. The Court, therefore, holds that King has satisfied the first requirement of Rules 10101(c) and 10301(a) by demonstrating that she is a customer and that IFG is a member.”). We thus hold that the Bornsteins are customers under the applicable NASD Rules because it is undisputed that they are customers of Keller, and that Keller was an associated person with MONY. Under the second part of the two-part test, we must decide whether, under Rules 10101 and 10301, the dispute “arises in connection with the business activities of the member or in connection with the activities of the associated person.” King, 386 F.3d at 1367. MONY argues that the events did not arise in connection with its business because the Bornsteins invested in viatical contracts with an unrelated company. MONY also argues that its only connection to the Bornsteins was through an intermediary (i.e., Keller), and that its duty to supervise Keller was not part of its business. Both arguments are wrong. To begin, it is irrelevant that the Bornsteins invested with an unrelated company; what matters is that Keller was also an associated person with MONY. See John Hancock, 254 F.3d at 52, 59 (rejecting the argument “that the Investors’ claims do not fall within the scope of the NASD Code because the promissory notes [that the associated person] sold to the Investors were in no way related to [the member firm’s] business”). Moreover, the Eleventh Circuit and most other courts hold that supervision of associated persons arises in connection with the member’s business. See e.g.," }, { "docid": "5990944", "title": "", "text": "securities sales. Both the Second and Sixth Circuits have found such a claim, when asserted against a brokerage firm alleged to have failed to properly supervise, “arises in connection with its business.” See Vestax Sec. Corp., 280 F.3d at 1082, quoting John Hancock, 254 F.3d at 58-59; see also Vestax, 117 F.Supp.2d at 657-58. John Hancock, like this case, deals specifically with the sale of fraudulent promissory notes. For these reasons, and for the purposes of this motion, the Court considers that this case involves plaintiffs business and is covered by Rule 10301(a). As a result, applying the third Data-phase factor, the Court cannot find that Washington Square has shown arbitration is improper in this case or that it is likely to succeed on the merits on this point. This determination counsels against the Court’s issuance of the requested injunction. D. Public Interest Finally, the Court considers the public interest. See Dataphase Sys., Inc., 640 F.2d at 114. The Court finds the public interest does not support issuing the requested emei’gency relief. Allowing the more-than-a-year-old arbitration to proceed is fully consistent with federal policy regarding arbitration. This decision also comports with the securities policy embodied in NASD Rule 10301(a). See, e.g., Vestax Sec. Corp., 280 F.3d at 1082-83. Lastly, given the investment of NASD resources in this dispute, it seems the public interest would be favored by avoiding a situation where two separate adjudicative bodies decide the same issue. IV. Conclusion Having considered all of the Dataphase factors and finding that all four disfavor the grant of emergency relief, and given the facts and information presently available, the Court finds no basis upon which to invoke its emergency powers. Accordingly, IT IS ORDERED that: 1. Plaintiffs motion for a temporary restraining order [Docket No. 2] is denied. 2. A preliminary injunction is denied. . This matter was heard over two non-consecutive days — May 10 and 23, 2002. On the second date, the matter was heard as a motion for a preliminary injunction, even though no written request was submitted. . At this extremely early stage of the case, the" }, { "docid": "13333769", "title": "", "text": "decision, the district court determined that North Carolina’s agency principles were sufficient to compel arbitration. Without allowing discovery, and based on allegations by the Investors as to representations made by Mr. White at the time of the ETS transactions, the court found “ample evidence” that Mr. White acted with apparent authority from Washington Square. J.A. II. 514. Accordingly, the district court held that the Investors were entitled to compel arbitration in their dispute with Washington Square. II. Washington Square raises several issues on appeal. In particular, it contends that the district court erred by applying Rule 10301 of the NASD Code without looking to additional language in Rule 10101, which states the eligibility requirements for arbitrable disputes. Washington Square also argues that there exists a latent ambiguity in the language of the NASD arbitration rules, and that the district court should have resolved this ambiguity by resort to its extrinsic evidence of the parties’ intent. Finally, Washington Square challenges the district court’s denial of discovery on the issue of whether White was acting as an agent of Washington Square. These are issues of first impression in this Circuit, and, as the district court noted, federal courts are divided over arbitrability of disputes between a NASD member and investors who conduct transactions through an associated person of the member. Compare John Hancock Life Ins. Co. v. Wilson, 254 F.3d 48, 59 (2nd Cir.2001) (finding that the NASD Code unambiguously requires arbitration in such circumstances), and Vestax Secs. Corp. v. McWood, 280 F.3d 1078, 1082 (6th Cir.2002) (same), and California Fina Group, Inc. v. Herrin, 379 F.3d 311, 318 (5th Cir.2004) (same), with Investors Capital Corp. v. Brown, 145 F.Supp.2d 1302, 1308 (M.D.Fla.2001) (holding that investors’ status as “customer” under the NASD Code turns on the factual issue of whether the investors attempted to have an “informal business relationship” with the member). III. A. The court reviews de novo a district court’s determination that a dispute is arbitrable. Cara’s Notions v. Hallmark Cards, 140 F.3d 566, 569 (4th Cir.1998). We address first the district court’s finding that no presumption in favor of" }, { "docid": "13333770", "title": "", "text": "agent of Washington Square. These are issues of first impression in this Circuit, and, as the district court noted, federal courts are divided over arbitrability of disputes between a NASD member and investors who conduct transactions through an associated person of the member. Compare John Hancock Life Ins. Co. v. Wilson, 254 F.3d 48, 59 (2nd Cir.2001) (finding that the NASD Code unambiguously requires arbitration in such circumstances), and Vestax Secs. Corp. v. McWood, 280 F.3d 1078, 1082 (6th Cir.2002) (same), and California Fina Group, Inc. v. Herrin, 379 F.3d 311, 318 (5th Cir.2004) (same), with Investors Capital Corp. v. Brown, 145 F.Supp.2d 1302, 1308 (M.D.Fla.2001) (holding that investors’ status as “customer” under the NASD Code turns on the factual issue of whether the investors attempted to have an “informal business relationship” with the member). III. A. The court reviews de novo a district court’s determination that a dispute is arbitrable. Cara’s Notions v. Hallmark Cards, 140 F.3d 566, 569 (4th Cir.1998). We address first the district court’s finding that no presumption in favor of arbitration applied in this case because the Investors and Washington Square never entered into an agreement to arbitrate. Washington Square urges the court to follow the reasoning of the district court on this point. We find Washington Square’s argument and the reasoning of the district court unpersuasive. The obligation and entitlement to arbitrate “does not attach only to one who has personally signed the written arbitration provision.” Int’l Paper Co. v. Schwabedissen Maschinen & Anlagen GMBH, 206 F.3d 411, 416 (4th Cir.2000). Rather, “[w]ell-established common law principles dictate that in an appropriate case a non-signatory can enforce, or be bound by, an arbitration provision within a contract executed by other parties.” Id. at 416-417. The NASD Code of Arbitration Procedure, Rule 10301(a), provides: Any dispute, claim or controversy eligible for submission ... between a customer and a member and/or associated person arising in connection with the business of such member or in connection with the activities of such associated persons shall be arbitrated under this Code, as provided by any duly executed and enforceable written" }, { "docid": "12825094", "title": "", "text": "was (1) between customers and persons associated with Vestax, and (2) arises in connection with Vestax’s alleged negligent supervision of its registered agents or representatives, the Sixth Circuit held, in Vestax, that, pursuant to Rule 10301, arbitration was the proper forum of the parties’ dispute. Id. In this case, Defendants allege, among other things, that Jefferson Pilot negligently supervised its representative, Mr. Rudolph. The Sixth Circuit has held that a brokerage firm’s business includes the supervision of its registered representatives. Vestax, 280 F.3d 1078, 1082. Because Defendants’ claims arise in connection with one of Jefferson Pilot’s representatives, the claims arise in connection with Jefferson Pilot’s business. While Plaintiff argues that Vestax does not apply to the instant matter because the dispute in Vestax concerned securities, and Plaintiff contends that the ETS investment at issue herein is not securities related, this Court finds that such argument is not dispositive of the issue. In liberally construing the matter in favor of arbitration, this Court cannot say with positive assurance that the arbitration provision at issue “is not susceptible of an interpretation that covers the asserted dispute.” AT & T Tech., Inc., 475 U.S. at 650, 106 S.Ct. 1415. In further support of this Court’s determination above, the Court recognizes the NASD’s proposed rule change “to delete the requirement that disputes be ‘securities-related’ so that any dispute, claim, or controversy arising out of or in connection with the business of an NASD member is arbitrable.” In the Matter of NASD, Inc., 20 S.E.C. Docket 233, 1980 WL 27003 at *1 (May 30, 1980). In finding that the proposed change “is consistent with the [Securities Exchange Act of 1934, 15 U.S.C. 78(s)(b)(l) ] and the rules and regulations thereunder...”, and it promotes “just and equitable principles of trade,” the Commission approved the proposed rule change. Id. This amended rule arguably extends the NASD’s arbitral authority over non-securities-related disputes, as the NASD’s disciplinary authority is not restricted to securities. In Vail v. Securities and Exchange Commiss’n, 101 F.3d 37, 39 (5th Cir.1996), a case wherein a broker misappropriated funds from a club for which he" }, { "docid": "12365389", "title": "", "text": "and since they are neither brokers nor dealers, they must therefore be customers of UBS Securities. Defendants’ interpretation of the definition of “customer” would imply that a party seeking to compel arbitration pursuant to the FINRA rules need not have an actual customer relationship with any FINRA member; rather, the party need only not be a broker or dealer. Such an interpretation of FINRA Rule 12100 would be absurd. Furthermore, defendants cite no legal authority to support their novel interpretation of the meaning of “customer” in the FINRA rules. Moreover, the only legal authority provided by defendants in support of their argument is inapposite. Defendants cite John Hancock Life Ins. Co. v. Wilson, 254 F.3d 48 (2d Cir.2001), and Vestax Securities Corp. v. McWood, 280 F.3d 1078 (6th Cir.2002), for the proposition that in some cases, a party may compel arbitration despite not having been a customer of the FINRA member in question. In both of these cases, however, the party seeking to compel arbitration was a customer of a FINRA member’s associated person. See John Hancock, 254 F.3d at 51 (sales representative of NASD member); Vestax Securities, 280 F.3d at 1080 (registered agent of NASD member); see also Bensadoun, 316 F.3d at 176 (noting that there was “no question” in John Hancock that the aggrieved investors were customers of an “associated person” of a FINRA member). By contrast, in the instant action, defendants do not allege that they were customers of an “associated person” of UBS Securities such that they may compel arbitration pursuant to FINRA Rule 12200. Rather, defendants became shareholders of a company that UBS Securities was advising in connection with an IPO. This is insufficient to establish a customer relationship with UBS Securities. Defendants have not shown that they had any other relationship, direct or indirect, with UBS Securities or with an associated person of UBS Securities. As such, defendants have failed to demonstrate that they were “customers” of UBS Securities for purposes of FINRA Rule 12200. In sum, UBS Securities has shown that defendants’ claims are not arbitrable in the FINRA forum or otherwise. UBS" }, { "docid": "5990939", "title": "", "text": "where the arbitral panel had already heard the question of arbitrability. Both Circuits’ ultimate decision upheld trial court orders compelling arbitration. Considering all of these factors, the Court finds the arbitration panel’s decision in this case appropriate. 2. Are Defendants Customers? Plaintiff asks the Court to find defendants were not customers within the contemplation of NASD Rule 10301(a), or that the dispute did not arise in connection with its securities business. Plaintiff further asks the Court to consider extrinsic evidence to be offered by a drafter of the NASD rules. Plaintiff proffers this evidence in the wake of a bit of obiter dicta inserted by Judge Katzmann in his concurrence in John Hancock, 254 F.3d at 61. Judge Katzmann noted the absence of any rules-drafter testimony concerning the Rules’ definition of “customer.” In the absence of such testimony, he conjectured that it might shed light on the questioned Rule’s meaning. While this Court is loathe to disregard the teaching of an appellate court, one concurring judge’s musing on what might have been is hardly the stuff of stare decisis. There does not seem to be a need to puff on a 20-some-year-old dying ember recollection of one of heaven-knows-how-many NASD Rule drafters. Such an effort scarcely generates any heat, let alone offers any light on the subject. Federal case law plainly states that “when the investor deals with an agent or representative [of a member], the investor deals with the member, and on that basis the investor is entitled to have resolved in arbitration any dispute that arises out of that relationship.” Vestax Sec. Corp., 280 F.3d at 1081. And Vestax makes clear the investors need not be direct customers of the NASD member' — here Washington Square' — in order to invoke Rule 10301(a)’s arbitration protections. See id. In applying the Rule, federal courts have found “the fact that defendants [the investors] never opened accounts with plaintiff [ ] irrelevant.” See Vestax Sec. Corp. v. Skillman, 117 F.Supp.2d 654, 657 (N.D.Ohio 2000) aff'd 280 F.3d 1078 (6th Cir.2001); WMA Sec., Inc. v. Wynn, 32 Fed.Appx. 726, 2002 U.S.App. LEXIS" }, { "docid": "17463606", "title": "", "text": "is “determined as of the time of the events providing the basis for the allegations of fraud.” Id. In other words, Wheat discussed timing for investors who were harmed by the firm’s successor in interest. In contrast, in both King and here, the investor was a customer at the time the events took place. Moreover, the Wheat court explicitly-ducked the question presented in King and here, writing that while the question whether the NASD is alone sufficient to compel arbitration “presents a tantalizing question, we leave its resolution for another day.” Id. To restate, King answered the tantalizing question left by Wheat, and we subscribe to King’s, answer. MONY makes the related argument that the district court erred because its decision conflicted with two recent decisions from the Middle District of Florida. See generally MONY Sec. Corp. v. Vasquez, 238 F.Supp.2d 1304 (M.D.Fla.2002); Investors Capital Corp. v. Brown, 145 F.Supp.2d 1302 (M.D.Fla.2001). MONY suggests that we accept the reasoning from those decisions. We disagree, mainly for the reasons stated in Part II. We also disagree because King already found those cases unpersuasive. King, 386 F.3d at 1369 (“The reasoning of these decisions is not persuasive, however, because they read a limitation into the Code that is absent from its language.”); see also John Hancock, 254 F.3d at 60 (rejecting Investors Capital Corp. “as contrary to the plain language of Rule 10301”). The second argument focuses on facts. Specifically, MONY argues that there are disputed facts that militate against the district court’s decision granting summary judgment for the Bornsteins. MONY cites a cornucopia of facts that it disputes. MONY also argues that the district court’s version of the facts rested on an erroneous law-of-the-case ruling. Even if true, these arguments fail to change our decision. In our review of the district court’s decision, we are unconcerned with MONY’s cornucopia of disputed facts. Instead, we focus on those facts required to satisfy King’s two-part test. So while there many be dozens of disputed facts, the facts that matter in this case are undisputed: the Bornsteins were customers of Keller, who was an" }, { "docid": "6899051", "title": "", "text": "Stearns & Co., 906 F.2d 315, 318 (7th Cir.1990) that the sale of securities “is usually a rather complex and convoluted transaction which requires the expertise and involvement of several parties to succeed.” To allow Lehman to solicit Investors using allegedly bad market information without repercussion defeats the NYSE’s goals of “maintaining high standards of commercial honor and integrity among its members.” NYSE Const, art. 1, § 2. The Court has considered these goals, along with the federal mandate to resolve all doubts in favor of arbitration. In doing so, the Court finds that permitting Investors to compel arbitration as “customers” upholds the parties’ reasonable expectations. Lehman, 939 F.Supp. at 1340-41. Like the NYSE, the NASD requires its members to observe high standards of commercial honor and just and equitable principles of trade. NASD Rule 2110. The Court specifically notes that NASD Arbitration Rule 10301 and its definitional rule, Rule 0120(g), are broad. Rule 0120(g) simply states that “[t]he term ‘customer’ shall not include a broker or dealer.” The NASD chose not to limit .customers to investors with accounts with the member-firm. Rule 10301 and Rule 0120(g) contain no limitations other than exclusion of brokers and dealers from invoking rules relating to customers. Ranch is not a broker or a dealer, but falls within the NASD definition of “customer.” In Oppenheimer & Co., Inc. v. Neidhardt, 56 F.3d 352 (2d Cir.1995), the Second Circuit Court of Appeals resolved a similar issue in favor of arbitration. The brokerage firm unsuccessfully argued the investor was not a customer of the firm under NASD Rule 10301 because the broker who dealt with the investor created a false corporate account and the firm had no record of the investor, nor any account agreement with him. See id. at 357. Here, the uncontroverted evidence of a customer relationship is more compelling than either Lehman or Oppenheimer. First Montauk admittedly had a duty to supervise its registered representative Muller in accordance with the federal securities laws and the rules, regulations, and by-laws, of the NASD. First Montauk argues that Ranch received documents from Asset Reporting Systems," }, { "docid": "17463605", "title": "", "text": "the “reasonable expectations” of member firms in joining the NASD, see, e.g., Wheat, First Securities v. Green, 993 F.2d 814, 820 (11th Cir.1993).... In other words, MONY argues that Wheat should control this case. But King did not address Wheat. Therefore, one could argue that King got it wrong because it ran afoul of the prior-panel rule, under which “we are bound by earlier panel holdings ... unless and until they are overruled en banc or by the Supreme Court.” United States v. Smith, 122 F.3d 1355, 1359 (11th Cir.1997). This argument fails because King is consistent with Wheat. It is true that Wheat contains some language to support MONY’s arguments: “We cannot imagine that any NASD member would have contemplated that its NASD membership alone would require it to arbitrate claims which arose while a claimant was a customer of another member merely because the claimant subsequently became its customer.” Wheat, 993 F.2d at 820. But the court decided Wheat on much narrower grounds, holding only “that customer status for purposes of’ the NASD is “determined as of the time of the events providing the basis for the allegations of fraud.” Id. In other words, Wheat discussed timing for investors who were harmed by the firm’s successor in interest. In contrast, in both King and here, the investor was a customer at the time the events took place. Moreover, the Wheat court explicitly-ducked the question presented in King and here, writing that while the question whether the NASD is alone sufficient to compel arbitration “presents a tantalizing question, we leave its resolution for another day.” Id. To restate, King answered the tantalizing question left by Wheat, and we subscribe to King’s, answer. MONY makes the related argument that the district court erred because its decision conflicted with two recent decisions from the Middle District of Florida. See generally MONY Sec. Corp. v. Vasquez, 238 F.Supp.2d 1304 (M.D.Fla.2002); Investors Capital Corp. v. Brown, 145 F.Supp.2d 1302 (M.D.Fla.2001). MONY suggests that we accept the reasoning from those decisions. We disagree, mainly for the reasons stated in Part II. We also disagree" }, { "docid": "12825093", "title": "", "text": "Id. at 1082. Defendants in the within matter make the same claim against Mr. Rudolph’s brokerage firm, Jefferson Pilot. Cognizant of the requirement that the dispute at issue must arise out of, or be in connection with, the activities of the NASD member or in connection with the business of the associated person, in accordance with Rule 10301, the Sixth Circuit concluded that “ ‘[a] dispute that arises from a firm’s lack of supervision over its brokers arises in connection’ with its business.” ’ Vestax, 280 F.3d at 1082 (quoting John Hancock Life Insurance Co. v. Wilson, 254 F.3d 48, 58-59 (2d Cir.2001)). Additionally, citing Oppenheimer & Co. v. Neidhardt, 56 F.3d 352, 357 (2d Cir.1995), the Sixth Circuit accepted the proposition that when an investor deals with an agent or representative, the investor deals with the member, and on that basis the investor is entitled to arbitration of any dispute that arises out of that relationship. Vestax, 280 F.3d at 1082 (citing Oppenheimer, 56 F.3d at 357). Therefore, having determined that the relevant dispute was (1) between customers and persons associated with Vestax, and (2) arises in connection with Vestax’s alleged negligent supervision of its registered agents or representatives, the Sixth Circuit held, in Vestax, that, pursuant to Rule 10301, arbitration was the proper forum of the parties’ dispute. Id. In this case, Defendants allege, among other things, that Jefferson Pilot negligently supervised its representative, Mr. Rudolph. The Sixth Circuit has held that a brokerage firm’s business includes the supervision of its registered representatives. Vestax, 280 F.3d 1078, 1082. Because Defendants’ claims arise in connection with one of Jefferson Pilot’s representatives, the claims arise in connection with Jefferson Pilot’s business. While Plaintiff argues that Vestax does not apply to the instant matter because the dispute in Vestax concerned securities, and Plaintiff contends that the ETS investment at issue herein is not securities related, this Court finds that such argument is not dispositive of the issue. In liberally construing the matter in favor of arbitration, this Court cannot say with positive assurance that the arbitration provision at issue “is not" }, { "docid": "5990945", "title": "", "text": "arbitration to proceed is fully consistent with federal policy regarding arbitration. This decision also comports with the securities policy embodied in NASD Rule 10301(a). See, e.g., Vestax Sec. Corp., 280 F.3d at 1082-83. Lastly, given the investment of NASD resources in this dispute, it seems the public interest would be favored by avoiding a situation where two separate adjudicative bodies decide the same issue. IV. Conclusion Having considered all of the Dataphase factors and finding that all four disfavor the grant of emergency relief, and given the facts and information presently available, the Court finds no basis upon which to invoke its emergency powers. Accordingly, IT IS ORDERED that: 1. Plaintiffs motion for a temporary restraining order [Docket No. 2] is denied. 2. A preliminary injunction is denied. . This matter was heard over two non-consecutive days — May 10 and 23, 2002. On the second date, the matter was heard as a motion for a preliminary injunction, even though no written request was submitted. . At this extremely early stage of the case, the facts are necessarily uncertain and subject to reevaluation. This section is based on the Court's present understanding, and the parties' pleadings and assertions. . Defendants apparently produced their documents on May 2, 2002, after an order and a reprimand by the NASD panel. . The record does not specify the date on which the panel heard the jurisdictional challenge; it appears to have been during the May 6-10, 2002, hearings. . The arbitration panel considered arguments similar to those presented here. Washington Square denied the panel had jurisdiction under the NASD Arbitration Code. It claimed the individual investors were not Washington Square customers, because they did not sign a customer agreement. Plaintiff claimed the investors worked with Henderson in his individual capacity, and not as its representative. The investors replied that Washington Square had waived a jurisdictional challenge by declining to make the challenge earlier. The investors also claimed they were, in fact, Washington Square customers and covered by NASD Rule 10301(a). . The Sixth Circuit Court also upheld the trial court's decision dismissing the" }, { "docid": "5990943", "title": "", "text": "of the alleged misconduct, furthers ... policy and recognizes market reality.... The sale of securities is usually a rather complex and convoluted transaction which requires the expertise and the involvement of several parties to succeed. Lehman Bros. Inc. v. Certified Reporting Co., 939 F.Supp. 1333 (N.D.Ill.1996). When a broker is alleged to have committed fraud and other wrongdoing, it is quite conceivable that monies would be misappropriated or wrongly invested, and would therefore not travel through Washington Square’s regular accounts. The defendants claim they established accounts with Henderson, a licensed representative, and purchased securities on his recommendation. For these purposes, the Court considers them to be customers of a Washington Square-associated person, and therefore, customers of Washington Square. See WMA Sec., 32 Fed.Appx. 726, 2002 U.S.App. LEXIS 6247 (unpublished). 3. Does Dispute Involve Plaintiff’s Business? During the arbitration proceedings, defendants have claimed, among other things, that plaintiff failed to properly supervise Henderson, and that they have suffered from violations of state and federal securities law, breaches of fiduciary duty, and breaches of contract relating to securities sales. Both the Second and Sixth Circuits have found such a claim, when asserted against a brokerage firm alleged to have failed to properly supervise, “arises in connection with its business.” See Vestax Sec. Corp., 280 F.3d at 1082, quoting John Hancock, 254 F.3d at 58-59; see also Vestax, 117 F.Supp.2d at 657-58. John Hancock, like this case, deals specifically with the sale of fraudulent promissory notes. For these reasons, and for the purposes of this motion, the Court considers that this case involves plaintiffs business and is covered by Rule 10301(a). As a result, applying the third Data-phase factor, the Court cannot find that Washington Square has shown arbitration is improper in this case or that it is likely to succeed on the merits on this point. This determination counsels against the Court’s issuance of the requested injunction. D. Public Interest Finally, the Court considers the public interest. See Dataphase Sys., Inc., 640 F.2d at 114. The Court finds the public interest does not support issuing the requested emei’gency relief. Allowing the more-than-a-year-old" }, { "docid": "17463602", "title": "", "text": "connection with the business activities of the member or in connection with the activities of the associated person.” King, 386 F.3d at 1367. MONY argues that the events did not arise in connection with its business because the Bornsteins invested in viatical contracts with an unrelated company. MONY also argues that its only connection to the Bornsteins was through an intermediary (i.e., Keller), and that its duty to supervise Keller was not part of its business. Both arguments are wrong. To begin, it is irrelevant that the Bornsteins invested with an unrelated company; what matters is that Keller was also an associated person with MONY. See John Hancock, 254 F.3d at 52, 59 (rejecting the argument “that the Investors’ claims do not fall within the scope of the NASD Code because the promissory notes [that the associated person] sold to the Investors were in no way related to [the member firm’s] business”). Moreover, the Eleventh Circuit and most other courts hold that supervision of associated persons arises in connection with the member’s business. See e.g., King, 386 F.3d. at 1370 (“We conclude that King’s claim of negligent supervision satisfies the Code’s second arbitration condition.”); Vestax Sec. Corp. v. McWood, 280 F.3d 1078, 1082 (6th Cir.2002) (“A dispute that arises from a firm’s lack of supervision over its brokers arises in connection with its business.” (quoting John Hancock, 254 F.3d at 58-59) (internal quotation marks omitted)); WMA Sec., Inc. v. Ruppert, 80 F.Supp.2d 786, 790 (S.D.Ohio 1999) (“Plaintiffs business includes the supervision of its large corps of registered representatives. Because Defendants’ claims arise in connection with the supervision of two of those representatives, they arise in connection with Plaintiffs business.”). Accordingly, the events arose in connection with MONY’s business. In sum, we conclude that the NASD Code requires MONY to arbitrate its dispute with the Bornsteins. III. Part II concluded that King largely controls the outcome in this case, but this conclusion does not end our analysis. We must proceed to answer counterarguments. We have considered all of MONY’s and the Bornsteins’ arguments, and we conclude that they are either without" }, { "docid": "5990938", "title": "", "text": "and upheld the underlying trial court order compelling arbitration. In Vestax Securities Corporation v. McWood, another case examining whether investor claims against a securities firm are subject to arbitration, the Sixth Circuit Court of Appeals also found the courts had the authority to determine arbitrability and granted a motion to compel arbitration. See 280 F.3d 1078 (6th Cir.2001). Here, the parties have already submitted the question of arbitrability to the Pennsylvania panel. That panel found it had jurisdiction over the matter, and that the dispute was arbitrable. Two Circuits have decided this question is for the courts; but, after each had found the question was for the courts, deferred in favor of arbitration. In this case, where the parties have already submitted this question to the arbitration panel, the Court finds it reasonable to allow the matter to proceed in the arbitral forum. While both the Second and Sixth Circuits found the arbitral decision rests with the Court, neither confronted a situation where the arbitration had been in process for more than one year, or where the arbitral panel had already heard the question of arbitrability. Both Circuits’ ultimate decision upheld trial court orders compelling arbitration. Considering all of these factors, the Court finds the arbitration panel’s decision in this case appropriate. 2. Are Defendants Customers? Plaintiff asks the Court to find defendants were not customers within the contemplation of NASD Rule 10301(a), or that the dispute did not arise in connection with its securities business. Plaintiff further asks the Court to consider extrinsic evidence to be offered by a drafter of the NASD rules. Plaintiff proffers this evidence in the wake of a bit of obiter dicta inserted by Judge Katzmann in his concurrence in John Hancock, 254 F.3d at 61. Judge Katzmann noted the absence of any rules-drafter testimony concerning the Rules’ definition of “customer.” In the absence of such testimony, he conjectured that it might shed light on the questioned Rule’s meaning. While this Court is loathe to disregard the teaching of an appellate court, one concurring judge’s musing on what might have been is hardly the" }, { "docid": "6752588", "title": "", "text": "further supports the proposition that “customer” in the NASD Code refers to one involved in a business relationship with an NASD member that is related directly to investment or brokerage services. Although other cases interpreting the term “customer” have in some ways taken a broad view of the term, in all of these cases there existed some brokerage or investment relationship between the parties. See, e.g., Oppenheimer & Co. v. Neidhardt, 56 F.3d 352, 358 (2d Cir.1995) (holding that investors who had been defrauded by a representative of an NASD firm were customers of that firm under the NASD Code, despite the fact that they never opened formal accounts with the firm); Vestax Sec. Corp. v. McWood, 116 F.Supp.2d 865, 869 (E.D.Mich.2000) (noting that “in the securities context” courts have taken a broad view of “customer”) (emphasis added); First Montauk Sec. Corp. v. Four Mile Ranch Dev. Co., 65 F.Supp.2d 1371, 1380-81 (S.D.Fla.1999) (finding an investor was a customer of an NASD firm, when his account was maintained at a different brokerage firm, but a representative of the member firm managed the investor’s account). We decline to extend the definition where the business relationship did not include these activities. In sum, while this is a close call, we do not believe the NASD Rules require a member to submit to arbitration in every dispute that involves its business activities with a non-member — as AdFlex’s proposed definition of “customer” would require. We agree with the district court that “customer” does not include an entity such as AdFlex, which only received financial advice, without receiving investment or brokerage related services, from an NASD member. AdFlex correctly recognizes that, where the parties have agreed to arbitrate, there is a strong federal policy in favor of arbitration. Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) (“[t]he Arbitration Act establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration”). However, this does not change the fact that one cannot" }, { "docid": "6752587", "title": "", "text": "dealing with customers — -that defines a “customer” as “any person who, in the regular course of such member’s business, has cash or securities in the possession of such member.” NASD Rules of Conduct § 2270. Although that particular provision defines customer in one specific context, there are numerous other provisions in the NASD Rules of Conduct that support this definition of customer. See id. § 2230 (governing broker transaction confirmations); § 2260 (forwarding securities related information); § 2280 (investor education); § 2310 (investment recommendations); § 2320 (executing orders); § 2330 (maintaining customer’s securities and accounts); §§ 2400-2460 (commissions on brokerage accounts and securities transactions); §§ 2700-2780 (securities distributions). Additionally, the NASD’s Manual and Notices to Members states that the arbitration forum exists “[t]o assist in the resolution of monetary and business disputes between investors and their securities firms (as well as between member firms).” NASD Manual & Notices to Members— Administrative — Profile of the NASD— Regulation of the Broker/Dealer Profession and Securities Markets — Arbitration and Mediation, NASD Manual available at http://secure.nasdr.com. This further supports the proposition that “customer” in the NASD Code refers to one involved in a business relationship with an NASD member that is related directly to investment or brokerage services. Although other cases interpreting the term “customer” have in some ways taken a broad view of the term, in all of these cases there existed some brokerage or investment relationship between the parties. See, e.g., Oppenheimer & Co. v. Neidhardt, 56 F.3d 352, 358 (2d Cir.1995) (holding that investors who had been defrauded by a representative of an NASD firm were customers of that firm under the NASD Code, despite the fact that they never opened formal accounts with the firm); Vestax Sec. Corp. v. McWood, 116 F.Supp.2d 865, 869 (E.D.Mich.2000) (noting that “in the securities context” courts have taken a broad view of “customer”) (emphasis added); First Montauk Sec. Corp. v. Four Mile Ranch Dev. Co., 65 F.Supp.2d 1371, 1380-81 (S.D.Fla.1999) (finding an investor was a customer of an NASD firm, when his account was maintained at a different brokerage firm, but a" }, { "docid": "5990940", "title": "", "text": "stuff of stare decisis. There does not seem to be a need to puff on a 20-some-year-old dying ember recollection of one of heaven-knows-how-many NASD Rule drafters. Such an effort scarcely generates any heat, let alone offers any light on the subject. Federal case law plainly states that “when the investor deals with an agent or representative [of a member], the investor deals with the member, and on that basis the investor is entitled to have resolved in arbitration any dispute that arises out of that relationship.” Vestax Sec. Corp., 280 F.3d at 1081. And Vestax makes clear the investors need not be direct customers of the NASD member' — here Washington Square' — in order to invoke Rule 10301(a)’s arbitration protections. See id. In applying the Rule, federal courts have found “the fact that defendants [the investors] never opened accounts with plaintiff [ ] irrelevant.” See Vestax Sec. Corp. v. Skillman, 117 F.Supp.2d 654, 657 (N.D.Ohio 2000) aff'd 280 F.3d 1078 (6th Cir.2001); WMA Sec., Inc. v. Wynn, 32 Fed.Appx. 726, 2002 U.S.App. LEXIS 6247 (6th Cir. April 1, 2002) (unpublished) (finding investment firm’s lack of knowledge about both customers and transactions, and the absence of contract do not negate customer status). Plaintiff fervently asserts defendants’ non-customer status. But other than loft ing up the extrinsic statement of the NASD drafter, tenders no case law in support of its position. This Court finds the Rule’s language unambiguous, and therefore, sees no need for extrinsic evidence on the point. There is nothing arcane, abstruse or abstracted about the term customer, nor is there evidence that it is a complicated term of art. The Court finds the plain language of the NASD Code, and reported decisions squarely considering the issue, considerably more compelling than testimony of one drafter’s idea of a term’s meaning. In this case, there does not appear to be a dispute over the fact that defendants used Henderson’s services to purchase securities — Henderson was a Washington Square registered representative. The short version of Washington Square’s argument is that “Henderson is a thief but not our thief.” If" }, { "docid": "12825090", "title": "", "text": "company: (a) between or among members; (b) between or among members and associated persons; (c) between or among members or associated persons and public customers, or others.... NASD Code of Arbitration Procedure, Rule 10101. Moreover, the NASD’s Uniform Code of Arbitration, under “Required Submissions,” provides the following: Any dispute, claim, or controversy eligible for submission under the Rule 10100 Series [above] between a customer and a member and/or associated person arising in connection with the business of such member or in connection with the activities of such associated persons shall be arbitrated under this Code, as provided by any duly executed and enforceable written agreement or upon the demand of the customer.... NASD Uniform Code of Arbitration, Rule 10301. The Sixth Circuit has held that even in the absence of a “direct transactional relationship” with an NASD-member firm, the NASD Code of Arbitration Procedure “creates the right of parties to compel” such firm to arbitrate, in accordance with Rule 10301, as recited above. Vestax Sec. Corp. v. McWood, 280 F.3d 1078, 1081 (6th Cir.2002). The Vestax Court determined that there are two conditions that must be satisfied in order to trigger the NASD arbitration requirement: (1) the claim must involve a dispute between either an NASD-member and a customer, or an associated person and a customer; and (2) the dispute must arise in connection with the activities of the member or in connection with the business activities of the associated person. Vestax, 280 F.3d at 1081. In the instant case, there is no dispute that Plaintiff Jefferson Pilot is, in fact, an NASD-member firm. The dispute, however, lies with the activities of the “associated person,” Michael Rudolph, and his customers, the Defendants. Plaintiff contends that in order for the matter to be eligible for arbitration, the dispute between the associated person, Michael Rudolph, and his customers must arise out of or in connection with the “business of a member.” If the dispute does not include the sale of a security, as Plaintiff contends, then the dispute, by definition, does not “arise out of,” nor is it “in connection with,” the" }, { "docid": "12825092", "title": "", "text": "business of a securities broker/dealer, Jefferson Pilot. See Plaintiffs Motion to Stay Arbitration, p. 9. Plaintiff contends that the ETS investment at issue in this case does not involve the sale.of a security, and therefore, it does not involve the “business of any member.” As such, Plaintiff concludes that Defendants have no legal or contractual basis upon which to proceed with Arbitration, pursuant to NASD Rule 10101. In Ves tax, supra, the dispute centered on the alleged negligent and fraudulent conduct of two of the brokerage firm’s dealers’ conduct in certain securities investments. Over a period of time, the two registered representatives of Vestax, John Davis and Brian Dunn, recommended securities and made purchases on behalf of the Defendants. The Vestax Defendants lost all of their money in such investments and claimed that the loss was due to the agents’ poor investment advice. Vestax, 280 F.3d at 1080. The Vestax Defendants also alleged that the failure of Vestax to properly supervise the activities of its agents, Davis and Dunn, led to the loss at issue. Id. at 1082. Defendants in the within matter make the same claim against Mr. Rudolph’s brokerage firm, Jefferson Pilot. Cognizant of the requirement that the dispute at issue must arise out of, or be in connection with, the activities of the NASD member or in connection with the business of the associated person, in accordance with Rule 10301, the Sixth Circuit concluded that “ ‘[a] dispute that arises from a firm’s lack of supervision over its brokers arises in connection’ with its business.” ’ Vestax, 280 F.3d at 1082 (quoting John Hancock Life Insurance Co. v. Wilson, 254 F.3d 48, 58-59 (2d Cir.2001)). Additionally, citing Oppenheimer & Co. v. Neidhardt, 56 F.3d 352, 357 (2d Cir.1995), the Sixth Circuit accepted the proposition that when an investor deals with an agent or representative, the investor deals with the member, and on that basis the investor is entitled to arbitration of any dispute that arises out of that relationship. Vestax, 280 F.3d at 1082 (citing Oppenheimer, 56 F.3d at 357). Therefore, having determined that the relevant dispute" } ]

[ { "docid": "14956624", "title": "", "text": "KIRKPATRICK, District Judge. The plaintiff’s argument to the effect that claims 5 and 6 (originally 32 and 33) were intended by the applicant to continue the broad concept embodied in claim 8 for internal vibration generally, and that the element “progressively moving the said vibrating body in the material” was inserted for the sole purpose of distinguishing the claim from Atterbury (which the patentee apparently- assumed disclosed internal vibration but in which the vibrator was stationary), merits careful consideration, and I have endeavored to accord it. The difficulty with it is that, even if it be conceded that the applicant so understood and intended it, the fact remains that the Patent Office proceedings resulted in the grant of a patent, and the rule of interpretation is well established that where an ambiguous word or expression (“progressively moving”) appearing in the final integration of any contract or transaction (the claim as granted) has been chosen by one of the parties and accepted by the other, it must be understood, not in the sense in which the party choosing it may have understood or intended it, but in the sense in which he had reason to suppose it would be understood by the other party. 12 Am.Jur., Contracts, Sec. 231. The Restatement of the Law of Contracts, Sec. 227, proposes as one standard of interpretation “a standard of reasonable expectation, which would- attach to words * * * the meaning which the party employing them should reasonably have apprehended that they would to the other party.” The law of contracts does' not judge a promisor’s obligation by what is in his mind, but by the objective test of what his promise would be understood to mean by a reasonable man in the situation of the promisee. Lee v. State Bank, 2 Cir., 54 F.2d 518, 85 A.L.R. 216. The negotiations between the parties to a contract (which, in the case of a patent, are found in the file wrapper history) may be examined by the Court to supply an interpretation of a claim of doubtful meaning. Goodyear Dental Vulcanite Co. v. Davis," } ]

[ { "docid": "11242825", "title": "", "text": "was claim 23 in the application, differs from the British patent in that the claim calls for the armature to lie on the same side of the supporting member as the magnet and also calls for the poles of the magnet to oppose each other, whereas in the British patent the armature lies on the side of the supporting member opposite the magnet, and the poles are staggered. In addition, Somers’ attorney pointed out that claim 5 calls for the armature to be mounted in spaced relation to the supporting member, with the terminals and the spring contact members lying in the space between the armature and the supporting member, and for the fingers to extend toward the supporting members, whereas the British patent has the terminals and spring contact members beside the armature and has the fingers extending away from the supporting member. The remaining patents cited in the application file relate to various features of the Somers relay, but are not sufficiently pertinent to warrant further dicussion here. VALIDITY ISSUE 16. The defendant urges that claim 5 of the Somers patent is invalid in view of the prior art. In support of this contention, the defendant relies on three United States patents, two specific prior devices, and indirectly on the application file of the Somers patent. 17. The Somers relay, which was shown at the IRE Show, and from which the patent drawings were made, contains each and every element and limitation of claim 5. The Somers patent is entitled to an invention date of not later than March 6,1952. 18. The Cole patent 2,428,784 which issued on October 14, 1947, discloses a magnetic motor starting switch. Referring to figs. 1-5, which are reproduced herein, the Cole switch includes a U-shaped magnet 22 having legs 21 secured to a support member 20, the legs 21 being substantially parallel and extending from opposite ends of the energizing coil 24. An armature 27 is rotatably mounted midway between its ends on pin 25 and the same side of support member 20 as the magnet and extends at right angles to" }, { "docid": "11242846", "title": "", "text": "No. KX1P20 Magnecraft Electric_Model No. W44HSX-105 Union Switch & Signal_Model No. CS26HP2H Western Electric_Model No. GS57668 34. Clause (f) of claim 5 of the Somers patent recites that the fingers be “secured at opposite sides of the armature and extending toward the supporting member.” The phrase “opposite sides” in this claim is ambiguous. The term “sides” could refer first, to sides of the armature with respect to the axis of rotation, or second, to sides as opposed to top, bottom, or ends, or third, to sides in the geometric sense in which the sides, top, bottom, and ends are all considered sides. Reference to the drawings of the patent in suit, which are reproduced above, is of no help since the drawings conform to all three of the above interpretations. Similarly, the specification of the patent is of no help, since the use of the phrase in the specification also lends itself to all three interpretations. In this light, it is proper to refer to the application file for clarification. 35. As originally filed, application claims 8-11, subsequently canceled, each described the fingers as “a member secured to the armature at each side of said axis of rotation.” This clause encompasses the first meaning set forth in the preceding finding. Application claims 12 and 14, also subsequently canceled, contained similar language to point out that “sides” refers to sides of the armature with respect to the axis of rotation. When the aforementioned application claims were canceled after the first Patent Office action, application claims 16-22 were added. Application claims 17 and 19-21 described the fingers as resilient members secured one at each side of the armature. This clause is not quite as clear as the previous one, since it could refer to either the first or second meaning, i.e., sides with respect to the axis of rotation, or sides as opposed to top, bottom, or ends. Application claim 22 described the fingers as “fingers projecting outward and then parallel to said armatures from opposite faces thereof with ends extending at substantially right angles to said parallel portions of said fingers" }, { "docid": "11242845", "title": "", "text": "rely heavily on certain limitations recited in the claims to distinguish the claims over the prior art. For these reasons, the claims of the patent must be strictly construed. 33. Clause (b) of claim 5, as set forth in finding 14, recites that the opposing poles of the magnet have their “free end portions extending toward and fixedly secured at one face of said supporting member.” None of the following accused relays support the poles of the magnet at their free ends. Each of these relays provides support for the poles of the magnet at a point above the free ends. These accused relays do not infringe claim 5 of the Somers patent: Advance Relays (Elgin National)— Model No. MV2C-600D-11 Allied Control Company-Model No. KHY-6B-26.5 Allied Control Company_Model No. KHJ-6D-26.5 Amerelay Corporation_Model No. A3A26.5 Amerelay Corporation_Model No. A4A26.5-4 Branson Corporation_Model No. AEB-2C-24A Cómar Electric_Model No. SM-151 Control Dynamics_Model No. A25MJ732 Eiltors, Inc__ Model No. P26A1J6A General Electric Company_Model No. 3S2791-G200B9 Guardian Electric_Model No. 1R1005P Hi-G, Inc_Model No. 2B-1D126 Iron Fireman_Model No. 78GBON-4-D-600 Kurman Electric_ Model No. KX1P20 Magnecraft Electric_Model No. W44HSX-105 Union Switch & Signal_Model No. CS26HP2H Western Electric_Model No. GS57668 34. Clause (f) of claim 5 of the Somers patent recites that the fingers be “secured at opposite sides of the armature and extending toward the supporting member.” The phrase “opposite sides” in this claim is ambiguous. The term “sides” could refer first, to sides of the armature with respect to the axis of rotation, or second, to sides as opposed to top, bottom, or ends, or third, to sides in the geometric sense in which the sides, top, bottom, and ends are all considered sides. Reference to the drawings of the patent in suit, which are reproduced above, is of no help since the drawings conform to all three of the above interpretations. Similarly, the specification of the patent is of no help, since the use of the phrase in the specification also lends itself to all three interpretations. In this light, it is proper to refer to the application file for clarification. 35. As originally filed, application" }, { "docid": "11242824", "title": "", "text": "2 and 3 reproduced herein, the British patent relay is comprised of a base plate 1 on which are mounted two pairs of fixed terminal pins 11 having connecting loops 12. Extending between each pair of the terminal pins is a resilient contact member 9 having a connecting loop 10. A U-shaped magnet 2 is provided wherein a core 3 is on the opposite side of base plate 1 from the contact terminals 11, and the magnet poles 5 extend through base plate 1 to the contact terminal side. An armature 8 is mounted on pivot pin 7 between the poles 5. Projecting outwardly from the two ends of the armature 8 are arms 13 carrying forks 14 which engage with contact members 9. Poles 5 are attached to the ends of core 3 by means of end plates 4 which serve to offset and stagger the poles so that they pass through base plate 1 at the diagonal corners thereof. Somers’ attorney argued to the examiner that claim 5 of the Somers patent, which was claim 23 in the application, differs from the British patent in that the claim calls for the armature to lie on the same side of the supporting member as the magnet and also calls for the poles of the magnet to oppose each other, whereas in the British patent the armature lies on the side of the supporting member opposite the magnet, and the poles are staggered. In addition, Somers’ attorney pointed out that claim 5 calls for the armature to be mounted in spaced relation to the supporting member, with the terminals and the spring contact members lying in the space between the armature and the supporting member, and for the fingers to extend toward the supporting members, whereas the British patent has the terminals and spring contact members beside the armature and has the fingers extending away from the supporting member. The remaining patents cited in the application file relate to various features of the Somers relay, but are not sufficiently pertinent to warrant further dicussion here. VALIDITY ISSUE 16. The defendant" }, { "docid": "11242823", "title": "", "text": "transposed here from the end of the claim.] (d) a plurality of pairs of terminals carried by the supporting member in the space between it and the armature, (e) a plurality of spring contact members each of which is fixed at one end with respect to the supporting member and has its free end extending between and being biased toward one of a pair of terminals, said contact members lying between the armature and the supporting .member, (f) fingers secured at opposite sides of the armature and extending toward the supporting member, each of said fingers being adapted to engage one of said spring contact members to move the latter into engagement with the other of said pair of terminals when the armature is rotated, * * *. British patent 572,686 15. Referring to the application file of the Somers patent, the examiner cited six prior art disclosures. The most pertinent of these prior disclosures is British patent 572,686 for “Improvements in. and relating to Shock Resisting Relays and Switches.” As shown in figs. 1, 2 and 3 reproduced herein, the British patent relay is comprised of a base plate 1 on which are mounted two pairs of fixed terminal pins 11 having connecting loops 12. Extending between each pair of the terminal pins is a resilient contact member 9 having a connecting loop 10. A U-shaped magnet 2 is provided wherein a core 3 is on the opposite side of base plate 1 from the contact terminals 11, and the magnet poles 5 extend through base plate 1 to the contact terminal side. An armature 8 is mounted on pivot pin 7 between the poles 5. Projecting outwardly from the two ends of the armature 8 are arms 13 carrying forks 14 which engage with contact members 9. Poles 5 are attached to the ends of core 3 by means of end plates 4 which serve to offset and stagger the poles so that they pass through base plate 1 at the diagonal corners thereof. Somers’ attorney argued to the examiner that claim 5 of the Somers patent, which" }, { "docid": "11242826", "title": "", "text": "urges that claim 5 of the Somers patent is invalid in view of the prior art. In support of this contention, the defendant relies on three United States patents, two specific prior devices, and indirectly on the application file of the Somers patent. 17. The Somers relay, which was shown at the IRE Show, and from which the patent drawings were made, contains each and every element and limitation of claim 5. The Somers patent is entitled to an invention date of not later than March 6,1952. 18. The Cole patent 2,428,784 which issued on October 14, 1947, discloses a magnetic motor starting switch. Referring to figs. 1-5, which are reproduced herein, the Cole switch includes a U-shaped magnet 22 having legs 21 secured to a support member 20, the legs 21 being substantially parallel and extending from opposite ends of the energizing coil 24. An armature 27 is rotatably mounted midway between its ends on pin 25 and the same side of support member 20 as the magnet and extends at right angles to its axis of rotation with the ends of the armature extending toward the opposite poles of the magnet. Movement of armature 27 controls a snap switch mechanism supported in the space between the armature 27 and the member 20. The switch mechanism includes a termminal contact 37 carried by support member 20 and a movable contact 36 carried by member 29 which is moved by means of a finger 46 carried by and extending from armature 27. Finger 46 engages member 29 through a link 43 and spring 45. The Cole construction differs from the relay of claim 5 in that the Cole armature is not balanced in the sense that the Somers armature is balanced, and Cole does not disclose the elements of clause (e) of claim 5, i.e., a spring contact member which is fixed at one end with respect to the supporting member and has its free end extending between and being biased toward one of a pair of terminals. 19. The Lazich patent 2,775,666 issued December 25,1956, on an application filed" }, { "docid": "11242805", "title": "", "text": "patent. It would not require invention, for one having the above-mentioned prior art before him, to modify the Struthers-Dunn #212 relay to eliminate the differences between it and the Somers relay. It is found that claim 5 of the Somers patent is anticipated by the prior art and is invalid. A further issue was presented regarding the interpretation of an ambiguous term in a claim. Claim 5 recites fingers “secured at opposite sides” of the armature. This term “sides” may be interpreted in several ways, each of which is consistent with the specification and drawings of the patent. In such a situation, it is proper to refer to the application file of the patent to determine what meaning should be given to the term. Goodyear Dental Vulcanite Co. v. Davis, 102 U.S. (12 Otto) 222 (1880); Mall Tool Co. v. Quaker Vibrators, Inc., 30 F. Supp. 841 (E.D. Pa. 1939), 43 U.S.P.Q. 506. As is pointed out in findings 35 and 36 below, a study of the application file indicates that the meaning intended by the patentee and the examiner for the term “sides” in claim 5 was sides as opposed to top, bottom, or ends. Hence, this is the meaning which must be imparted to the term in this suit. Another issue presented in this case is the breadth or scope to be accorded patent claim 5 even if it were found to be valid. Specifically, claim 5 requires that the relays have “fingers secured at opposite sides of the armature.” Plaintiff alleges that the exact location of the fingers is not the inventive feature of the claim, and hence the defendant should not be able to avoid infringement merely by placing the fingers on the top, bottom, or ends of the armature. The Somers patent, which is not for a pioneer type invention, is located in a crowded art. The claims have been restricted during prosecution to distinguish over the prior art disclosures cited by the examiner. In such a situation the claims must be narrowly construed, and the limitations and restrictions must be considered as necessary and" }, { "docid": "11242836", "title": "", "text": "was in accordance with the custom in the relay industry. All of the above acts with respect to the #212 relay occurred within the United States prior to July 1951. Later, when Struth-ers-Dunn received orders for the #212 relay, it started preparation for mass production in May 1952, and began relay production in early 1953. 25. Application of Somers patent claim 5 to the Struthers-Dunn #212 relay, defendant’s exhibit 61, is tabulated below with comments. Somers Claim 5 An electrical relay comprising (a)a supporting member, (b) a U-shaped electromagnet carried by said member, said magnet comprising a pair of spaced substantially parallel opposing poles having free end portions extending toward and fixedly secured at one face of said supporting member, (c) an armature rotatably mounted between the magnet poles on the same side of said supporting member as the magnet and extending at right angles to its axis of rotation with the ends of the armature extending toward the opposing magnet poles, *and said armature being substantially balanced about its axis, (d) a plurality of pairs of terminals carried by the supporting member in the space between it and the armature, (e) a plurality of spring contact members each of which is fixed at one end with respect to the supporting member and has its free end- extending between and being biased toward one of a pair of terminals, said contact members lying between the armature and the supporting member, (f)fingers secured at opposite sides of the armature and extending toward the supporting member, each of said fingers being adapted to engage one of said spring contact members to move the latter into engagement with the other of said pair of terminals when the armature is rotated, * * *. Struthers-Dunn #$12 relay (a) the square member upon which the active parts of the #212 relay are mounted, (b) the #212 relay has such an electromagnet fixedly secured to the supporting member (a), (c) the #212 relay has such a rotatable armature between the magnet poles and on the same side of member (a) as the magnet and extending at" }, { "docid": "11242827", "title": "", "text": "its axis of rotation with the ends of the armature extending toward the opposite poles of the magnet. Movement of armature 27 controls a snap switch mechanism supported in the space between the armature 27 and the member 20. The switch mechanism includes a termminal contact 37 carried by support member 20 and a movable contact 36 carried by member 29 which is moved by means of a finger 46 carried by and extending from armature 27. Finger 46 engages member 29 through a link 43 and spring 45. The Cole construction differs from the relay of claim 5 in that the Cole armature is not balanced in the sense that the Somers armature is balanced, and Cole does not disclose the elements of clause (e) of claim 5, i.e., a spring contact member which is fixed at one end with respect to the supporting member and has its free end extending between and being biased toward one of a pair of terminals. 19. The Lazich patent 2,775,666 issued December 25,1956, on an application filed April 19, 1951, and relates to a small, hermetically sealed relay capable of withstanding severe shocks and temperature changes. Referring to figs. 2, 3, and 4 reproduced herein, the Lazich relay includes a supporting member 39 at the top for a plurality of terminals 43' which carry contact springs 49. These springs 49 carry COLE PATENT 2 , 4 2 8 , 7 8 4 contacts 51 which, operate between stationary contacts 47. There is an inherent bias tending to hold the contacts 51 in the position shown in fig. 3. The Lazich magnet is a can type having a coil 17, four pole pieces 27, and core 5. A balanced armature 29 is rotatably mounted above and coaxial with core 5, which projects into a recess in armature 29 and acts as one pole of the magnet. The pole pieces 27 act as the other pole of the magnet. A spider 35 is secured to armature 29, and the upturned rim 41 of the spider 35 is notched at various points 42 to engage" }, { "docid": "11242822", "title": "", "text": "and 41 to pivot armature 34 clockwise about pivot pin 33, until the armature is in its normal fig. 4 position again. 14. The Somers patent contains six claims, of which only claim 5 is here in suit. Claim 5 is reproduced below in lettered clauses to facilitate understanding the combination of elements recited. An electrical relay comprising fa) a supporting member, (b) a U-shaped electromagnet carried by said member, said magnet comprising a pair of spaced substantially parallel opposing poles having free end portions extending toward and fixedly secured at one face of said supporting member, (c) an armature rotatably mounted between the magnet poles on the same side of said supporting member as the magnet and extending at right angles to its axis of rotation with the ends of the armature extending toward the opposing magnet poles, said armature being mounted in spaced relation to the supporting member, and on an axis substantially parallel to the magnet poles, *and said armature being substantially balanced about its axis, [*For convenience, this last phrase is transposed here from the end of the claim.] (d) a plurality of pairs of terminals carried by the supporting member in the space between it and the armature, (e) a plurality of spring contact members each of which is fixed at one end with respect to the supporting member and has its free end extending between and being biased toward one of a pair of terminals, said contact members lying between the armature and the supporting .member, (f) fingers secured at opposite sides of the armature and extending toward the supporting member, each of said fingers being adapted to engage one of said spring contact members to move the latter into engagement with the other of said pair of terminals when the armature is rotated, * * *. British patent 572,686 15. Referring to the application file of the Somers patent, the examiner cited six prior art disclosures. The most pertinent of these prior disclosures is British patent 572,686 for “Improvements in. and relating to Shock Resisting Relays and Switches.” As shown in figs. 1," }, { "docid": "11242830", "title": "", "text": "completed prior to Somers5 invention date of March 6, 1952. Referring to figs. 1, 2, 3, and 11, reproduced herein., the relay disclosed in the Hall patent includes a base plate 110 (illustrated in fig. 11) having mounting studs 116 attached thereto. The base plate 110 carries a header comprising a cylindrical shell 120, a plurality of terminals 122, and a molded vitreous seal 124. The Hall U-shaped magnet has cores 24 and 26 (illustrated in fig. 1) extending away from the base plate. Mounted on the bracket 50 (illustrated in fig. 2) are vertical plates 64 on which contact assemblies 62 are provided. Each contact assembly includes stationary contacts 68 and 70 and a movable contact 72 carried on an arm 74. The balanced armature 54 is pivotally mounted adjacent the ends of the cores 24 and 26 and carries a pair of arms 100 having fingers 106 at the ends thereof which engage the upper ends of movable contact arms 74. When mounted in the can 112, as shown in fig. 11, the Hall relay is confined against endwise movement due to engagement of the member 58 with the top wall of the can, and engagement of the bottom strap 46 with the studs 114 contacting the upper surface of the base plate 110. The Hall relay differs from the relay of claim 5 of the Somers patent in that'the free ends of the poles of the Hall magnet extend away from the support member rather than toward it. The support member, in the sense in which the term is used in the Somers patent, refers to the Hall base plate 110 which supports the relay structure. The Hall relay terminals and spring contact members do not lie in the space between the supporting member and the armature, nor do the fingers extend toward the supporting member. 21. The following additional patent and publication disclosures have been discussed in the presentation of this case, but their teachings are either cumulative of features shown HALL H At PATENT 2 , 7 6 7 , 2 8 0 in the" }, { "docid": "11242847", "title": "", "text": "claims 8-11, subsequently canceled, each described the fingers as “a member secured to the armature at each side of said axis of rotation.” This clause encompasses the first meaning set forth in the preceding finding. Application claims 12 and 14, also subsequently canceled, contained similar language to point out that “sides” refers to sides of the armature with respect to the axis of rotation. When the aforementioned application claims were canceled after the first Patent Office action, application claims 16-22 were added. Application claims 17 and 19-21 described the fingers as resilient members secured one at each side of the armature. This clause is not quite as clear as the previous one, since it could refer to either the first or second meaning, i.e., sides with respect to the axis of rotation, or sides as opposed to top, bottom, or ends. Application claim 22 described the fingers as “fingers projecting outward and then parallel to said armatures from opposite faces thereof with ends extending at substantially right angles to said parallel portions of said fingers but in the same plane with said parallel portions.” This recital was clear since it said “faces” rather than “sides”, and it definitely falls within the second meaning set forth aboye. After the next Patent Office action, application claims 23 and 24 were substituted for claims 19,21, and 22. Claim 23 ultimately became claim 5 of the issued patent. Claim 24, which ultimately became claim 6 of the issued patent, described the fingers as “fingers projecting outwardly from opposite sides of the armature and then substantially parallel to the sides of the armature toward said blades.” This clause encompasses the second meaning set forth above, i.e., sides as opposed to top, bottom, or ends. 36. The application file indicates that when the applicant desired to refer to the first meaning, i.e., the opposite sides of the armature with respect to the axis of rotation, he used a clause which clearly set this intention out as in application claims 8-12, and 14. After application claims 8-12 and 14 were canceled, the applicant never referred to the" }, { "docid": "11242802", "title": "", "text": "not patentable distinctions. Pennington v. National Supply Co., 95 F. 2d 291 (5th Cir. 1938), 37 U.S.P.Q. 18. There is a clear identity between the #212 relay and the principles of the Somers relay. The only differences between the #212 relay and the Somers relay are minor and such as would not amount to a patentable distinction. As will be discussed in more detail below, the #220 D.C. and A.C. relays actually anticipate one of the features of the Somers relay which is different from the #212 relay. Thus, even if this difference is treated as a patentable distinction, the #220 D.C. and A.C. relays negate its novelty. A separate issue has been presented regarding the allegation that even if the Struthers-Dunn #212, #220 D.C. and #220 A.C. relays are considered as proper members of the prior art, the distinctions between these relays and the Somers patent relay still amount to a patentable invention. As noted in finding 26 below, there are two differences between the #212 relay and the Somers relay, namely, (1) the #212 relay has only one set of switching mechanisms, whereas Somers claim 5 requires a plurality of duplicate sets of switching mechanisms; (2) the #212 relay has the armature on substantially the same level as the pair of terminals and the spring contact member, whereas Somers claim 5 recites terminals and spring contact members as being in the space between the armature and the support member. Eeferring to the first distinction, it has been held that duplication of a part from a known device in a subsequent device does not of itself make the subsequent device patentable. Alco Kar Kurb, Inc. v. Ager, 286 F. 2d 931 (3d Cir. 1961), 128 U.S.P.Q. 269; Bryan v. Garrett Oil Tools, Inc., 245 F. 2d 365 (5th Cir. 1957), 114 U.S.P.Q. 10; Lewis E. Hamel Co., Inc. v. P & K, Inc., 185 F. Supp. 278 (E.D. Ill. 1960), 126 U.S.P.Q. 103. This difference is clearly of the type which would be within the purview of one having ordinary skill in the art, and hence would fall within" }, { "docid": "11242838", "title": "", "text": "right angles to its axis of rotation and toward the opposing magnet poles, and the #212 armature has a finger at one side of the armature balanced by added solder on the opposite side of the armature, (d) the #212 relay includes a single pair of terminals carried by the member (a) and located between said member and the side of the armature, (e) the #212 relay includes a single spring contact member fixed at one end with respect to the member (a) and has its free end extending between and being biased toward one of the pair of fixed terminals, and the #212 spring contact member is located between the side of the armature and the supporting member (a), (f) the #212 relay includes a single finger secured to one side of the armature and extending toward the supporting member (a) and adapted to engage the single spring contact member to move into engagement with the other terminal of the single pair of fixed terminals when the armature is rotated. 28. Comparison of the #212 relay with claim 5 of the Somers patent shows that there are two minor differences. The #212 relay has only a single switch mechanism, comprising a single pair of terminals, one spring contact member and one operating finger. Somers claim 5 recites a plurality of duplicate sets of switching mechanisms. The #212 relay has its armature on approximately the same level as the pair of, terminals and the spring contact member. Somers claim 5 recites the pairs of terminals and the spring contact members, being in the space between the armature and the support member. The first difference does not amount to a patenta ble distinction or improvement since it would have been within the purview of one having ordinary skill in the relay art to add a duplicate set of switching mechanisms to the relay to enable the relay to control additional apparatus. Viewing this difference in another light, duplication of a part from a known device in a subsequent device does not of itself make the subsequent device patentable. Similarly, the second" }, { "docid": "11242839", "title": "", "text": "#212 relay with claim 5 of the Somers patent shows that there are two minor differences. The #212 relay has only a single switch mechanism, comprising a single pair of terminals, one spring contact member and one operating finger. Somers claim 5 recites a plurality of duplicate sets of switching mechanisms. The #212 relay has its armature on approximately the same level as the pair of, terminals and the spring contact member. Somers claim 5 recites the pairs of terminals and the spring contact members, being in the space between the armature and the support member. The first difference does not amount to a patenta ble distinction or improvement since it would have been within the purview of one having ordinary skill in the relay art to add a duplicate set of switching mechanisms to the relay to enable the relay to control additional apparatus. Viewing this difference in another light, duplication of a part from a known device in a subsequent device does not of itself make the subsequent device patentable. Similarly, the second difference also would not amount to a patentable distinction or improvement since it would be within the purview of one having ordinary skill in the relay art to raise the armature sufficiently to allow the pair of terminals and the spring contact member to be positioned more directly in the space between the armature and the support member. If it were desired to put more than one set of switching mechanisms on the relay, this would appear to be the most logical solution. This is especially true in view of the prior art as represented by the Cole patent, the Lazich patent, and both the A.C. and D.C. versions of the Struthers-Dunn #220 relay, which shows that it is old in the relay art to locate the terminals and spring contact members between the armature and the supporting member. The #212 relay provides terminals and a contact member between the side of the armature and the supporting base. 27. In late 1949 or early 1950, Struthers-Dunn was awarded a contract by the Air Force for" }, { "docid": "11242804", "title": "", "text": "the prohibition of 35 USC § 103, which reads in part as follows: A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Turning now to the second distinction, again it would be obvious to one having ordinary skill in the art to raise the armature sufficiently to allow the pairs of terminals and the spring contact member to lie in the space between the armature and the support member. The prior art actually suggests this arrangement when it is desired to place more than two sets of switching mechanisms on the relay. This arrangement is shown in the Struthers-Dunn #220 D.C. and A.C. relays, the Cole patent, and the Lazich patent. It would not require invention, for one having the above-mentioned prior art before him, to modify the Struthers-Dunn #212 relay to eliminate the differences between it and the Somers relay. It is found that claim 5 of the Somers patent is anticipated by the prior art and is invalid. A further issue was presented regarding the interpretation of an ambiguous term in a claim. Claim 5 recites fingers “secured at opposite sides” of the armature. This term “sides” may be interpreted in several ways, each of which is consistent with the specification and drawings of the patent. In such a situation, it is proper to refer to the application file of the patent to determine what meaning should be given to the term. Goodyear Dental Vulcanite Co. v. Davis, 102 U.S. (12 Otto) 222 (1880); Mall Tool Co. v. Quaker Vibrators, Inc., 30 F. Supp. 841 (E.D. Pa. 1939), 43 U.S.P.Q. 506. As is pointed out in findings 35 and 36 below, a study of the application file indicates that the meaning intended by" }, { "docid": "11242849", "title": "", "text": "location of the fingers in any manner which indicated that said first meaning was intended. The only subsequent claims which clearly indicate the meaning of the phrase used to describe the location of the fingers on the armature were application claims 22 and 24 which use the second meaning. Application claim 24, now claim 6 of the patent in suit, is the only-claim other than claim 23, now claim 5 of the patent in suit, to use the phrase “opposite sides.” Since the meaning of the phrase “opposite sides” in claim 24 is clear, it appears that the same meaning was intended in application claim 23, filed at the same time as claim 24. It is found that the term “sides” as used in patent claim 5 refers to sides or faeés of the armature, as opposed to top, bottom, or ends of the armature. 37. None of the following accused relays have fingers secured to opposite sides of the armature as required in clause (f) of claim 5, but rather each of these relays has its fingers secured to either the ends, top, or bottom of the armature: Amerelay Corporation_Model No. A3A2G.5 Amerelay Corporation_Model No. A4A26.5-4 ■Babcock Belay_Model No. BR8-600B1-26V Branson Corporation_Model No. ARB-2C-24A Struthers-Dunn_Model No. FC-6 Union Switch_Model No. CS26HP2H Western Electric_Model No. G-S57668 38. The following accused relays are found to contain each and every element and limitation of claim 5 of the Somers patent: Hi-G Corporation_Model No. HG-4S Hi-G Corporation_Model No. 2SM-353G-2 Hi-G Corporation_Model No. 4SL 39. Summarizing findings 31 through 38 above, the Hi-G, Inc. relays, Model Nos. HG-4S, 2SM-353G-2, and 4SL are found to infringe Somers patent claim 5, if it were valid, and each of the remaining accused relays is found not to infringe claim 5 of said patent. CONCLUSION OR LAW Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that claim 5 of United States Letters Patent No. 2,718,568 is invalid. Judgment is entered to that effect, and plaintiff’s petition is dismissed." }, { "docid": "11242807", "title": "", "text": "material. Connecticut Paper Products, Inc. v. New York Paper Co., 127 F. 2d 423 (4th Cir. 1942), 53 U.S.P.Q. 271. If a valid patent issued, contrary to the findings herein made, then it must be limited to the precise structure disclosed and claimed. Simmons Co. v. A. Brandwein & Co., 250 F. 2d 440 (7th Cir. 1957), 115 U.S.P.Q. 307. Somers claim 5, even if it were valid, must be restricted to covering only relays in which the fingers are secured at opposite sides of the armature. FINDINGS OF FACT 1. This is a patent suit under the provisions of 28 U.S.C. § 1498. Plaintiff seeks to recover reasonable and entire compensation for the unauthorized use and manufacture by and for the United States of rotary relays described in and covered by United States Letters Patent No. 2,718,568, granted to Connecticut Valley Enterprises, Inc., on September 20, 1955, based on an application by Brock A. Somers, filed August 19, 1952. 2. This suit was commenced on October 26,1957, with, the S. H. Couch Company, Inc., as co-plaintiff. On October 9, 1961, the court allowed defendant’s motion to dismiss the S. H. Couch Company as co-plaintiff. 3. Connecticut Valley Enterprises, Inc., hereinafter referred to as OVE, is a corporation organized and existing under the laws of the State of Connecticut, and has a place of business at the Biverside Trust Company Building, Essex, Connecticut, and, as assignee, has owned the Somers patent continuously since its issuance. 4. The parties agreed at pretrial to a separation of issues for trial, that the issues of validity of the patent and of infringement of the patent by the defendant be first determined upon full proofs, findings of fact, and argument of counsel, and that any accounting issue be deferred. 5. An electrical relay is a device for controlling a flow of electricity in response to some signal. In particular, an electromagnetic relay is an electrical relay which is controlled by the magnetizing effect of an electrical current. The principle of operation of all electromagnetic relays is virtually identical. Fundamentally, all electromagnetic relays comprise an" }, { "docid": "11242806", "title": "", "text": "the patentee and the examiner for the term “sides” in claim 5 was sides as opposed to top, bottom, or ends. Hence, this is the meaning which must be imparted to the term in this suit. Another issue presented in this case is the breadth or scope to be accorded patent claim 5 even if it were found to be valid. Specifically, claim 5 requires that the relays have “fingers secured at opposite sides of the armature.” Plaintiff alleges that the exact location of the fingers is not the inventive feature of the claim, and hence the defendant should not be able to avoid infringement merely by placing the fingers on the top, bottom, or ends of the armature. The Somers patent, which is not for a pioneer type invention, is located in a crowded art. The claims have been restricted during prosecution to distinguish over the prior art disclosures cited by the examiner. In such a situation the claims must be narrowly construed, and the limitations and restrictions must be considered as necessary and material. Connecticut Paper Products, Inc. v. New York Paper Co., 127 F. 2d 423 (4th Cir. 1942), 53 U.S.P.Q. 271. If a valid patent issued, contrary to the findings herein made, then it must be limited to the precise structure disclosed and claimed. Simmons Co. v. A. Brandwein & Co., 250 F. 2d 440 (7th Cir. 1957), 115 U.S.P.Q. 307. Somers claim 5, even if it were valid, must be restricted to covering only relays in which the fingers are secured at opposite sides of the armature. FINDINGS OF FACT 1. This is a patent suit under the provisions of 28 U.S.C. § 1498. Plaintiff seeks to recover reasonable and entire compensation for the unauthorized use and manufacture by and for the United States of rotary relays described in and covered by United States Letters Patent No. 2,718,568, granted to Connecticut Valley Enterprises, Inc., on September 20, 1955, based on an application by Brock A. Somers, filed August 19, 1952. 2. This suit was commenced on October 26,1957, with, the S. H. Couch Company, Inc.," }, { "docid": "11242848", "title": "", "text": "but in the same plane with said parallel portions.” This recital was clear since it said “faces” rather than “sides”, and it definitely falls within the second meaning set forth aboye. After the next Patent Office action, application claims 23 and 24 were substituted for claims 19,21, and 22. Claim 23 ultimately became claim 5 of the issued patent. Claim 24, which ultimately became claim 6 of the issued patent, described the fingers as “fingers projecting outwardly from opposite sides of the armature and then substantially parallel to the sides of the armature toward said blades.” This clause encompasses the second meaning set forth above, i.e., sides as opposed to top, bottom, or ends. 36. The application file indicates that when the applicant desired to refer to the first meaning, i.e., the opposite sides of the armature with respect to the axis of rotation, he used a clause which clearly set this intention out as in application claims 8-12, and 14. After application claims 8-12 and 14 were canceled, the applicant never referred to the location of the fingers in any manner which indicated that said first meaning was intended. The only subsequent claims which clearly indicate the meaning of the phrase used to describe the location of the fingers on the armature were application claims 22 and 24 which use the second meaning. Application claim 24, now claim 6 of the patent in suit, is the only-claim other than claim 23, now claim 5 of the patent in suit, to use the phrase “opposite sides.” Since the meaning of the phrase “opposite sides” in claim 24 is clear, it appears that the same meaning was intended in application claim 23, filed at the same time as claim 24. It is found that the term “sides” as used in patent claim 5 refers to sides or faeés of the armature, as opposed to top, bottom, or ends of the armature. 37. None of the following accused relays have fingers secured to opposite sides of the armature as required in clause (f) of claim 5, but rather each of these relays" } ]

[ { "docid": "22455294", "title": "", "text": "nonexertional limitations significantly limit the range of performable work, the Secretary may not rely only on the grids but must take the testimony of a vocational expert. Id. The instructions provide that, when the grids are “not fully applicable” because of the existence of nonexertional limitations, they nonetheless provide “a framework for consideration of how much the individual’s work capability is ... diminished ... by the nonexertional limitations.” 20 C.F.R. Part 404, Subpart P, App. 2 § 200.00(e)(2). See also Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir.1984). The AU must use the grids as a framework in cases where no vocational expert testifies. See Desrosiers, 846 F.2d at 577. However, no court has decided by a published opinion the question whether an AU must use the grids as a framework when a vocational expert does testify. Regulatory language supports the position that an AU may not find from vocational testimony that a claimant, deemed disabled under the grids, nonetheless could perform a substantial number of jobs and not be disabled. See 20 C.F.R. Part 404, Subpart P, App. 2, §§ 200.00(d), (e). We interpret the regulations to require the Secretary to reject vocational testimony that is inconsistent with the grids' overall framework. We agree that an AU need not agree with everything said by an expert witness to find that his testimony constitutes substantial evidence regarding disability. Russell v. Bowen, 856 F.2d 81 at 83 (9th Cir.1988). Some inconsistencies may lead one to question the witness’s expertise. If an expert testifies that a claimant would be disabled under the grid best approximating the totality of his exer-tional and nonexertional limitations, the Secretary must reject, or specify reasons for accepting, any significantly inconsistent testimony, such as that the claimant nonetheless could perform a substantial number of jobs. Jay Toews, a vocational expert, testified that several thousand jobs existed in the state that a person with Swenson’s impairments as described by Dr. Green (i.e., not taking into account evidence of fatigue and depression) could perform. They were routine, low-stress, and unskilled, and included stationary security guard, toll booth operator, ticket" } ]

[ { "docid": "23575571", "title": "", "text": "job. Further, we see no error in concluding that Smith possessed the manual dexterity to perform the Hall job. The ALJ found that Smith could do any sedentary work “which does not require strong gripping with the right hand.” This is not a finding that she lacks manual dexterity in that hand — it is rather a conclusion, directly supported by the clinical conclusions of the only physician who found significant impairments to Smith's hand (Dr. Lipton, JA 200-01), that she should not engage in strenuous exertions with that hand. The record thus amply supports the AU’s decision that Smith retained the ability to perform her past relevant work. Smith's third argument is that the Medical-Vocational Guidelines (the “Grid”) set forth at 20 C.F.R., pt. 404, subpt. P, app. 2, establishes a presumption that a person of her age, education, and work experience who is limited to sedentary work is disabled. This argument must be rejected as a matter of law. The regulation Smith cites, by its own terms, specifies that it is to be applied “where an individual with a severe medically determinable physical or mental impairment(s) is not engaging in substantial gainful activity and the individual’s impairment(s) prevents the performance of his or her vocationally relevant past work.” 20 C.F.R. pt. 404, subpt. B, App. 2, § 200.00(a). In Smith’s case, as we have held, the ALJ had substantial evidence for his conclusion that she could perform her past relevant work as an assembler. The Grid is therefore inapplicable to her case. Finally, Smith asserts that the ALJ improperly failed to find that she was disabled by alcoholism from 1979 to 1982 and thus improperly failed to grant her a “closed period” of benefits for that disability. We have held that, when a claimant has suffered a temporary disability that, if it had persisted, would entitle her to benefits, benefits for the “closed period” of total disability may be awarded. The Secretary may conduct all the relevant fact-finding in a single hearing. Myers v. Richardson, 471 F.2d 1265, 1267 (6th Cir.1972). In this case, however, Smith has failed" }, { "docid": "17857090", "title": "", "text": "internal guides and training sessions may not have been fully shared with the Bureau of Hearings and Appeals,” id. at 9291. Under the new regulations, the ALJ’s findings of fact in this ease are inadequate with respect to Vega’s education. The ALJ did not determine, as required under the circumstances, whether Vega was literate and whether she was able to communicate in English. See 20 C.F.R. §§ 404.-1507(f), 416.907(f) (1980). The circumstances are that appellant’s less than four years of formal education took place in Puerto Rico and that, although she has lived in this country some thirty years, the hearing had to be conducted with a Spanish-English interpreter. The only portion of the hearing that the transcript suggests may have taken place completely in English was the following: ALJ: Miss Vega, do you understand any English at all? MRS. VEGA: I understand something, yes. Not too much. ALJ: Like when you worked in the hotel, if somebody spoke to you in English, you could understand? MRS. VEGA: They asked (UNINTELLIGIBLE) hotel, wash the towels, watch the clothes, soap. ALJ: (UNINTELLIGIBLE) towels, yes. Okay. Fine. This brief exchange, of course, is not a substitute for a determination on the question of ability to communicate in English. And the fact that Vega apparently was able to communicate sufficiently to perform her hotel job does not necessarily mean that she can communicate well enough to suit the standard in the new rules. See 20 C.F.R. § 404.1507(f), 416.907(f) (1980). The absence of findings by the ALJ on the questions of literacy and ability to communicate in English is crucial in light of the findings the ALJ did make that she was capable only of sedentary work, that her work experience was apparently in unskilled jobs, as a factory worker and hotel maid, and that she was forty-five years old at the time of the hearing. If Vega is also illiterate or “unable to communicate in English,” then the new medical-vocational guidelines mandate a determination of disability, 20 C.F.R. 404 Subpart P, App. 2, Table 1 (Rule 201.17); 416 Subpart I, App. 2," }, { "docid": "17857091", "title": "", "text": "watch the clothes, soap. ALJ: (UNINTELLIGIBLE) towels, yes. Okay. Fine. This brief exchange, of course, is not a substitute for a determination on the question of ability to communicate in English. And the fact that Vega apparently was able to communicate sufficiently to perform her hotel job does not necessarily mean that she can communicate well enough to suit the standard in the new rules. See 20 C.F.R. § 404.1507(f), 416.907(f) (1980). The absence of findings by the ALJ on the questions of literacy and ability to communicate in English is crucial in light of the findings the ALJ did make that she was capable only of sedentary work, that her work experience was apparently in unskilled jobs, as a factory worker and hotel maid, and that she was forty-five years old at the time of the hearing. If Vega is also illiterate or “unable to communicate in English,” then the new medical-vocational guidelines mandate a determination of disability, 20 C.F.R. 404 Subpart P, App. 2, Table 1 (Rule 201.17); 416 Subpart I, App. 2, Table 1 (Rule 201.17) (1980). The Secretary, agreeing that the new regulations may be applicable to this case, argues unpersuasively that the ALJ’s decision comports with them. The Secretary points to the testimony of the vocational expert that “neither education nor language would bar plaintiff from performing the types of sedentary work she opined were readily available in the metropolitan area and within plaintiff’s capabilities,” Brief for Defendant-Appellee at 15. In emphasizing this testimony, the Secretary is really suggesting that particularized proof in this case of ability to perform other work can supplant and override the contrary dictates of the new regulations. But the Secretary cannot have it both ways. She cannot escape what may be the conclusive effect of the rules in this case while depending upon them to guide and control the discretion of the ALJs in other cases. Because we find that the disability determination is inadequate under the new rules, Vega’s claim must be remanded to the Department of Health and Human Services. We reject Vega’s other contentions, including her arguments" }, { "docid": "4249974", "title": "", "text": "environmental restrictions, the table rules provide a framework for consideration of how much the individual’s work capability is further diminished in terms of any types of jobs within these exertional ranges that would be contraindicated by the additional limitations or restrictions. SSR 85-15 (emphasis added). But Fast is not reading either 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 200.00(e)(2) or SSR 85-15 carefully enough. Both of them address the situation in which someone suffers from two kinds of impairments — exertional and non-exertional — and they describe how the two are to be handled together. Fast, in contrast, suffers solely from nonexertional limitations. In that situation, both 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 200.00(e) and SSR 85-15 state that the grids should be given “consideration” only. If a nonexertional limitation substantially limits a claimant’s ability to perform other work, reliance on the grids is improper. See Zurawski, 245 F.3d at 889 (citing Luna v. Shalala, 22 F.3d 687, 691 (7th Cir.1994)); Lee v. Sullivan, 988 F.2d 789, 793 (7th Cir.1993) (citing Warmoth v. Bowen, 798 F.2d 1109, 1112-13 (7th Cir.1986) (per curiam)). As the district court pointed out, the ALJ properly considered whether Fast could perform other work, because he “made specific reference to Grid Rule 204.00; [and he] recognized the Grid was not controlling and sought another vocational source” in the form of VE testimony. Next, Fast contends that Stvenson v. Sullivan, 876 F.2d 683 (9th Cir.1989), supports her “framework” approach. In Swenson the Ninth Circuit reversed a finding by an ALJ that a claimant with a combination of exertional and nonexertional disabilities was not disabled, even though he was deemed disabled under the grids based on his exertional impairments alone. Id. at 689. The court “require[d] the Secretary to reject vocational testimony that is inconsistent with the grids’ overall framework.” Id. at 688. Fast argues that her case is analogous because the ALJ disregarded the grids and relied on VE testimony alone. Once again, however, Fast is overlooking a critical distinction. In Swenson, the claimant’s exertional limitations alone supported a finding of disability" }, { "docid": "12799039", "title": "", "text": "of correct fact-finding by the ad ministrative law judge, however. See Bazile, 113 F.Supp.2d at 188 n. 3 (citing United States v. Forness, 125 F.2d 928 [2d Cir.1942]). In Forness, the Second Circuit described the “grave importance of fact-finding”: The correct finding, as near as may be, of the facts of a law suit is fully as important as the application of the correct legal rules to the facts as found. An impeccably 'right' legal rule applied to the 'wrong' facts yields a decision which is as faulty as one which results from the application of the 'wrong' legal rule to the 'right' facts. Forness, 125 F.2d at 942. . It is worth noting that the record of the effects of medication was similarly underdeveloped in Bazik, and that in both Bazik and the instant case a great deal of the confusion in the record appears to stem from a language barrier. See Bazik, 113 F.Supp.2d at 190 (\"It is clear from the transcript that Ba-zile, perhaps because of a language barrier, frequently was confused about the questions •asked by her attorney and the administrative law judge.”). In the interest of providing a clear record for review, greater use of interpreters should be made. Although Musto was provided with an interpreter, he appears to have been discouraged from relying on her: ATTY: Your Honor, do you think that an interpreter would be helpful with some of this testimony? I— ALJ: That’s up to you. He seems to be responding. ATTY: You seem to, yeah. I wasn’t sure whether, parts of the sentences might be unclear. ALJ: Well we’ll, we’ll ask Mr. Musto. You, you have no problem understanding me? CLMT: Well some, you know, what I don’t understand— ALJ: Yeah, you’ve asked her three times— CLMT: Yeah. ALJ: — during the course of this hearing. But other than that— ATTY: And— ALJ: — he seems to be responding— ATTY: — Mr. Musto’s responses— ALJ: — to your, to you as well. ATTY: Yeah. ALJ: Only three times did he need assistance. R. at 54. . Although the questioning by the" }, { "docid": "22064081", "title": "", "text": "1994, that she saw a psychiatrist in 1994, that she had been seeing. Dr. Shaeffer regularly between 1994 and 1996, and that she began going to the stress clinic sometime in 1995. The only other support the ALJ offers for his credibility finding is his statement that the “record in general indicates improvement since January 1996.” However, general findings are an insufficient basis to support an adverse credibility determination. See Reddick, 157 F.3d at 722 (citing Lester, 81 F.3d at 834). Because the ALJ’s credibility finding is not supported by substantial evidence, we conclude that the ALJ’s credibility determination was erroneous. C. Use of the “Grids” The government argues that, at step five of Holohan’s disability determination, the ALJ was correct to rely on the Medical-Vocational Guidelines (the “grids”) to determine whether there was work that Holohan could perform despite her impairments. If the grids accurately and completely describe a claimant’s impairments, an ALJ may apply the grids instead of taking testimony from a vocational expert. Reddick, 157 F.3d at 729. If they do not, then the ALJ must also hear testimony from a vocational expert. Id. The grids are based only on strength factors. Id. & n. 11 (citing 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 200.00(e)). Thus they are sufficient only when a claimant suffers only from exertional limitations. Id.; see 20 C.F.R. Pt. 404, Subpt. P, App. 2 §§ 200.00(b), (e). The functional limitations caused by anxiety, depression, concentration, and memory impairments are nonexertional limitations. 20 C.F.R. § 404.1569a(c)(i)-(iii). These are the soils of impairments at issue in Holohan’s case. Indeed, the ALJ found that Holohan had no severe physical impairments and that her only severe impairments were psychiatric. By relying entirely on the grids to determine that there was work that Holohan was capable of performing with her limitations, the ALJ committed clear legal error. D. Procedural Due Process Claims The Supreme Court has held that applicants for social security disability benefits are entitled to due process in the determination of their claims. See Richardson v. Perales, 402 U.S. 389, 398, 401-02, 91 S.Ct." }, { "docid": "22970703", "title": "", "text": "effect of claimant’s personality disorder). Although the ALJ found that Tennant has a personality disorder, and noted that “[a]n inadequate personality may be disabling,” he concluded that Tennant is not disabled within the meaning of the Social Security Act. The ALJ reached this conclusion on the basis of the Medical-Vocational Guidelines set out in Appendix 2 to Subpart P of Part 404 of the Secretary’s regulations. The ALJ made the requisite underlying factual findings: that Tennant is a “younger individual” with “limited education,” whose previous work experience was “unskilled,” and that he has the physical capacity to perform light work. The ALJ stated that based on these findings, the medical-vocational “grid,” specifically Rule 202.17, “directs a conclusion [that claimant] * * * be found ‘not disabled.’ ” The ALJ found that the result would be the same whether the claimant’s exertional limitations alone or his exertional and nonexertional limitations in combination were considered. The ALJ erred in relying on the Medical-Vocational Guidelines to reach his determination that Tennant is not disabled. His first finding — that Tennant’s physical ability to perform light work renders him “not disabled” under the grid — is irrelevant as Tennant’s exertional abilities were not seriously at issue. The ALJ’s alternative finding — that Tennant’s exertional and nonexertional limitations considered together lead to the same result under the grid — also misses the mark. There is no question that Tennant’s primary impairment, and the one on which he has at all times based his claim, is his personality disorder — a nonexertional impairment. See McCoy v. Schweiker, 683 F.2d 1138, at 1148 (8th Cir. 1982). The introduction to the Medical-Vocational Guidelines states that “[t]he rules do not direct factual conclusions of disabled or not disabled for individuals with solely nonexertional types of impairments.” 20 C.F.R. Part 404, Subpart P, Appendix 2, § 200.00(e)(1). The grid may be used as a “framework” for determining claims based on a combination of strength and nonexertional limitations. See id. at § 200.00(e)(2). In a case such as this, however, where the evidence of exertional limitations is extremely limited, and the" }, { "docid": "16988169", "title": "", "text": "least temporarily, effective, but told the physical therapist that it had not helped. Testing showed a pain exaggeration profile. These factors show that the claimant’s allegations of symtoms, which preclude the performance of the full range of sedentary work, are not credible. On a record replete with medical evidence contrary to Russell’s testimony about pain, we must accept the AU’s credibility determination. See Carlock v. Sullivan, 902 F.2d 1341, 1343 (8th Cir.1990). Having rejected Russell’s subjective testimony that pain prevents him from engaging in the full range of sedentary work, the ALJ properly determined whether the Secretary had met his burden by use of the “grid,” the Medical-Vocational Guidelines contained in the regulations, without vocational expert testimony. See Hutsell v. Sullivan, 892 F.2d 747 (8th Cir.1989). Considering Russell’s age, education, work experience, and capacity for a full range of sedentary work, the ALJ concluded that Rule 201.21 of the Guidelines directs a finding that he is not disabled. 20 C.F.R. Part 404, Subpt. P, App. 2, Rule 201.21. The record supports this application of the grid. Accordingly, we must affirm. . The HONORABLE STEPHEN N. LIMBAUGH, United States District Judge for the Eastern District of Missouri. Judge Limbaugh’s order adopts the Report and Recommendations of The Hon. David D. Noce, United States Magistrate Judge for the Eastern District of Missouri. . Though there are some different threshhold eligibility requirements for disability and SSI benefits, the analysis for determining disability is identical under both programs. See 20 C.F.R. §§ 404.1520 (disability) and 416.920 (SSI). HEANEY, Senior Circuit Judge, dissenting. I respectfully dissent. Substantial evidence in the record belies the ALJ’s conclusion that Russell’s mental impairment has no effect on his ability to perform the full range of sedentary work. The ALJ conceded that Russell suffers from depression, but nonetheless used the “grid” to satisfy the Secretary’s burden of demonstrating the existence of jobs in the national economy which Russell could perform. When a nonexertional impairment such as depression exists, the grid may be used only “if the ALJ finds, and the record supports the finding, that the nonexertional impairment does not" }, { "docid": "22614286", "title": "", "text": "concentration or caused dizziness. The only evidence regarding these symptoms is Ms. Thomas’ own statements to her doctor and her testimony at the hearing. While Ms. Thomas’ testimony cannot be rejected solely because the objective medical evidence does not support the severity of her impairment, the ALJ properly rejected her testimony by using “ordinary techniques of credibility evaluation” and providing a specific, clear and convincing reason, supported by the record, that her testimony was generally not credible. Bunnell, 947 F.2d at 346; see also Light, 119 F.3d at 792 (upholding ALJ’s finding that a claimant generally lacks credibility as a permissible basis for rejecting claimant’s testimony). For example, the ALJ relied on Ms. Thomas’ demeanor at the hearing and found that “she seemed to engage in considerable histrionic exaggeration.” Use of the Medical Vocational Guidelines Finally, Ms. Thomas asserts that the ALJ failed to apply the medical vocational guidelines (the “Grids”) properly. The Grids are used to determine whether substantial gainful work exists for the claimant with respect to substantially uniform levels of impairment. See Moore v. Apfel, 216 F.3d 864, 869 (9th Cir.2000). When they do not adequately take into account claimant’s abilities and limitations, the Grids are to be used only as a framework, and a vocational expert must be consulted.. Id. at 869-70. Ms. Thomas correctly notes that, if she were limited to sedentary work, she would be deemed disabled under the Grids. See 20 C.F.R. pt. 404, subpt. P, app. 2, § 201.12. Ms. Thomas also correctly notes that, if she were able to perform a full range of light work, she would not be considered disabled under the Grids. See 20 C.F.R. pt. 404, subpt. P, app. 2, § 202.13. Ms. Thomas asserts that, because the ALJ found that she “could perform less [than] a full range of light work,” he erred by not addressing how severely the number of light jobs were reduced due to Ms. Thomas’ limitations. In Moore, however, we held that when a claimant’s exertional limitation falls between two grid rules, the ALJ fulfills his obligation to determine the claimant’s occupational" }, { "docid": "23132812", "title": "", "text": "such a case: [A]n individual’s ability to engage in substantial gainful work where his or her residual functional capacity falls between the ranges of work indicated in the rules (e.g., the individual who can perform more than light but less than medium work) is decided on the basis of the principles and definitions in the regulations, giving consideration to the rules for specific case situations in this Appendix 2. 20 C.F.R. Pt. 404, Subpt. P, App.' 2 § 200.00(d) (emphasis added). Thus, Appendix 2 clearly envisions cases like Haynes’s, in which the claimant has a “hybrid” RFC, and does not mandate the use of the grids in such cases. Indeed, if Haynes’s interpretation were correct, the quoted language would make no sense, and Appendix 2 would simply direct the ALJ (as Haynes would have it) to shoehorn the claimant into the minimum full range of work that the claimant can perform and apply the appropriate rule in the grids. Instead, the grids and relevant policy statements speak in terms of maximum sustained work capability, so it would flout the purpose of the grids to stop short at the minimum full range of work that a claimant can perform and make a disability determination on that basis. The regulations and relevant caselaw amply provide for situations in which claimants fall between exertional levels, as Haynes does here. In such cases, the ALJ must give consideration to the grids or use them as a framework. See SSR 83-10, 1983 WL 31251, at *1. In addition, consultation with a vocational expert may be helpful or even required. See SSR 83-12, 1983 WL 31253, at *2; see also Books v. Chater, 91 F.3d 972, 980-81 (7th Cir.1996) (where the claimant could perform the full range of light work tasks subject to certain sitting and standing restrictions, it was appropriate for the ALJ to procure testimony from a vocational expert and find the claimant not disabled). Haynes’s RFC not only does not precisely coincide with a particular full range of work, it also reflects impairments resulting in both exertional and nonexertional limitations. The grids, however," }, { "docid": "23489510", "title": "", "text": "also argues the ALJ erred by using the Medical-Vocational Guidelines (the “Grids”), instead of the testimony of a vocational expert, to determine whether there was substantial gainful employment McDade could perform. At McDade’s hearing, the ALJ only asked the vocational expert to characterize McDade’s past relevant work. The ALJ later applied the Grids to determine whether McDade was disabled. McDade argues that because he suffers from a nonexertional impairment, pain, the ALJ was required to elicit testimony from the vocational expert regarding the existence of jobs for a person with McDade’s impairments. See Baker v. Barnhart, 457 F.3d 882, 894 (8th Cir.2006) (“Generally, where the claimant suffers from a nonexertional impairment such as pain, the ALJ must obtain the opinion of a vocational expert instead of relying on the Medical-Yocational Guidelines.”). We disagree. Although McDade is generally correct, Baker goes on to state that “when a claimant’s subjective complaints of pain are explicitly discredited for legally sufficient reasons articulated by the ALJ, the Secretary’s burden at the fifth step may be met by use of the [Grids].” Id. at 894-95 (internal quotation and alteration omitted). Here, as discussed in detail above, the ALJ discredited McDade’s allegations of completely disabling pain for legally sufficient reasons, including his not unduly restricted daily activities, the absence of long-term narcotic pain medication, and inconsistencies with other aspects of his medical record. Therefore, we conclude the ALJ properly resorted to the Grids at Step 5. See Ellis v. Barnhart, 392 F.3d 988, 996 (8th Cir.2005) (allowing reliance on the Grids where ALJ properly discredited claimant’s complaints of pain and found claimant could perform full range of sedentary activity). D. Lastly, McDade argues the ALJ failed to properly apply the Adult Listing of Impairments. See 20 C.F.R. pt. 404, subpt. P, app. 1. Specifically, McDade argues his condition meets Listing 1.04 (Disorders of the Spine), and thus he should have been found disabled at Step 3. The ALJ found no evidence that McDade satisfied the criteria for Listing 1.04 or any other listing. See Admin. R. 19. The Government argues McDade waived this argument by failing" }, { "docid": "4938342", "title": "", "text": "is dispositive on the issue of disability. Crean, 1992 WL 183421, at *4. Exclusive reliance on the Grid, however, is inappropriate where the medical-vocational guidelines fail to accurately describe a claimant’s particular limitations. See 20 C.F.R. Part 404, Subpart P, App. 2, § 200.00(e); Crean, 1992 WL 183421, at *4. Where there are discrepancies between the claimant’s profile and the Grid factors, all relevant facts are to be considered in light of the vocational considerations outlined in 20 C.F.R. §§ 404.1560-404.1569a; see Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir.1986). For example, sole reliance on the Grid may be pre-eluded where the claimant’s exertional impairments are compounded by significant nonexertional impairments that limit the range of sedentary work that the claimant can perform. See 20 C.F.R. Part 404, Subpart P, App. 2, §§ 200.00(e)(2), 201.00(h); see also Bapp, 802 F.2d at 605; Crean, 1992 WL 183421, at *4-*5. This is also the case where there is not substantial evidence that a claimant can perform a full exertional range of work. See Nelson v. Bowen, 882 F.2d 45, 49 (2d Cir.1989) (individual assessment required where there is insufficient proof that a claimant can perform a full range sedentary work). B. In the present case, the ALJ undertook the five step inquiry. First, the ALJ found that Zorilla had not engaged in substantial gainful activity since April 21, 1993. (R. at 13.) Second, the ALJ found that Zorilla was severely impaired, citing both her status post thyroidectomy with associated “hypothyroidism and hyproparathyroidism” and “adjustment reaction with depression and personality disorder.” (Id.) Third, the ALJ found that Zorilla’s impairments were not listed in the regulations. (Id.); see 20 C.F.R. Part 404, Subpart P, App. 1., ¶¶ 12.00-09. With respect to whether Zorilla retained a residual functional capacity to perform her past work, the ALJ made no findings because Zorilla had never been employed. See Vega v. Sullivan, No. 88 Civ. 4182, 1989 WL 99774, at *3 (S.D.N.Y. Aug. 24, 1989) (“The [fourth] step — whether a claimant can perform past relevant work— was inapplicable, since Vega had no prior work experience.”); Marzec" }, { "docid": "23118534", "title": "", "text": "to me (INAUDIBLE). Q Okay. So your limits start getting shorter and shorter— CLMT: Yes. That’s what I was trying to say. Q Okay. Do you think that you could stand and walk for a total of six hours in a day during an eight hour work period? A No. Q How about two hours? CLMT: With standing? That I could stand and walk? ATTY: Yeah. BY CLAIMANT: A When it came, yes. I could two hours. The VE then testified as follows: Q Okay, Ms. Hetrick, I’d like you to assume that the individual would have to, to be required to take unscheduled breaks as a result of — well, whatever the result or the cause of it may be, but would have to take the unscheduled breaks as Mr. Moisa has testified to. He needs to lay down during the day as a result of his condition. Would that affect the ability on any of the jobs that we have previously discussed, past or— let’s start with the past relevant jobs. Would they affect the ability to perform those jobs? ATTY: His testimony is that — the way I have it down is that he can stand and walk for 20 to 30 to 40 minutes depending on the type of situation. Sit for a half an hour. Lay down. Could resume some activity, but it would be a reduced capacity in some. VE: Right. ATTY: If he goes back to standing or walking or sitting, it would be reduced. And then it would be continually reduced throughout the day. If that were his, his physical capacity, would that have an impact on the ability to do the jobs that he had previously done? BY VOCATIONAL EXPERT: A Yes. Based on the testimony today, I think that would preclude those jobs. I think that would preclude all employment. Given Moisa’s pain testimony, which the ALJ was not entitled to reject, and this unchallenged testimony of the VE, which the ALJ ignored, the ALJ’s finding that Moisa’s impairments do not prevent him from performing his past relevant work is" }, { "docid": "4249971", "title": "", "text": "Social Security rules and regulations, as well as a case from the Ninth Circuit, call for this approach. Fast believes that such a comparison in her case would lead to a finding of disability because the number of jobs that the VE said that she could perform (16,000 jobs) is fewer than the number of jobs available to a person whom the grids regard as disabled (17,895 jobs). ■ This court reviews the ALJ’s legal conclusions de novo. See Old Ben Coal Co. v. Dir., Office of Workers’ Compensation Programs, 292 F.3d 533, 538 (7th Cir.2002). At step five of the sequential analysis, an ALJ must determine (taking into account the step four finding that the claimant can no longer perform her past work) whether the person can do any other work that exists in the national or regional economy. See 20 C.F.R. § 404.1520(a)(4)(v), (e); 20 C.F.R. § 416.920(a)(4)(v), (e). To this end, the ALJ may use the grids to determine whether other jobs exist in the national or regional economy that a claimant can perform. The grids, however, generally take account only of exertional impairments. Exertional impairments are those that affect the claimant’s “ability to meet the strength demands of jobs (sitting, standing, walking, lifting, carrying, pushing, and pulling).” 20 C.F.R. § 404.1569a(b). Non-exertional impairments — such as depression, anxiety, difficulty concentrating or remembering — are defined as all other impairments that do not affect a claimant’s ability to meet the strength demands of jobs. 20 C.F.R. § 404.1569a(c)(1). Where a nonexertional - limitation might substantially reduce the range of work an individual can perform, use of the grids is inappropriate and the ALJ must consult a VE. Zurawski v. Halter, 245 F.3d 881, 889 (7th Cir.2001) (citing Luna v. Shalala, 22 F.3d 687, 691 (7th Cir.1994)). Fast acknowledges that the grids do not apply directly, but she urges that they should nonetheless have been used as a framework for decision. She contends that 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 200.00(e) and its corresponding policy statement, SSR 85-15, support her theory because both discuss the" }, { "docid": "22140367", "title": "", "text": "some circulatory problems.” Nevertheless, he concluded that Dumas retained “a residual functional capacity to perform work related functions except work involving prolonged standing or walking, and prolonged exposure to cold weather.” He found that while Dumas was unable to return to his former position with the Town of Brasher Falls, his impairments were not so severe that he was incapable of at least light work. In addition, Dumas had acquired skills from his past employment that the ALJ found could be transferred to other semi-skilled jobs. The ALJ expressly discounted Dumas’ complaints of pain as “not to be of sufficient credibility to support a finding of disability by themselves or in combination with other conditions.” The ALJ then turned to what is commonly known as the “Grid,” a set of medical-vocational guidelines keyed to physical capacity to work. See 20 C.F.R. Part 404, Subpart P, App. 2 (1979). On the facts as found by the ALJ, the Grid mandated a finding of not disabled. After the Appeals Council affirmed the ALJ’s Recommended Decision, Dumas sought review in the district court. Because the medical-vocational guidelines that comprise the Grid did not become effective until February 1979, more than two years after Dumas sought disability benefits, the district court was concerned that the ALJ’s retroactive application of the Grid might have been detrimental to Dumas. Prior to the Grid, the Secretary relied on the testimony of a vocational expert to determine whether a claimant who had been deemed unable to perform his past employment nevertheless retained the physical and vocational capabilities to perform other types of work. Accordingly, the district court remanded the case for a de novo hearing so that the Secretary could determine whether Dumas would have been disabled under the procedures in use prior to the Grid. A vocational expert was summoned to testify on remand. After reviewing all of the exhibits in the case, he testified that the skills Dumas had acquired in his past occupations were transferable to the job of time clerk. He further testified that there were 150 such jobs in the region in which" }, { "docid": "23132813", "title": "", "text": "it would flout the purpose of the grids to stop short at the minimum full range of work that a claimant can perform and make a disability determination on that basis. The regulations and relevant caselaw amply provide for situations in which claimants fall between exertional levels, as Haynes does here. In such cases, the ALJ must give consideration to the grids or use them as a framework. See SSR 83-10, 1983 WL 31251, at *1. In addition, consultation with a vocational expert may be helpful or even required. See SSR 83-12, 1983 WL 31253, at *2; see also Books v. Chater, 91 F.3d 972, 980-81 (7th Cir.1996) (where the claimant could perform the full range of light work tasks subject to certain sitting and standing restrictions, it was appropriate for the ALJ to procure testimony from a vocational expert and find the claimant not disabled). Haynes’s RFC not only does not precisely coincide with a particular full range of work, it also reflects impairments resulting in both exertional and nonexertional limitations. The grids, however, are designed for cases in which claimants are restricted entirely or mostly from exer-tional or strength limitations. 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 200.00(e); see also Fast, 397 F.3d at 471. Such limitations are those that affect a claimant’s “ability to meet the strength demands of jobs (sitting, standing, walking, lifting, carrying, pushing and pulling)[.]” 20 C.F.R. § 404.1569a(b). Nonexertional limitations, on the other hand, relate to such restrictions as climbing, balancing, stooping, kneeling, crouching, or work environment, among others. 20 C.F.R. § 404.1569a(e). When determining Haynes’s RFC, the ALJ noted a number of physical limitations regarding lifting and standing restrictions. He also found a sizable number of nonexertional limitations, such as climbing, balancing, crawling, kneeling, and exposure to heights, moving machinery, temperature extremes, humidity, fumes, and dust. Therefore, Haynes’s RFC indicated a combination of impairments resulting in both exertional and nonexertional restrictions. Appendix 2 and the relevant policy statements specify that in such eases, the ALJ must first determine whether the claimant may be found disabled based solely on strength limitations" }, { "docid": "4938341", "title": "", "text": "an ALJ is not sufficient evidence of the claimant's work capacity; an explanation of the claimant’s functional capacity from a doctor is required. Rivera-Torres v. Secretary of Health & Human Servs., 837 F.2d 4, 6-7 (1st Cir.1988). As explicitly stated in the regulations, residual functional capacity (“RFC”) is a medical assessment, and therefore, the ALJ is precluded from making his assessment without some expert medical testimony or other medical evidence to support his decision. See 20 C.F.R. § 404.1513(c), (d)(3). In meeting her burden of proof on the fifth step of the sequential evaluation process described above, the Commissioner, under appropriate circumstances, may rely on the medical-vocational guidelines contained in 20 C.F.R. Part 404, Subpart P, App. 2, commonly referred to as “the Grid”. The Grid takes into account the claimant’s residual functional capacity in conjunction with the claimant’s age, education and work experience. Based on these factors, the Grid indicates whether the claimant can engage in any other substantial gainful work which exists in the national economy. Generally the result listed in the Grid is dispositive on the issue of disability. Crean, 1992 WL 183421, at *4. Exclusive reliance on the Grid, however, is inappropriate where the medical-vocational guidelines fail to accurately describe a claimant’s particular limitations. See 20 C.F.R. Part 404, Subpart P, App. 2, § 200.00(e); Crean, 1992 WL 183421, at *4. Where there are discrepancies between the claimant’s profile and the Grid factors, all relevant facts are to be considered in light of the vocational considerations outlined in 20 C.F.R. §§ 404.1560-404.1569a; see Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir.1986). For example, sole reliance on the Grid may be pre-eluded where the claimant’s exertional impairments are compounded by significant nonexertional impairments that limit the range of sedentary work that the claimant can perform. See 20 C.F.R. Part 404, Subpart P, App. 2, §§ 200.00(e)(2), 201.00(h); see also Bapp, 802 F.2d at 605; Crean, 1992 WL 183421, at *4-*5. This is also the case where there is not substantial evidence that a claimant can perform a full exertional range of work. See Nelson v. Bowen," }, { "docid": "367032", "title": "", "text": "nonexertional limitations rendered him disabled. Reviewing the record as a whole, we cannot say that this determination was unsupported by substantial evidence. III. The Use of Appendix 2 Medical-Vocational Guidelines. The Secretary has developed a series of tables known as “grids” for use in determining disability. See 20 C.F.R. Pt. 404, Subpt. P, App. 2 (1985). The grids take account of various vocational factors, such as age, education and work experience, and the claimant’s residual functional capacity. Id. at § 200.00(a). Razey contends that because he claims nonexertional limitations, the Secretary should not have applied the grids in his case. He argues that a vocational expert witness was required for the Secretary to meet her burden of showing disability. The regulations do not, however, preclude the use of the grids when a nonexertional limitation is alleged. They explicitly provide for the evaluation of claimants asserting both ex-ertional and nonexertional limitations. Id. at § 200.00(e). The Appeals Council found that the claimed nonexertional limitations did not so affect Razey’s residual capacity that the use of the grids was inappropriate. Both the Secretary’s regulation and our decision in Odle v. Heckler, 707 F.2d 439, 440 (9th Cir.1983), allow the use of the grids under these circumstances. IV. The Credibility Issue. Lastly, Razey contends that the Appeals Council rejected the AU’s finding that he was a credible witness without explicitly stating its reasons for doing so. He argues that Beavers v. Secretary of Health, Education and Welfare, 577 F.2d 383 (6th Cir.1978), required the Council to explain its rejection of an ALJ’s credibility finding. This circuit recently adopted the Beavers rule. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir.1986). We find, however, that because the Council did not even implicitly reject the ALJ’s credibility finding, it did not violate the Beavers requirement. The Council reversed the ALJ’s decision because it interpreted the evidence differently, not because it disbelieved Razey’s testimony. It found that given the type of psychiatric impairment alleged, and the testimony regarding Razey’s daily activities, he was capable of performing sedentary work. This finding does not necessarily call Razey’s" }, { "docid": "23642666", "title": "", "text": "other mental impairment imposing additional and significant work-related limitation or function.” 20 C.F.R. § 404, Subpt. P, App. 1, § 12.05C. We have held that where a claimant’s IQ score does not fall within the range given in 12.05C, but is slightly above that range, the ALJ’s determination that the claimant is not mentally retarded is supported by substantial evidence. Cockerham v. Sullivan, 895 F.2d 492, 496 (8th Cir.1990). Thus, we must reject Howard’s argument. VI Finally, Howard contends that the ALJ incorrectly determined that the medical-vocational guidelines supported a finding of “not disabled.” At step 5, in making a final determination as to disability, an ALJ first looks to the Tables or “grids” set forth in Appendix 2 to Subpart P. However, pursuant to the regulations, where an individual has an impairment or combination of impairments resulting in both strength limitations and nonex-ertional limitations, the rules in this sub-part are considered in determining first whether a finding of disabled may be possible based on the strength limitations alone and, if not, the rule(s) reflecting the individual’s maximum residual strength capabilities, age, education, and work experience provide a framework for consideration of how much the individual’s work capability is further diminished in terms of any types of jobs that would be contraindicated by the nonex-ertional limitations. 20 C.F.R. § 404, Subpt. P, App. 2, § 2.00(e)(2). In Howard’s case, the ALJ determined that “the medical-vocational guidelines set out in 20 C.F.R. 404, Subpt. P, App. 2, specifically Rules 202.10 and 202.17, provide a framework for a finding of not disabled.” ALJ’s Decision 15. By including in the RFC the qualification that Howard is only capable of performing simple, routine, repetitive tasks, the ALJ properly accounted for her borderline intellectual functioning, a nonexertional impairment. See Lucy v. Chater, 113 F.3d 905, 908 (8th Cir.1997) (“We have previously concluded that borderline intellectual functioning, if supported by the record as it is here, is a significant nonexertional impairment”). Howard argues that the ALJ considered the wrong guidelines because he looked to the “grid” applicable to those capable of performing “light work.” Howard contests" }, { "docid": "12799040", "title": "", "text": "about the questions •asked by her attorney and the administrative law judge.”). In the interest of providing a clear record for review, greater use of interpreters should be made. Although Musto was provided with an interpreter, he appears to have been discouraged from relying on her: ATTY: Your Honor, do you think that an interpreter would be helpful with some of this testimony? I— ALJ: That’s up to you. He seems to be responding. ATTY: You seem to, yeah. I wasn’t sure whether, parts of the sentences might be unclear. ALJ: Well we’ll, we’ll ask Mr. Musto. You, you have no problem understanding me? CLMT: Well some, you know, what I don’t understand— ALJ: Yeah, you’ve asked her three times— CLMT: Yeah. ALJ: — during the course of this hearing. But other than that— ATTY: And— ALJ: — he seems to be responding— ATTY: — Mr. Musto’s responses— ALJ: — to your, to you as well. ATTY: Yeah. ALJ: Only three times did he need assistance. R. at 54. . Although the questioning by the administrative law judge about the remaining Avery factors was exceedingly brief, he appears to have developed the record sufficiently with respect to five of the six Avery factors: (1) duration and frequency of Musto's pain, R. at 29, 38, 40-41; (2) precipitating and aggravating factors, id. at 39-41, 52; (4) treatments other than medication for relief of pain, id. at 32-33, 44-45; (5) functional restrictions, id. at 34-38, 41-42; and (6) daily living activities, see discussion supra. . For the propriety of citing and relying on unpublished opinions, see Anastasoff v. United States, 223 F.3d 898, 899-905 (8th Cir.) (R. Arnold, J.) (holding that unpublished opinions have precedential effect); vacated as moot, 235 F.3d 1054 (8th Cir.2000); Giese v. Pierce Chem. Co., 43 F.Supp.2d 98, 103 (D.Mass.1999); Richard S. Arnold, Unpublished Opinions: A Comment, 1 J.App. Prac. & Process 219(1999). . This case is distinguishable from Torres v. Secretary of Health & Human Services, 870 F.2d 742 (1st Cir.1989) (per curiam), in which the First Circuit held that a claimant's failure to object to the" } ]

[ { "docid": "5282944", "title": "", "text": "receive notice of the meeting. The IRS learned of the bankrupt cy on September 27, 1985. On October 7, 1985, the IRS filed its claim as a priority claim in the amount of $18,892.35. The claim is primarily for employment taxes for the second and third quarters of 1983 as reported on returns delinquently filed by the debtor. The United States Bankruptcy Court for the Eastern District of Kentucky determined that the fact that the IRS did not receive notice of the corporate debtor’s bankruptcy case in time to permit timely filing of a proof of claim does not affect the result dictated by applicable provisions of the Bankruptcy Rules. It held that the Rules do not permit it to enlarge the time to file this tardy claim. The Bankruptcy Court stated that Bankruptcy Rule 3002 requires that in a Chapter 7 liquidation case, an unsecured creditor, such as the IRS in this case, must file a claim within 90 days after the first date set for the meeting of creditors called pursuant to section 341 of the Bankruptcy Code in order for the claim to be allowed. The court noted that Bankruptcy Rule 3002(c)(1) permits a governmental entity to obtain an extension of time to file a proof of claim but only for cause shown on motion made before expiration of the 90 day period for filing claims; the court further noted that no such motion was filed in this case. The court also noted that Bankruptcy Rule 9006(b)(3) permits the court to enlarge the time for filing a proof of claim only under the conditions stated in Rule 3002(c) and that none of these conditions applies to the facts of this case. Finally, the Bankruptcy Court noted that although 11 U.S.C. § 726(a)(2)(C) authorizes pari passu distribution on a tardily filed unsecured claim if the creditor did not have notice or actual knowledge of the case in time to file a timely proof of claim, this provision excludes unsecured claims entitled to priority in distribution under 11 U.S.C. § 507, such as the claim of the IRS in" } ]

[ { "docid": "3503132", "title": "", "text": "to the timeliness of the filing of the IRS claim and asserting that the entire claim should be disallowed and discharged upon completion of the debtor’s plan. DISCUSSION The discharge provisions in a Chapter 13 case are set forth in 11 U.S.C. section 1328. With the exception of two types of debt not relevant to this case, section 1328(a) provides for the discharge of all debts which are either “provided for by the plan or disallowed under section 502.” 11 U.S.C. section 1328(a). Thus, the code section sets forth two conditions, either of which, when met, will result in the IRS claim being discharged. If the IRS claim is either “provided for by the plan” or “disallowed under section 502,” the claims of the government will be discharged upon the debtor’s completion of her plan. The IRS admits that its claim was not timely filed under Bankruptcy Rule 3002(a). Nevertheless, the IRS asserts that its claim will not be discharged. Was the IRS Claim Disallowed Under Section 502? The filing of proofs of claims is provided for in 11 U.S.C. section 501. While the section states who may file claims, it does not establish what makes the filing of a proof of claim timely. In a Chapter 13 case, pursuant to Bankruptcy Rule 3002(c), a proof of claim must be filed within 90 days of the first meeting of creditors. Fed.R.Bankr.P. 3002(c). Although Rule 3002(c)(1) permits the Court to extend the time for filing a claim by the United States on motion of the United States before the expiration of the time and for cause shown, the Court does not have dis cretionary authority to enlarge the time after the period has expired. Fed.R. Bankr.P. 3002(c)(2) and 9006(b)(3); In re Chirillo, 84 B.R. 120 (Bankr.N.D.Ill.1988). Such a rule is necessary for the efficient administration of the estate because it establishes a specific time after which the debtor, creditor, trustee, and the Court know that the last claim has been filed. The IRS did not move for an extension of time to file its claim and acknowledges that its proof of" }, { "docid": "3503133", "title": "", "text": "provided for in 11 U.S.C. section 501. While the section states who may file claims, it does not establish what makes the filing of a proof of claim timely. In a Chapter 13 case, pursuant to Bankruptcy Rule 3002(c), a proof of claim must be filed within 90 days of the first meeting of creditors. Fed.R.Bankr.P. 3002(c). Although Rule 3002(c)(1) permits the Court to extend the time for filing a claim by the United States on motion of the United States before the expiration of the time and for cause shown, the Court does not have dis cretionary authority to enlarge the time after the period has expired. Fed.R. Bankr.P. 3002(c)(2) and 9006(b)(3); In re Chirillo, 84 B.R. 120 (Bankr.N.D.Ill.1988). Such a rule is necessary for the efficient administration of the estate because it establishes a specific time after which the debtor, creditor, trustee, and the Court know that the last claim has been filed. The IRS did not move for an extension of time to file its claim and acknowledges that its proof of claim was filed after the January 16, 1985 bar date. Therefore, under Rule 3002(c), the IRS claim, which is untimely, cannot be allowed. However, whether the IRS claim should be discharged because it is not allowed is a different issue. Section 502 provides for both allowance and disallowance of claims. Un der subsections (a), (b), and (c), claims are either deemed allowed, allowed after notice and hearing, or estimated for purposes of allowance respectively. Subsection (d) disallows the claim of a party who has received an avoidable preference or failed to turnover property of the estate. Subsection (e) disallows claims by co-debtors, sureties, and guarantors to the extent the claim of the creditor is disallowed. Both subsections are inapplicable to the IRS claim. Various factual circumstances are set forth in subsections (f) through (i) relating to involuntary cases, rejection of exec-utory contracts, claims arising from the recovery of property, and post-petition tax claims. Again, these sections which refer to the allowance of a claim under subsections (a), (b) or (c) and the disallowance of a" }, { "docid": "18770303", "title": "", "text": "MEMORANDUM DECISION WILLIAM C. HILLMAN, Bankruptcy Judge. This case was commenced as a voluntary Chapter 7 on September 2, 1988 in the United States Bankruptcy Court for the Northern District of Illinois. The Illinois Bankruptcy Court established a bar date of January 19, 1989 for the filing of proofs of claim. Thereafter the case was transferred to the District of Massachusetts. By order dated February 3,1989, this Court affirmed the bar date set by the Illinois Bankruptcy Court. On April 21, 1989, three months after the confirmed bar date, the Internal Revenue Service (“IRS”) filed a proof of claim in the amount of $98,078.22 for unpaid pre-petition priority taxes. On May 21, 1993, the Chapter 7 trustee filed “Trustee’s Objections to Proofs of Claim.” (the “Objection”). In the Objection, the trustee recommended that the IRS claim should be .disallowed on the basis that it was untimely filed. The IRS filed a response wherein it stated that untimeliness in filing the claim should not in itself cause disallowance. DISCUSSION FRBP 3002(c) requires creditors to file proofs of claim against the estate within 90 days after the date set for the meeting of creditors. The Court may extend the period for the United States to file a claim, but only on a motion made “before the expiration of such period.” FRBP 3002(c)(1). FRBP 9006(b)(3) provides that the time limits of Rule 3002(c) may be enlarged by the Court “only to the extent and under the conditions stated” in the rule. Thus, the Court has no discretion to grant the IRS a retroactive extension to timely file its claim. In re Global Precious Metals Inc., 143 B.R. 204, 205 (Bankr.N.D.Ill.1992). However, the fact that IRS’s claim is untimely does not resolve the issue of whether the claim is entitled to payment from the estate. Allowance of claims is governed by § 502 of the Code which states: (a) A claim or interest, proof of which is filed under section 501 of this title, is deemed allowed, unless a party in interest ... objects. (b) ... if such objection to a claim is made," }, { "docid": "1074626", "title": "", "text": "the movant is entitled to judgment as a matter of law. Alexander v. Chicago, 994 F.2d 333, 335-36 (7th Cir.1993). As discussed below, Debtor’s first objection is overruled, and so his motion for judgment thereon is denied. DISCUSSION The issue presented is whether a creditor who has not received proper notice of a Chapter 13 bankruptcy filing, or notice adequate to inform it of the debtor’s business, should be permitted to file a late proof of claim. The Bankruptcy Code itself does not provide a time limit within which a creditor must file a proof of claim. In re Cole, 146 B.R. 837, 839 (D.Col.1992) (citation omitted); see United States v. Cardinal Mine Supply, Inc., 916 F.2d 1087, 1088 (6th Cir.1990). Rather, the Federal Rules of Bankruptcy Procedure fix the time limit for claims filing. Pursuant to Fed.R.Bankr.P. 3002(c), the creditor in a Chapter 13 proceeding is required to file a proof of claim within ninety days after the date first set for the meeting of creditors called under 11 U.S.C. § 341. There are several instances under Rule 3002(c) when the time for filing proofs of claim may be extended in a Chapter 13 proceeding, none of which apply to the present case. In addition, a bankruptcy judge is authorized by Fed. R.Bankr.P. 9006(b)(1) to enlarge time limitations on certain filings where the creditor has failed to file in a timely manner because of “excusable neglect.” However, the language of Rule 9006(b)(3) clearly states that Rule 9006 cannot be used to expand the list of exceptions contained in Rule 3002(e). The IDR first argues that the filing of late claims can be allowed “for cause” pursuant to Rule 3002(c)(1). That Rule provides: On motion of the United States, a state, or subdivision thereof before the expiration of such period and for good cause shown, the court may extend the time for filing of a claim by the United States, a state, or a subdivision thereof. Fed.R.Bankr.P. 3002(c)(1). Thus, for a party to preserve its right to file a late claim and still have it deemed timely, Rule 3002(c)(1) requires" }, { "docid": "4771984", "title": "", "text": "the Trustee, this Court will not use its equitable powers to do what is otherwise prohibited. CONCLUSION A bankruptcy court is not allowed to extend the time for filing proofs of claim in a Chapter 7 except under limited conditions, the conditions do not include where a creditor was not listed on the schedules and does not have knowledge of the bankruptcy. Fed.R.Bankr.P. 9006(b)(3). There is no denial of due process unless a person is deprived of life, liberty or property. The Bankruptcy Rules do not violate a creditor’s right to due process because the creditor’s claim is protected by Sections 726, 523 and 501 of the Bankruptcy Code. Accordingly the Trustee’s Motions to Extend the Time for Filing Proofs of Claim are denied. . The order of distribution in a Chapter 7 is set forth in § 726 which provides in part: (a) Except as provided in section 510 of this title, property of the estate shall be distributed— (1) first, in payment of claims of the kind specified in, and in the order specified in, section 507 of this title; (2) second, in payment of any allowed unsecured claim, other than a claim of a kind specified in paragraph (1), (3), or (4) of this subsection, proof of which is— (A) timely filed under section 501(a) of this title; (B) timely filed under section 501(b) or 501(c) of this title, or— (C)tardily filed under section 501(a) of this title, if— (i) the creditor that holds such claim did not have notice or actual knowledge of the case in time for timely filing of a proof of such claim under section 501(a) of this title; and (ii) proof of such claim is filed in time to permit payment of such claim; (3)third, in payment of any allowed unsecured claim proof of which is tardily filed under section 501(a) of this title, other than a claim of the kind specified in paragraph (2)(C) of this subsection.... . The court recognized that the IRS, as a governmental entity, was not protected by the due process clause. It concluded that § 342" }, { "docid": "4771983", "title": "", "text": "§ 523(a)(3) a claim is not dischargeable if the creditor was not listed or scheduled. Therefore, at the conclusion of the case, the creditor will still be able to assert its claim thus avoiding any due process problems. In re Chirillo, 84 B.R. 120 (Bankr.N.D.Ill.1988). Finally, § 501(c) authorizes the trustee or debtor to file a proof of claim on behalf of a creditor where the creditor does not timely file. The trustee has 30 days after expiration of the filing period to file on behalf of the creditor. Fed.R.Bankr.P. 3004. In this case, the Trustee did not utilize § 501(c). The Trustee also contends that this Court can use its equitable powers to extend the time for filing proofs of claim in order to avoid an unjust and harsh result. The bankruptcy court has broad equitable powers to “issue any order ... that is necessary or appropriate to carry out the provisions of this title.” 11 U.S.C. § 105(a). In light of the express prohibition in the Bankruptcy Rules against the order requested by the Trustee, this Court will not use its equitable powers to do what is otherwise prohibited. CONCLUSION A bankruptcy court is not allowed to extend the time for filing proofs of claim in a Chapter 7 except under limited conditions, the conditions do not include where a creditor was not listed on the schedules and does not have knowledge of the bankruptcy. Fed.R.Bankr.P. 9006(b)(3). There is no denial of due process unless a person is deprived of life, liberty or property. The Bankruptcy Rules do not violate a creditor’s right to due process because the creditor’s claim is protected by Sections 726, 523 and 501 of the Bankruptcy Code. Accordingly the Trustee’s Motions to Extend the Time for Filing Proofs of Claim are denied. . The order of distribution in a Chapter 7 is set forth in § 726 which provides in part: (a) Except as provided in section 510 of this title, property of the estate shall be distributed— (1) first, in payment of claims of the kind specified in, and in the order" }, { "docid": "8384012", "title": "", "text": "proof of claim within the 90 days. The chapter 13 trustee filed a motion to disallow the late filed claim pursuant to § 502(b)(9). . None of the cases under consideration presented facts that would have allowed the \"equitable tolling\" of § 502(b)(9)’s deadlines. Lack of notice of the debtor’s bankruptcy or the claims bar date is not enough. . Federal Rule of Bankruptcy Procedure 3004 provides limited relief in certain circumstances: Rule 3004. Filing of Claims by Debtor or Trustee If a creditor fails to file a proof of claim on or before the first date set for the meeting of creditors called pursuant to § 341(a) of the Code, the debtor or trustee may do so in the name of the creditor, within 30 days after the expiration of time for filing claims prescribed by Rule 3002(c) or 3003(c), whichever is applicable .... Fed.R.Bankr.P. 3004 (1998). The court offers no opinion as to whether Federal Rule of Bankruptcy Procedure 9006(b) is available to extend the 30 days in Rule 3004. . In the case of Richard M. Castle, case number 396-10073, National City Bank sought an enlargement of the time for filing its proof of claim pursuant to Federal Rule of Bankruptcy Procedure 9006(b)(l)(2). Federal Rule of Bankruptcy Procedure 9006(b)(l)(2) provides as follows: Rule 9006. Time (b) ENLARGEMENT. (1)IN GENERAL. Except as provided in paragraphs (2) and (3) of this subdivision, when an act is required or allowed to be done at or within a specified period by these rules or by a notice given thereunder or by order of court, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if the request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) on motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect. (2) ENLARGEMENT NOT PERMITTED. The court may not enlarge the time for taking action" }, { "docid": "14804922", "title": "", "text": "Distribution. The IRS filed its own proof of claim on January 25, 1989, identifying the tax owed as a penalty under 26 U.S.C. § 6672 for failure to pay withholding taxes, a claim which receives priority over the claims of other creditors under 11 U.S.C. § 507(a)(7)(C). The Trustee and two creditors, Columbia Construction Company and Capital Lighting and Supply, Inc., filed objections to Debtors’ proof of claim on behalf of the IRS. At a hearing on Debtors’ motion for extension of time, the bankruptcy court denied the motion on the ground that Debtors were unable to show excusable neglect so as to qualify for an enlargement of time for filing under Bankruptcy Rule 3004. In re Davis, 108 B.R. 95, 99 (Bankr.D.Md.1989). The court also denied Debtors’ request that, as alternative relief, the untimely proof of claim they filed on behalf of the IRS be regarded as an amendment of a de facto informal proof of claim that Debtors claim resulted when they scheduled their IRS debt. Id. at 99-100. Finally, the court rejected Debtors’ argument that Rule 3004 is unconstitutional for failure to give them proper notice of the date its filing period expired. Id. at 99. Debtors appealed to the United States District Court for Maryland at Baltimore. The district court held that the bankruptcy court correctly rejected Debtors’ proof of claim as untimely filed. Denying Debtors’ appeal, the district court upheld the bankruptcy court’s findings that the untimely filing did not result from excusable neglect, the untimely filed claim could not be regarded as an amendment to a de facto claim, and Rule 3004 is not unconstitutional. Under the jurisdictional provenance of 28 U.S.C. § 158(d), Debtors then appealed the district court’s judgment to this court. II. Proofs of claim in bankruptcy are generally filed by creditors, who must file with the bankruptcy court in order to have their claims against the estate allowed. Fed.R.Bankr.P. 3002(a). By the operation of Bankruptcy Rule 9006(b)(3) on Rule 3002(c), creditors in a Chapter 7 proceeding who do not file a proof of claim within 90 days after the creditors’" }, { "docid": "4771978", "title": "", "text": "for filing proofs of claim may be extended in a Chapter 7, none of which are available here. Fed.R.Bankr.P. 3002(c). The bankruptcy court’s authority to extend the time for filing proofs of claim is also limited by Fed.R.Bankr.P. 9006. Under Rule 9006(b)(3) the court is only allowed to extend the time for taking action under Rule 3002(c) “to the extent and under the conditions stated in [the] rule.” Based upon the express provisions of the Federal Rules of Bankruptcy Procedure this Court may not extend the time for filing proofs of claim. The Trustee contends that the Bankruptcy Rules deprive a creditor of property without due process of law, if it eliminates a creditor’s claim before the creditor has notice of the pending bankruptcy. Relying on U.S. v. Cardinal Mine Supply, Inc., 916 F.2d 1087 (6th Cir.1990), the Trustee claims that based upon the due process clause and its equitable powers this Court can extend the time for filing proofs of claim despite the express prohibition in the Federal Rules of Bankruptcy Procedure. In Cardinal Mine the Internal Revenue Service (“IRS”) filed a proof of claim for priority taxes nearly one and one-half years after the time for filing proofs of claim had expired. The Debtor had failed to list the IRS as a creditor on its schedules, consequently the IRS did not get notice nor did it have knowledge of the bankruptcy. The bankruptcy court concluded that because the Bankruptcy Rules did not allow it to enlarge the time for filing proofs of claim, the IRS’ claim would be subordinated to unsecured claims pursuant to § 726. The IRS objected to its claim being subordinated because it was late, when the lateness was caused by lack of notice. On appeal, the Sixth Circuit reversed the bankruptcy court. The Sixth Circuit initially determined that there was a conflict between the Bankruptcy Rules and the Bankruptcy Code to the extent that § 726 of the Code specifically contemplated that late claims would be filed and allowed and Fed.R.Bankr.P. 9006(b)(3) prohibited an extension of time except under limited conditions. The court held" }, { "docid": "4771979", "title": "", "text": "Mine the Internal Revenue Service (“IRS”) filed a proof of claim for priority taxes nearly one and one-half years after the time for filing proofs of claim had expired. The Debtor had failed to list the IRS as a creditor on its schedules, consequently the IRS did not get notice nor did it have knowledge of the bankruptcy. The bankruptcy court concluded that because the Bankruptcy Rules did not allow it to enlarge the time for filing proofs of claim, the IRS’ claim would be subordinated to unsecured claims pursuant to § 726. The IRS objected to its claim being subordinated because it was late, when the lateness was caused by lack of notice. On appeal, the Sixth Circuit reversed the bankruptcy court. The Sixth Circuit initially determined that there was a conflict between the Bankruptcy Rules and the Bankruptcy Code to the extent that § 726 of the Code specifically contemplated that late claims would be filed and allowed and Fed.R.Bankr.P. 9006(b)(3) prohibited an extension of time except under limited conditions. The court held that “to the extent that Rule 9006 contradicts the statute, it cannot stand.” Cardinal Mine 916 F.2d at 1089. The court then discussed the lack of notice and held that when a creditor does not have notice or actual knowledge due process and equity require that the creditor be allowed to file its claim upon learning of the bankruptcy. The court allowed the IRS’ priority claim despite its lateness stating: “The failure of the Bankruptcy Rules to provide relief to creditors who receive no notice of a bankruptcy and have no knowledge of it cannot deprive those creditors of their substantive right not to have their property rights taken away without notice.” Cardinal Mine 916 F.2d at 1091. This approach to the time limits provided in the Federal Rules of Bankruptcy Procedure was also followed by the District Court for the Northern District of Illinois in In re Dodd, 82 B.R. 924 (N.D.Ill.1987). In Dodd the District Court concluded that a creditor would be entitled to file its claim despite the time limitations in the" }, { "docid": "7991701", "title": "", "text": "it was untimely under 11 U.S.C. § 502(b)(9). If the IRS’s claim is allowed, the confirmed plan cannot be consummated without a substantial increase in payments from the debtors. The IRS counters that the deadline for filing a timely claim fixed by § 502(b)(9) should be equitably tolled when there is a failure of notice. The IRS urges that “fundamental fairness” precludes application of § 502(b)(9) when loss of participation in plan payments results from untimely notice. Discussion Section 502(b)(9) provides a filed claim is allowed except to the extent that: proof of such claim is not timely filed, except to the extent tardily filed as permitted under paragraph (1), (2), or (3) of section 726(a) of this title or under the Federal Rules of Bankruptcy Procedure, except that a claim of a governmental unit shall be timely filed if it is filed before 180 days after the date of the order for relief or such later time as the Federal Rules of Bankruptcy Procedure may provide. 11 U.S.C. § 502(b)(9). Bankruptcy Rule 3002(c)(1) accepts the statutory invitation by providing that the government can seek a later time for timely filing a proof of claim only by motion filed within the 180 days allowed by § 502(b)(9): A proof of claim filed by a governmental unit is timely filed if it is filed not later than 180 days after the date of the order for relief. On motion of a governmental unit before the expiration of such period and for cause shown, the court may ex tend the time for filing of a claim by the governmental unit. Fed.R.BanKR.P. 3002(c)(1). Bankruptcy Rule 9006 further limits extensions of time to file timely claims: (b) ENLARGEMENT. ${$ :¡: :¡í (3) ENLARGEMENT LIMITED. The court may enlarge the time for taking action under Rule[ ] ... 3002(c) ... only to the extent and under the conditions stated in [that rule]. Fed.R.BankR.P. 9006(b). Section 502(b)(9) and Bankruptcy Rules 3002(c) and 9006(b)(3) are a comprehensive, unambiguous scheme that disallows untimely filed claims in Chapter 13 cases. The United States Court of Appeals for the Ninth" }, { "docid": "7991702", "title": "", "text": "the statutory invitation by providing that the government can seek a later time for timely filing a proof of claim only by motion filed within the 180 days allowed by § 502(b)(9): A proof of claim filed by a governmental unit is timely filed if it is filed not later than 180 days after the date of the order for relief. On motion of a governmental unit before the expiration of such period and for cause shown, the court may ex tend the time for filing of a claim by the governmental unit. Fed.R.BanKR.P. 3002(c)(1). Bankruptcy Rule 9006 further limits extensions of time to file timely claims: (b) ENLARGEMENT. ${$ :¡: :¡í (3) ENLARGEMENT LIMITED. The court may enlarge the time for taking action under Rule[ ] ... 3002(c) ... only to the extent and under the conditions stated in [that rule]. Fed.R.BankR.P. 9006(b). Section 502(b)(9) and Bankruptcy Rules 3002(c) and 9006(b)(3) are a comprehensive, unambiguous scheme that disallows untimely filed claims in Chapter 13 cases. The United States Court of Appeals for the Ninth Circuit explained this outcome in Gardenhire v. IRS (In re Gardenhire), 209 F.3d 1145 (9th Cir.2000): Section 502(b)(9), in providing that the time for a governmental unit to file its proof of claim shall be either 180 days ‘or such later time as the Federal Rules of Bankruptcy Procedure may provide,’ requires reference to the Bankruptcy Rules. Bankruptcy Rule 3002(c)(1) implements § 502(b)(9), providing that in cases under Chapter 7, 12, and 13 of the Bankruptcy Code, the government’s proof of claim must be filed ‘no later than 180 days after the date of the order for relief in order to be deemed timely. Rule 3002(c)(1) thus reinforces the 180-day period provided for by the statute. Rule 3002(c)(1) also implements the ‘such later time’ language of § 502(b)(9), however, by allowing the bankruptcy court to extend the time for filing a proof of claim if three specific conditions are met: (1) the government moves for an extension, (2) the motion itself is filed before expiration of the 180-day period, and (3) cause for extension is" }, { "docid": "1114480", "title": "", "text": "(3), or (4) of this subsection, proof of which is— (A) timely filed under section 501(a) of this title; (B) timely filed under section 501(b) or 501(c) of this title; or (C) tardily filed under section 501(a) of this title, if— (i) the creditor that holds such claim did not have notice or actual knowledge of the case in time for timely filing of a proof of such claim under section 501(a) of this title; and (ii) proof of such claim is filed in time to permit payment of such claim; (3) third, in payment of any allowed unsecured claim proof of which is tardily filed under section 501(a) of this title, other than a claim of the kind specified in paragraph (2)(C) of this subsection ... 11 U.S.C. § 726 (1988) Trustee’s objection seeks to reduce the IRS claim to zero because of late filing. IRS alleges the late filed priority claim is entitled to payment pursuant to Section 726(a)(1). Further, it asserts the general unsecured portion of the claim warrants payment under Section 726(a)(3). Alternatively, it maintains the entire claim should be paid by authority of Section 726(a)(3). The IRS is scheduled as a creditor, received notice of the claims bar date and failed to timely file. Bankruptcy Rule 3002(c) requires claims in a Chapter 7 case to be filed within 90 days after the first date set for the meeting of creditors. Fed. Bankr.R.Proc. 3002(c). Generally this rule is strictly construed as a statute of limitations to provide finality and insure swift distribution of the bankruptcy estate. In re Robert Stone Cut Off Equipment, Inc., 98 B.R. 158 (Bankr.N.D.N.Y.1989). Provisions therein for extension of the bar date are inapplicable in the within case. Bankruptcy Rule 9006 provides for enlargement of time only on conditions stated in Rule 3002(c). Fed.Bankr.R.Proc. 9006(b)(3). In United States v. Cardinal Mine Supply, Inc., 916 F.2d 1087 (6th Cir.1990), the Court held Section 726 of the Bankruptcy Code contemplates payment of some tardily filed claims and the bankruptcy rules cannot contradict the statute regarding that payment. The issue, therefore, is whether the IRS" }, { "docid": "18505512", "title": "", "text": "proof of claim. There is conflicting authority on this issue. In my opinion, however, the better reasoned cases hold that the notice requirements of the Code and Rules, due process and fundamental fairness all require the allowance of late proofs of claim in these circumstances. The Bankruptcy Code does not specify the time limit within which a creditor must file a proof of claim. See United States v. Cardinal Mine Supply, Inc., 916 F.2d 1087, 1088 (6th Cir.1990); 11 U.S.C. § 601. Instead, those limits are set forth in the Bankruptcy Rules. Bankruptcy Rule 3002(c) requires a proof of claim in a Chapter 13 case to be filed “within 90 days after the first date set for the meeting of creditors called pursuant to § 341(a) of the Code.” In addition, the rule lists six exceptions for which the 90-day period does not apply, none of which are relevant to this case. See Bankr.R. 3002(c)(1)-(6). If a creditor fails to file a claim within the time specified in Bankruptcy Rule 3002(c), the Bankruptcy Rules further permit the debt- or or the trustee to file a claim “in the name of the creditor, within 30 days after the expiration of the time for filing claims prescribed by Rule 3002(c).” Bankr.R. 3004. If neither the creditor nor the debtor has timely filed a proof of claim, and the creditor later seeks permission to do so, the bankruptcy court must look to Bankruptcy Rule 9006(b) to determine whether it may grant the creditor’s request. This rule grants the bankruptcy court discretion to extend time periods set forth in the rules if the request for extension is made before the period expires, or if the failure to act within the specified period was the result of “excusable neglect.” Bankr.R. 9006(b). The rule has two exceptions, however. The first absolutely prohibits extensions of time with respect to several rules, none of which are involved here. Second, enlargement is permitted in connection with Bankruptcy Rule 3002(c) and other specified rules “only to the extent and under the conditions stated in those rules.” Bankr.R. 9006(b)(3). Thus, “[a]" }, { "docid": "18641271", "title": "", "text": "or (6) until after the prescribed time for filing such complaints. The court dismissed the plaintiff’s complaint stating that: “The problem with this argument is that regardless of the adequacy of the scheduling of the debt, Caffal Bros, did have notice of Braun’s bankruptcy.” In short, the operative fact is whether or not the creditor has notice of the debtor’s bankruptcy proceeding in time to file a timely proof of claim under § 726 or a complaint to determine dischargeability under § 523. The fact that the creditor may not be aware of the nature of its claim or the fact that it has a claim at all, is not determinative for the purposes of the timeliness requirement of § 726 and B.R. 3002(c). Since the ED admits that it received a timely notice of this bankruptcy case, I conclude that it did have notice of the debtors’ bankruptcy case in time to have filed a timely proof of claim herein. Relying upon In re Sitzberger, 65 Bankr. 256 (Bankr.S.D.Cal.1986), however, the ED argues that this court may treat its claim as having been timely filed. In Sitzberger, the court on similar facts involving a Chapter 11 debtor, extended the IRS’ time for filing under B.R. 3003(c)(3) and § 105, finding that IRS’ neglect in not filing a timely claim was excusable under B.R. 9006(b). The ED overlooks, however, the differences between a Chapter 11 reorganization case and a Chapter 7 liquidation case. In Chapter 11, the court fixes the time for the filing of proofs of claim and may extend the time for filing proofs of claim pursuant to B.R. 3003(c)(3). In Chapter 7, the time for filing proofs of claim is governed by B.R. 3002(c). This court may extend the time for filing a proof of claim under B.R. 3002(c) only to the extent allowed in that rule. B.R. 9006(b)(3). B.R. 3002(c) provides in pertinent part as follows: In a chapter 7 liquidation or chapter 13 individual’s debt adjustment case, a proof of claim shall be filed within 90 days after the first date set for the meeting" }, { "docid": "5282946", "title": "", "text": "this case. Thus the court sustained the trustee’s objection to the tardily filed claim of the IRS and found that the order of distribution on the claim is that provided for by 11 U.S.C. § 726(a)(3), that is after the distribution on non-priority unsecured claims. The IRS appealed, and the District Court affirmed the decision of the Bankruptcy Court. The District Court stated that “[sjection 726(a)(2)(C) of Title 11 allows distribution for a late general unsecured claim if the creditor did not have notice or actual knowledge of the case in time for filing a proof of claim. However, this provision specifically excludes unsecured claims entitled to priority, such as the IRS’ claim here.” We do not agree that the Bankruptcy Code requires that exclusion. Section 501(a) of the Bankruptcy Code provides that a creditor may file a proof of claim. 11 U.S.C. § 501(a). The Code requires that appropriate notice be given (11 U.S.C. § 342) but does not specify what notice shall be given to creditors or when it shall be given. That was left to the Bankruptcy Rules. Bankruptcy Rule 3002(c) provides that a proof of claim in a Chapter 7 or 13 case shall be filed within 90 days after the first date set for the meetings of creditors. Rule 9006 provides that the court may enlarge the time under Rule 3002(c) only to the extent and under the conditions stated by that rule. It is clear that the IRS did not file its claim within the time period permitted by Rule 3002(c). The IRS argues, however, that a federal tax claim, filed late because the IRS was not notified and had no knowledge of the debt- or’s bankruptcy case or of the bar date, may not be subordinated to non-priority unsecured claims. Section 507 sets forth the types of claims that are to be given priority treatment, and sets forth the order that the priority is to take. 11 U.S.C. § 507. There is no question that the employment taxes claimed by the IRS would receive priority under section 507 had a claim for them" }, { "docid": "12474754", "title": "", "text": "may provide.” Id. Thus, under 11 U.S.C. § 502, the Federal Rules of Bankruptcy Procedure govern the filing of a proof of claim. Rule 3002 provides: (a) Necessity for Filing. An unsecured creditor or an equity security holder must file a proof of claim or interest for the claim or interest to be allowed, except as provided in Rules 1019(3), 3003, 3004, and 3005. *** (c) Time for Filing. In a chapter 7 liquidation, chapter 12 family farmer’s debt adjustment, or chapter 13 individual’s debt adjustment case, a proof of claim is timely filed if it is filed not later than 90 days after the first date set for the meeting of creditors called pursuant to § 341(a) of the Code, except as follows: (1) A proof of claim filed by a governmental unit is timely filed if it is filed not later than 180 days after the date of the order for relief. On motion of a governmental unit before the expiration of such period and for cause shown, the court may extend the time for filing of a claim by the governmental unit. Fed.R.Bankr.P. 3002. Although there are four other exceptions to the 90 day time limit of Fed.R.Bankr.P. 3002(c), none are applicable here. Accordingly, pursuant to Fed.R.Bankr.P. 3002, SBA, as a governmental unit had 180 days to file a proof of claim or seek an extension of time for the filing of the claim. Federal Rule of Bankruptcy Procedure 9006 governs requests for extensions of time. Rule 9006 provides: (b) Enlargement (1) In General. Except as provided in paragraphs (2) and (3) of this subdivision, when an act is required or allowed to be done at or within a specified period by these rules or by a notice given thereunder or by order of court, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if the request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) on motion made after the expiration" }, { "docid": "18505515", "title": "", "text": "timely proof of claim only in the officer’s case but failed to do so in the corporation’s case. The RTC argued that its failure was excusable neglect because, while it had received the appropriate notice triggering the time period in the officer’s case, it did not receive the notice in the corporate case despite adequate internal mail-handling procedures. The bankruptcy court agreed and granted the RTC’s motion for approval of the late claim. See id. at 270-71. On appeal, I reversed, holding that the provision of Bankruptcy Rule 9006(b)(1) permitting extensions of time for excusable neglect was inapplicable to a request for an extension of time to file a proof of claim under Rule 3002(c). Id. at 271. In a footnote, however, I indicated one situation in which this inflexible rule would not apply, explaining: This was not a situation in which the creditor had no notice of the bankruptcy proceedings or where there had been no attempt to serve notice of the bar date. In such circumstances, failure to extend the bar date could result in denial of due process. See In re Harbor Tank Storage Co., 385 F.2d 111, 114 (3d Cir.1967). Here, it is undisputed that Otero, and its successor the RTC, had notice of SCO’s bankruptcy and that the NOPD was mailed to all creditors, including Otero. Id. at 272, n. 6. In contrast, in In re Johnson, despite earlier contact by a local IRS revenue officer, several notices in the debtors’ bankruptcy case were mailed to the IRS at “Ogden, Utah 84201.” In addition, the Chapter 13 Trustee’s notice of bankruptcy filing, which established the date of the first meeting of creditors and the bar date for filing proofs of claim, was never mailed to the IRS. See 95 B.R. at 198. Ruling on the debtors’ objection to the IRS’ late proof of claim, the bankruptcy court acknowledged that Rule 9006(b)(3) prevented the court from allowing the untimely filing of a proof of claim where the creditor alleges excusable neglect. See id. at 202 & n. 13. Nevertheless, the court held that “under truly extraordinary," }, { "docid": "12474755", "title": "", "text": "time for filing of a claim by the governmental unit. Fed.R.Bankr.P. 3002. Although there are four other exceptions to the 90 day time limit of Fed.R.Bankr.P. 3002(c), none are applicable here. Accordingly, pursuant to Fed.R.Bankr.P. 3002, SBA, as a governmental unit had 180 days to file a proof of claim or seek an extension of time for the filing of the claim. Federal Rule of Bankruptcy Procedure 9006 governs requests for extensions of time. Rule 9006 provides: (b) Enlargement (1) In General. Except as provided in paragraphs (2) and (3) of this subdivision, when an act is required or allowed to be done at or within a specified period by these rules or by a notice given thereunder or by order of court, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if the request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) on motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect. *** (3) Enlargement Limited. The court may enlarge the time for taking action under Rules 1006(b)(2), 1017(e), 3002(c) [governing the time for filing proofs of claim and requests for extension], 4003(b), 4004(a), 4007(c), 8002, and 9033, only to the extent and under the conditions stated in those rules. Fed.R.Bankr.P. 9006(b). This Rule governs the Court’s discretion to extend the time for a party to act. Although the Court can generally permit actions based on excusable neglect under Fed.R.Bankr.P. 9006(b)(1), pursuant to Fed.R.Bankr.P. 9006(b)(3), the court’s discretion to enlarge the time to file a proof of claim in a Chapter 13 is limited to the conditions in Rule 3002. The Bankruptcy Court relied on the Supreme Court’s decision in Pioneer Investment Services Company v. Brunswick Associates, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993), to conclude that the “excusable neglect” standard applies in a Chapter 13 case. Pioneer, however, was a Chapter 11" }, { "docid": "4771977", "title": "", "text": "President was questioned regarding the affairs of the Debtors. Skow-ron testified that some of the Debtors’ creditors were not listed on the Debtors’ Schedules of Assets and Liabilities (“Schedules”). The Trustee verified this by reviewing the Debtors’ mail which was forwarded to the Trustee pursuant to an order of this Court on September 10, 1991. The Trustee’s review and investigation of this matter revealed that only approximately 10 of the Debtors’ 220 creditors were listed on the Schedules. Since those creditors were not listed on the Schedules they did not receive notice of the pending bankruptcies. ' The Trustee contends that it would be a denial of due process to allow the time for filing proofs of claim to expire when the creditors were not given notice within the time to file a claim. DISCUSSION A creditor in a Chapter 7 is required to file a proof of claim within 90 days after the date first set for the meeting of creditors called under § 341. Fed.R.Bankr.P. 3002(c). There are six instances where the time for filing proofs of claim may be extended in a Chapter 7, none of which are available here. Fed.R.Bankr.P. 3002(c). The bankruptcy court’s authority to extend the time for filing proofs of claim is also limited by Fed.R.Bankr.P. 9006. Under Rule 9006(b)(3) the court is only allowed to extend the time for taking action under Rule 3002(c) “to the extent and under the conditions stated in [the] rule.” Based upon the express provisions of the Federal Rules of Bankruptcy Procedure this Court may not extend the time for filing proofs of claim. The Trustee contends that the Bankruptcy Rules deprive a creditor of property without due process of law, if it eliminates a creditor’s claim before the creditor has notice of the pending bankruptcy. Relying on U.S. v. Cardinal Mine Supply, Inc., 916 F.2d 1087 (6th Cir.1990), the Trustee claims that based upon the due process clause and its equitable powers this Court can extend the time for filing proofs of claim despite the express prohibition in the Federal Rules of Bankruptcy Procedure. In Cardinal" } ]

[ { "docid": "5609512", "title": "", "text": "in the private sector with the added uniqueness added [sic] by the legislative process. For this reason the Committee is convinced that additional data and study is necessary before any attempt is made to address the issues of vesting and funding with respect to public plans. H.R.Rep. No. 583, 93d Cong., 1st Sess. 9 (1973). A background assumption underlying the governmental plan exemption, then, was that public employees exempted from ERISA were in fact covered by some distinctively “public” employee benefit scheme. Cf. 29 U.S.C. § 1002(32) (plans of private employers governed by the Railroad Retirement Act of 1935 or 1937 specifically exempted from ERISA as “governmental plans”). We find no indication that Congress meant the governmental plan exemption to reach an entity that relates to its employees as would a private business — an entity whose employees are not subject to laws governing public employees generally. Measured by the terms and conditions of their employment, FADA personnel far more closely resembled private sector employees than they did government workers. Like employees of “ordinary” federally chartered S & L’s, FADA’s employees were outside the civil service system, and were not subject to personnel rules or restrictions on salaries and benefits imposed generally on federal employees. See 5 U.S.C. § 2105 (definition of federal “employee” for purposes of title 5); 5 U.S.C. § 5101 (classification of positions for purposes of pay and for use “in all phases of personnel administration”); 5 U.S.C. §§ 8331 et seq. (civil service retirement benefits); 5 U.S.C. §§ 8401 et seq. (federal employees’ retirement system). Indeed, both sides acknowledge that a major reason for FADA’s creation was to make possible the engagement of skilled personnel by offering salaries commensurate with those in the private sector. Furthermore, the voting members of FADA’s board of directors — the persons responsible for selecting FADA’s management and setting its employment policies— were not government officials, but private individuals. The special “retention bene fits” involved in this case were established by that board, and are hardly characteristic of public-sector schemes. In concluding that FADA’s employee benefit plans are not exempt from" } ]

[ { "docid": "5609513", "title": "", "text": "chartered S & L’s, FADA’s employees were outside the civil service system, and were not subject to personnel rules or restrictions on salaries and benefits imposed generally on federal employees. See 5 U.S.C. § 2105 (definition of federal “employee” for purposes of title 5); 5 U.S.C. § 5101 (classification of positions for purposes of pay and for use “in all phases of personnel administration”); 5 U.S.C. §§ 8331 et seq. (civil service retirement benefits); 5 U.S.C. §§ 8401 et seq. (federal employees’ retirement system). Indeed, both sides acknowledge that a major reason for FADA’s creation was to make possible the engagement of skilled personnel by offering salaries commensurate with those in the private sector. Furthermore, the voting members of FADA’s board of directors — the persons responsible for selecting FADA’s management and setting its employment policies— were not government officials, but private individuals. The special “retention bene fits” involved in this case were established by that board, and are hardly characteristic of public-sector schemes. In concluding that FADA’s employee benefit plans are not exempt from ERISA, we are mindful that FADA’s public affiliations are with the federal government. Appellants have identified no entity that escapes ERISA’s reach due to its federal character, yet is not governed by federal civil service laws or any other public employment benefits scheme. It would be anomalous, we think, to characterize FADA as an instrumentality of the United States Government and then, on the basis of its federal character, expose it to a disparate array of state-based common law and statutory claims. Cf. Gilbert, 765 F.2d at 327 (noting that “policy of national uniformity” favored ERISA preemption of state common law and statutory claims where “plaintiffs were employed in 16 different states”). In sum, and in full accord with the district court, we hold that ERISA provides the regulatory regime for the benefits at stake and that the federal act preempts the state-law claims plaintiffs set out in their complaints. III. Complaint Amendment Noting that plaintiffs had failed to plead ERISA violations in their complaints, the district court entered final judgment against them, pursuant to" }, { "docid": "14565570", "title": "", "text": "of duties to committees that may be composed of non-public agency representatives, it does not appear that ACWA is operated by individuals that are accountable to the public entities, particularly with regard to its insurance plans. Perhaps most importantly, to hold, as plaintiffs argue, that the ACWA Plan is an ERISA-exempt governmental plan would permit ACWA’s private members to circumvent the provisions of ERISA merely by participating in the ACWA Plan. ERISA was intended to broadly cover all private employers, particularly all private employers where abuses of the prior scheme were deemed most severe. See Ingersoll-Rand Co., 498 U.S. at 138, 111 S.Ct. 478. Accordingly, if a public entity chooses to participate in a ERISA plan that includes private employers, that public entity’s plan becomes subject to the provisions of ERISA. See Livolsi v. City of New Castle, 501 F.Supp. 1146, 1150 (W.D.Pa.1980) (“[Wjhen a state or local government body chooses a private welfare benefit plan for its employees, it will subject itself to federal jurisdiction under ERISA.”). As the Ninth Circuit has noted, public entities are free to set up and administer their own plans that would qualify as governmental plans, and they may even use a private entity to administer the plan. Silvera, 884 F.2d at 427. However, where, as here, the public entity participates in an ERISA plan that includes private participants, ERISA applies. To be entitled to the governmental plan exception—a narrow exception to ERISA coverage—a public entity must take steps to insure that the plan includes only public participants. 5. Plaintiffs Claims “Relate to” an ERISA Plan ERISA’s expansive preemption clause preempts all claims that “relate to” an ERISA plan, as ERISA’s civil enforcement provisions are the exclusive vehicle for actions by ERISA plan participants and beneficiaries asserting claims for benefits. Pilot Life Ins. Co., 481 U.S. at 52, 107 S.Ct. 1549; Crull v. GEM Ins. Co., 58 F.3d 1386, 1390-91 (9th Cir.1995). The clause is given a common-sense meaning: if a cause of action is connected with or references an ERISA plan, it is preempted. Pilot Life Ins. Co., 481 U.S. at 47-48, 107" }, { "docid": "22846989", "title": "", "text": "for its employees, id. § 403(b)(l)(A)(ii). Employers can also choose to make voluntary contributions to these plans. See id. § 403(b)(1); 26 C.F.R. § 1.403(b)-3(a). As with optional retirement savings plans established by private employers pursuant to 26 U.S.C. § 401(k), each public school district devises its own section 403(b) plan, presenting its employees with a menu of different vendors offering various individual annuity contracts or custodial accounts for the purchase of mutual funds. See 26 U.S.C. § 403(b)(1), (7). Each school district determines which vendors and annuity contracts to include in its menu of options, and provides the list of “approved” vendors to its employees. Employees then choose the vendor with whom they want to invest and sign individual annuity contracts with the vendor. However, while a section 403(b) plan is clearly a retirement plan, and would be considered an “employee pension benefit plan” if established or maintained by a 501(c)(3) tax-exempt employer, section 403(b) plans established by school dis tricts are exempted from ERISA by the “governmental plan” exception. 29 U.S.C. § 1003(b)(1). As noted earlier, ERISA defines “governmental plans” as plans “established or maintained for its employees by ... the government of any State or political subdivision thereof.” Id. § 1002(32). It is undisputed that public school districts are political subdivisions of the various states and are therefore governmental entities. The only issue is whether the school districts “established or maintained” the plans, thus bringing the plans within the “governmental plan” exception. Plaintiffs make two separate arguments that the school district employers did not establish or maintain the plans. First, Plaintiffs allege that the school districts did not make any contributions to their annuity accounts, and suggest that the lack of direct governmental funding precludes a finding that their employers’ section 403(b) plans are “governmental plans.” However, the structure of a section 403(b) plan necessarily implicates governmental action, regardless of the presence of direct governmental funding. The creation of a governmental employer’s section 403(b) plan generally begins, as here, with a state law requiring the creation of such plans by a public school district or some other" }, { "docid": "23509013", "title": "", "text": "summary judgment may not rest on mere conclusory allegations or denials in its pleadings. Fed.R.Civ.P. 56(e); see also Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, — U.S.-, 113 S.Ct. 82, 121 L.Ed.2d 46 (1992). DISCUSSION Title I of ERISA, 29 U.S.C. section 1001 et seq., explains the various substantive and procedural requirements of the statute. This remedial statute was enacted to encourage the establishment and growth of private pension plans and to protect the participants in those plans. 29 U.S.C. § 1001(c); see generally, Nachman Corp. v. Pension Benefit Guar. Corp., 446 U.S. 359, 361-362, 100 S.Ct. 1723, 1726, 64 L.Ed.2d 354 (1980). Although recognized as a “comprehensive and reticulated statute,” Congress excluded certain plans from ERISA coverage. See 29 U.S.C. § 1003(b)(1); 29 U.S.C. § 1321(b). 29 U.S.C. section 1003(b)(1) excluded governmental plans from ERISA coverage under Title I. For purposes of Title I, section 1002(32) defined “governmental plan” as “a plan established or maintained for its employees by the Government of the United States, by the government of any State or political subdivision thereof, or by any agency or instrumentality of any of the foregoing.” 29 U.S.C. § 1002(32). ERISA also excluded certain plans from Title IV coverage. See 29 U.S.C. § 1321(b)(2). In relevant part, section 1321(b)(2) states that ERISA coverage does not apply to any plan “established and maintained for its employees by the Government of the United States, by the government of any State or political subdivision thereof, or by any agency or instrumentality of any of the foregoing....” 29 U.S.C. § 1321(b)(2). The parties agree that upon the Plan’s inception, it qualified as an exempt governmental plan not subject to ERISA’s coverage provisions. Therefore, before the Foundation and the County executed the lease agreement, the Hospital’s employees were covered by an exempt governmental plan as defined by Title I and Title IV of ERISA. See 29 U.S.C. § 1002(32); 29 U.S.C. § 1321(b)(2). The Foundation, however, contends that the district court erred in determining that it maintained the plan for purposes of removing the Title IV, 29 U.S.C. 1321(b)(2), ERISA" }, { "docid": "14565573", "title": "", "text": "ERISA. Because plaintiffs state law claims are preempted by ERISA, the only remedy is through the ERISA civil enforcement scheme. See Crull, 58 F.3d at 1389-90. IT IS THEREFORE ORDERED that defendant’s motion for summary adjudication be, and the same hereby is, GRANTED. It is without substantial controversy that this action is governed by ERISA, and that plaintiffs state law claims are preempted by ERISA. Plaintiffs state law claims are therefore hereby DISMISSED WITHOUT PREJUDICE. Plaintiff is granted 20 days from the date of this order to amend her complaint to state a cause of action under ERISA. . The Department of Labor’s regulatory \"safe harbor” provisions, 29 C.F.R. § 2510.3-l(j), are inapplicable as ACWA endorses and promotes the Plan and ACWA members make contributions to the Plan. See Steen, 106 F.3d at 916-17. . It is clear that a governmental entity may choose to contract with a private company, such as Standard, to manage its plan and retain the \"governmental plan” exception. Silvera, 884 F.2d at 427. Here, however, defendant argues that the Plan is not established or maintained by a public entity or an agency or instrumentality of a public entity, not that it is excluded by virtue of being administered by a private company. . In contrast, JPIA is incorporated under various provisions of the California Government Code. . See also Brock v. Chicago Zoological Society, 820 F.2d 909, 912 (7th Cir.1987) (finding zoo officers did not owe the sort of \"direct personal accountability to public official or to the general public” that would entitle the zoo to an OSHA exemption) (citation omitted). . The ACWA bylaws state: \"There shall be an Insurance and Personnel Committee whose duty it shall be to review, on a regular basis, all group insurance program offerings, make recommendations to the Board of Directors regarding annual contract renewal of all group employee benefit plans, retirement issues, ACWA sponsored deferred compensation plans and other personnel and administrative issues pertinent to the management of member agencies. The committee shall consist of at least one and no more than two individuals from each region, at" }, { "docid": "5609510", "title": "", "text": "a plaintiff seeks to rely. Plaintiffs urge most strenuously, in opposition to RTC’s ERISA preemption defense, that the FADA benefits constitute an exempt “governmental plan.” See 29 U.S.C. § 1003(b)(1). A governmental plan is one established or maintained for its employees by the Government of the United States, by the government of any State or political subdivision thereof, or by any agency or instrumentality of any of the foregoing. 29 U.S.C. § 1002(32) (emphasis added). For some purposes, FADA might properly be characterized an agency or instrumentality of the federal government. The roles FHLBB and FSLIC played in creating, supervising, and patronizing FADA gave FADA an undeniable public coloration. On the other hand, certain of FADA’s features would not be found in a standard Field Guide to Governmental Entities: FADA’s payment of federal and state taxes, for example, cuts strongly against public entity categorization. To resolve this case, we do not engage in all-purpose characterization. As counsel for plaintiffs acknowledged at oral argument, an entity may be governmental for one purpose and nongovernmental for another. We therefore home in on the question whether FADA counts as a government instrumentality for purposes of the ERISA “governmental plan” exemption. As we next elaborate, in its employment relationships — the area most relevant for ERISA purposes — FADA functioned not like a governmental agency, but like a private enterprise. We therefore conclude that FADA is not exempt from ERISA. Unsurprisingly, ERISA’s text and legislative history do not address whether an entity like FADA falls within the governmental plan exemption. The legislative history does suggest, however, Congress' expectation that “governmental plans,” though not governed by ERISA, would be controlled by a comprehensive, legislatively-established scheme. In discussing the exemption for governmental plans, for example, the House Report explained: The Act does provide for coverage of public employee plans under Title I but excludes them from the other substantive provisions.... There are literally thousands of public employee retirement systems operated by towns, counties, authorities and cities in addition to the state and Federal plans. Eligibility, vesting, and funding provisions are at least as diverse as those" }, { "docid": "5609509", "title": "", "text": "of sickness, accident, disability, death or unemployment [.]” 29 U.S.C. § 1002(1)(A) (emphasis added). FADA’s retention benefits were payable only upon termination of an employee’s position due to a congressional direction for the closure of FADA. Plans that pay benefits upon job termination cushion employees against the impact of unemployment, even if also intended to reward past service. See Holland v. Burlington Industries, Inc., 772 F.2d 1140, 1145 (4th Cir.1985), aff'd mem. sub nom. Brooks v. Burlington Industries, Inc., 477 U.S. 901, 106 S.Ct. 3267, 91 L.Ed.2d 559 (1986); Gilbert v. Burlington Industries, Inc., 765 F.2d 320, 324-25 (2d Cir.1985), aff'd mem., 477 U.S. 901, 106 S.Ct. 3267, 91 L.Ed.2d 558 (1986). We similarly reject as untenable the Aristeguieta plaintiffs’ argument that ERISA “cannot, as a matter of law, preempt state law claims filed pursuant to a federal law such as FIRREA.” Brief of Appellants at 32. FIRREA’s grant of federal jurisdiction over state law-based claims against RTC-controlled institutions surely does not render inapplicable substantive federal statutes that may trump the state law upon which a plaintiff seeks to rely. Plaintiffs urge most strenuously, in opposition to RTC’s ERISA preemption defense, that the FADA benefits constitute an exempt “governmental plan.” See 29 U.S.C. § 1003(b)(1). A governmental plan is one established or maintained for its employees by the Government of the United States, by the government of any State or political subdivision thereof, or by any agency or instrumentality of any of the foregoing. 29 U.S.C. § 1002(32) (emphasis added). For some purposes, FADA might properly be characterized an agency or instrumentality of the federal government. The roles FHLBB and FSLIC played in creating, supervising, and patronizing FADA gave FADA an undeniable public coloration. On the other hand, certain of FADA’s features would not be found in a standard Field Guide to Governmental Entities: FADA’s payment of federal and state taxes, for example, cuts strongly against public entity categorization. To resolve this case, we do not engage in all-purpose characterization. As counsel for plaintiffs acknowledged at oral argument, an entity may be governmental for one purpose and nongovernmental for another." }, { "docid": "23509009", "title": "", "text": "the Hospital to the Memorial Hospital Foundation of Palestine, Inc. (Foundation). The Foundation became the employer of all Hospital employees effective on the Commencement date of the lease. Thus the employees ceased being government employees on that date. The lease also stated that the Foundation would assume responsibility for the Hospital employees’ retirement plan. The Foundation itself did not actively participate in or take control over the Plan at any time after the execution of the lease; those duties remained with the Plan administrator. Approximately six weeks after the commencement date of the lease, the Foundation terminated the existing Plan and created a new employee retirement system. At termination, the Plan had a surplus of approximately $750,000 after each beneficiary was paid. The Foundation then transferred the surplus to its operating account. The dispute centers on who is entitled to the $750,000 surplus generated by the termination of the pension fund. If the plan is governed by the Employee Retirement Income Security Act of 1974 (ERISA), the employees may be entitled to receive the surplus. On the other hand, the Foundation may be entitled to keep the pension surplus benefits if the plan continues to be considered a governmental plan, exempt from ERISA coverage. The parties agree that the Plan qualifies as an employee pension benefit plan under 29 U.S.C. section 1002(2)(A). Not surprisingly, plaintiffs contend that once the Foundation assumed control over the Hospital, all of its employees, and the Plan, the governmental plan exemptions, 29 U.S.C. sections 1003(b)(1), 1321(b)(2), no longer applied. As such, the Plan became subject to ERISA and plaintiffs assert that the Foundation terminated the Plan in violation of Titles I and IV of ERISA. 29 U.S.C. § 1001 et seq.; 29 U.S.C. § 1301 et seq. Conversely, the Foundation maintains that the Plan remained, at all times, a governmental plan exempt from ERISA coverage, and it further contends the exemptions applied even after the execution of the Hospital lease that made all of the Hospital employees Foundation employees. The employees/beneficiaries of the Plan filed a class action suit against the Foundation. The district court" }, { "docid": "23509028", "title": "", "text": "425-426 (9th Cir.1989); Rose, 828 F.2d at 919-920. I agree the starting point of statutory construction is the text of the statute and, if Congress’ intent is clear in the plain language of the statute, that is also the end of the construction. Here the plain language is disjunctive but Congress’ intent is certainly less than lucid. Interpreting section 1002(32) either in the disjunctive or conjunctive presents serious problems when considered with the general purpose of the governmental exemption and the statute as a whole. Rose explains why the use of conjunctive or disjunctive construction for Title I’s governmental exemption provisions leads to results inconsistent with the apparent legislative purpose of ERISA. See Rose, 828 F.2d at 919-920. The court recognized the difficulty in interpreting section 1002(32). It noted that adopting the literal meaning of “established or maintained” under section 1002(32) would enable a private entity, lacking the government-backed security of taxing powers, to take over a governmental plan without subjecting itself to the requirements of ERISA. Id. at 919. Alternatively, if the “established and maintained” language of section 1321(b)(2) was adopted, a governmental entity could not take over a private pension plan and qualify for an ERISA exemption. Id. at 920. Both interpretations lead to results contrary to the stated goals of the statute. Although the court did not reach the merits of this statutory quandary, Rose recognized that “the status of the entity which currently maintains a particular pension plan bears more relation to Congress’ goals in enacting ERISA and its various exemptions, than does the status of the entity which established the plan.” Id. at 920; see also Alley v. Resolution Trust Corp., 984 F.2d 1201, 1205 n. 11 (D.C.Cir.1993) (adopting a similar test based on “the core concern for ERISA purposes — the nature of an entity’s relationship to and governance of its employees.”) The Alley court also used this test to determine whether the Federal Asset Disposition Association was an “agency or instrumentality” for purposes of Title I’s governmental exemption, (citing Rose, 828 F.2d at 918); and see Silvera v. Mutual Life Insurance Co. of" }, { "docid": "23401102", "title": "", "text": "fact and, even after-construing all inferences in favor of the non-moving party, the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). II. GOVERNMENTAL PLAN Despite ERISA’s regulatory and remedial sweep, Congress did' not include public or governmental benefit plans within its reach believing, in part, state and local governments’ ability to tax, would enable them to operate employee benefit systems that would “avoid the pitfalls of underfunding.” Hightower v. Texas Hosp. Ass’n, 65 F.3d 443, 449 (5th Cir.1995); see also Rose v. Long Island R.R. Pension Plan, 828 F.2d 910, 914 (2d Cir.1987). Hence, under ERISA, [t]he term “governmental plan” means a plan established or maintained for its employees by the Government of the United States, by the government of any State or political subdivision thereof, or by any agency or instrumentality of any of the foregoing---- 29 U.S.C. § 1002(32). The plain language of this subsection focuses on the public entity, “the government of any State or political subdivision thereof,” that “established or maintained” the plan. ERISA deems these publicly-spawned plans to be exempt. While conceding her Plan is an employee benefit plan within the meaning of ERISA, 29 U.S.C. § 1003(a), Ms. McGraw persists in arguing it is a “governmental plan” exempt from ERISA The weight of her position rests on the degree of control the Emergency Medical Services Authority (EMSA), an Oklahoma public trust, exercises over her husband’s employment. That is, although her husband’s paycheck comes irom Lifefleet, Inc., a company owned by Secomerica, Inc., a subsidiary of a Japanese corporation, EMSA, in fact, controls and supervises all -of her husband’s work, owns all of the equipment connected with the delivery of ambulance services, purchases all supplies under its- tax exempt status, and holds the license permitting emergency workers supplied by Lifefleet to operate. Indeed, EMSA, which provided Mr. McGraw’s retirement plan, is like a vacuum, she offers, a shell into which Lifefleet employees are drawn to perform the essential functions for which EMSA was statutorily enacted. Coloring an employee’s work with a governmental aura, however, shifts the statutory focus and cannot substitute" }, { "docid": "23401103", "title": "", "text": "plans to be exempt. While conceding her Plan is an employee benefit plan within the meaning of ERISA, 29 U.S.C. § 1003(a), Ms. McGraw persists in arguing it is a “governmental plan” exempt from ERISA The weight of her position rests on the degree of control the Emergency Medical Services Authority (EMSA), an Oklahoma public trust, exercises over her husband’s employment. That is, although her husband’s paycheck comes irom Lifefleet, Inc., a company owned by Secomerica, Inc., a subsidiary of a Japanese corporation, EMSA, in fact, controls and supervises all -of her husband’s work, owns all of the equipment connected with the delivery of ambulance services, purchases all supplies under its- tax exempt status, and holds the license permitting emergency workers supplied by Lifefleet to operate. Indeed, EMSA, which provided Mr. McGraw’s retirement plan, is like a vacuum, she offers, a shell into which Lifefleet employees are drawn to perform the essential functions for which EMSA was statutorily enacted. Coloring an employee’s work with a governmental aura, however, shifts the statutory focus and cannot substitute for addressing the core of the inquiry: Did EMSA, a public trust established in Oklahoma to operate and furnish emergency health services for the “convenience, welfare, public health and safety” of the inhabitants of Tulsa and Oklahoma City purchase, establish or maintain the Plan? The record clearly reflects it did not. While Ms. McGraw may argue her husband’s private employment with Lifefleet, now American Medical Response of Oklahoma, Inc. (AMR), served only as a conduit for his actual employment with EMSA, that characterization ignores the fact EMSA did not establish the Plan or directly employ Mr. McGraw. Instead, Seeomerica purchased the Plan for the employees of LifefleeVAMR; LifefleeVAMR pays Mr. McGraw’s salary; and LifefleeVAMR contracts with EMSA solely to provide its personnel for EMSA’s emergency services. ' Alley v. Resolution Trust Corp., 984 F.2d 1201 (D.C.Cir.1993), parallels this case. There, employees of the then defunct Federal Asset Disposition Association (FADA) sued its receiver, the RTC, for payments due under FADA’s employee benefit plans. FADA employees operated under federal agency (FSLIG) auspices; its employees were not" }, { "docid": "23401105", "title": "", "text": "subject to federal civil service rules and were paid salaries competitive with those paid by private financial institutions. Though acknowledging FADA’s “undeniable public coloration,” the D.C. Circuit instead “home[d] in on the question whether FADA counts as a government instrumentality for purposes of the ERISA ‘governmental plan’ exemption ... [I]n its employment relationships—the area most relevant for ERISA purposes—FADA functioned not like a governmental agency, but like a private enterprise.” Id. at 1205-06. Examining those employment relations, the court concluded Congress did not intend the governmental plan exemption “to reach an entity that relates to its employees as would a private business—an entity whose employees are not subject to laws governing public employees generally.” Id. at 1206. This analysis and rationale encompass the facts presented here. While Mr. McGraw performs those tasks assigned to a public agency under Oklahoma law, the terms and conditions of his employment more closely resemble those of private sector employees. EMSA’s setting the professional standards and supervising the delivery of emergency services do not transform its Lifefleei/AMR personnel into governmental workers. Instead, as noted, too many other indicia of private sector employment dominate these facts. See also Hightower, 65 F.3d at 443 (employees of county hospital could not claim ERISA exemption when county hospital was leased to a private foundation which took over its operation as well as the retirement plan); NLRB v. Parents & Friends of the Specialized Living Center, 879 F.2d 1442 (7th Cir.1989) (employees of not-for-profit Illinois corporation which operated state-built, licenced, and regulated intermediate care facility could not claim exemption for their benefit plan). Thus, we hold Ms. McGrav/s Plan is not a governmental plan. ERISA then preempts the application of state law and provides “a panoply of remedial devices,” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 108, 109 S.Ct. 948, 953, 103 L.Ed.2d 80 (1989) (quoting Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 146, 105 S.Ct. 3085, 3092, 87 L.Ed.2d 96 (1985)), to assure participants and beneficiaries of benefit plans a “full and fair review” of their claims. 29 U.S.C. § 1133(2). III. REVIEW" }, { "docid": "17344361", "title": "", "text": "disability benefits plan did not qualify for ERISA’s “governmental plan” exemption. This is a legal conclusion we review de novo. Gualandi v. Adams, 385 F.3d 236, 242 (2d Cir.2004). Title I of ERISA, which “governs the Protection of Employee Benefit Rights” at issue in this dispute, Esden v. Bank of Boston, 229 F.3d 154, 173 n. 23 (2d Cir.2000) (quotations omitted), applies to “any employee benefit plan if it is established or maintained ... by any employee organization or organizations representing employees engaged in commerce or in any industry or activity affecting commerce,” 29 U.S.C. § 1003(a)(2). However, an employee benefit plan is exempt from the provisions of Title I if it qualifies as a “governmental plan.” Id. § 1003(b)(1). The parties do not dispute that unless the NRLCA benefits plan qualifies as a governmental plan, ERISA governs its administration. Title I of ERISA defines a “governmental plan” as “a plan established or maintained for its employees by the Government of the United States, by the government of any State or political subdivision thereof, or by any agency or instrumentality of any of the foregoing.” 29 U.S.C. § 1002(32). ERISA’s definition of a “governmental plan” “focuses on the public entity ... that ‘established or maintained’ the plan. ERISA deems these publicly-spawned plans to be exempt.” McGraw v. Prudential Ins. Co. of Am., 137 F.3d 1253, 1257 (10th Cir.1998) (emphasis added). The definition of a “governmental plan” also creates a disjunctive standard: “a plan need only be established or maintained by a governmental entity in order to constitute a governmental plan.” Gualandi, 385 F.3d at 242 (emphasis in original). In light of this emphasis, the issue becomes whether the USPS “established or maintained” the NRLCA disability benefits plan for its employees. It is apparent that the USPS did not “establish” the NRLCA disability benefits plan. The plan was also not the product of collective bargaining; instead, the NRLCA contracted separately with Hartford to provide disability benefits. Cf. Lovelace v. Prudential Ins. Co. of Am., 775 F.Supp. 228, 229 (S.D.Ohio 1991) (“A plan established by a government employer through collective bargaining meets" }, { "docid": "2358499", "title": "", "text": "UMIC, Inc., 580 F.Supp. 1455 (S.D.N.Y.1984). According to the IRS regulations, replacement of a plan with a comparable plan does not constitute a “termination.” 26 C.F.R. § 1.401-6(b)(l). Rose asserts that the LIRR Plan was not “established” by the LIRR within the meaning of ERISA, because the Plan for Supplemental Pensions was not formally “terminated.” Defendants argue that Rose’s interpretation is overly restrictive and inconsistent with the legislative purpose behind the governmental plan exemption. Defendant's position is consistent with Feinstein v. Lewis, which held that a benefit plan was “established” by a governmental entity even though it was created pursuant to collective bargaining, rather than by statute or other unilateral government action. In Feinstein, the district court observed that “Congress, in exempting governmental plans, was concerned more with the governmental nature of public employees and public employers than with the details of how a plan was established or maintained.” 477 F.Supp. at 1262. We agree with defendants that under the facts of this case, where the LIRR was acquired by a public entity and its former pension plan was amended in its entirety, the LIRR Plan was “established” by the LIRR. A broad reading of the term “established” — whereby a new plan may be established under ERISA without the preexisting one having been formally “terminated” — is more consistent with the legislative intent behind the governmental plan exemption. CONCLUSION The LIRR Plan under which Richard Rose was covered at the time of his death was both established and maintained for its employees by the Long Island Railroad Company. The LIRR is an agency or instrumentality of the MTA, which in turn is a political subdivision of the State of New York, within the meaning of 29 U.S.C. § 1002(32). We hold that when Mary Rose applied for benefits in 1976, the LIRR Plan was a governmental plan under 29 U.S.C. § 1003(b)(1) and therefore exempt from compliance with Title I of ERISA. The decision of the district court is hereby affirmed. . Following the 1982 remand, neither the United States nor the State of New York sought leave to" }, { "docid": "23509017", "title": "", "text": "& Admin.News 4639) (emphasis original). Although applying ERISA to public pension plans was considered, Congress was reluctant to interfere with the administration of public retirement plans due to the resulting federalism implications. H.R.Rep. No. 533, 1974 U.S.Code Cong. & Ad.News at 4647; See generally Alley v. Resolution Trust Corp., 984 F.2d 1201, 1206 (D.C.Cir.1993); Roy, 878 F.2d at 49; Rose v. Long Island R.R. Pension Plan, 828 F.2d 910, 914 (2d Cir.1987), cert. denied, 485 U.S. 936, 108 S.Ct. 1112, 99 L.Ed.2d 273 (1988); Feinstein v. Lewis, 477 F.Supp. 1256, 1261 (S.D.N.Y.1979), aff'd, 622 F.2d 573 (2d Cir.1980). 2. The Plan’s Status After the Lease The Second Circuit has explained that Congress’ goals in enacting ERISA, coupled with federalism concerns, require that “when a pension plan has been established by a governmental entity for its employees and the governmental entity’s status as employer has not changed, the plan must be exempt from ERISA as a governmental plan.” Roy, 878 F.2d at 50 (emphasis added). It follows that, in order to protect employees of publicly operated pension plans, once a governmental entity relinquishes responsibility for providing a retirement plan to a private entity, that private entity operates or maintains the existing pension plan, or any newly created pension plan, subject to the provisions of ERISA. In this case, we need only look to the lease agreement to determine whether the Plan remained exempt under Title IV. The lease agreement between the Foundation and the County states that “[fjollowing the Commencement Date, Lessee [Foundation] shall assume the retirement system for hospital employees, and shall thereafter con tinue to offer some form of retirement benefit.” Lease para. 5.4. Consequently, once the lease was executed, the Foundation assumed responsibility for the pension plan for the “hospital employees,” i.e., the Foundation’s employees. According to the district court, the Foundation, therefore, assumed the maintenance of the Plan for purposes of Title IV from the date of Commencement of the lease. The Foundation argues that this language did not require it to “maintain” the Plan; that it never executed the Adoption Agreement contemplated by the Plan itself" }, { "docid": "22985388", "title": "", "text": "of Restitution imposed; the defendant shall apply for said retirement benefits immediately.” Judgment in a Criminal Case, May 31, 1995, J.A. at 57. Comer argues that the district court erred by ordering that he forfeit his retirement fund to satisfy the court’s restitution order because ERISA § 206(d), 29 U.S.C. § 1056(d), prohibits alienation of pension funds. We review this issue only for plain error under Federal Rule of Criminal Procedure 52(b) because Comer’s attorney failed to object at the sentencing hearing to the district court’s order that Comer surrender his retirement fund to satisfy the restitution order. We reject Comer’s argument regarding the ERISA anti-alienation provision because subchapter I of ERISA, which contains the anti-alienation provision, does not apply to a “governmental plan.” 29 U.S.C. § 1003(b)(1). A “governmental plan” is defined as “a plan established or maintained for its employees by the Government of the United States, by the government of any State or political subdivision thereof, or by any agency or instrumentality of any of the foregoing....” 29 U.S.C. § 1002(32). Although a Postal Service employee is generally not considered an employee under Title 5 of the United States Code, 5 U.S.C. § 2105(e), the provisions governing retirement plans for federal employees do apply to Postal Service employees: Officers and employees of the Postal Service (other than Governors) shall be covered by chapters 83 and 84 of Title 5. The Postal Service shall withhold from pay and shall pay into the Civil Service Retirement and Disability Fund the amounts specified in or determined under such chapter 83 and subchapter II of such chapter 84, respectively. 39 U.S.C. § 1005(d)(1). Since chapters 83 and 84 of Title 5 are provisions governing the retirement system for federal employees, we assume that a Postal Service employee’s retirement fund would be treated as a “governmental plan” and therefore excluded from coverage of ERISA § 206(d), the anti-alienation provision. See also 29 U.S.C. § 1001(c) (Congressional declaration of ERISA policy “to protect ... the interests of participants in private pension plans ....” (emphasis added)). However, Title 5 also imposes restrictions on alienation" }, { "docid": "14565563", "title": "", "text": "association for the purpose of qualifying for benefits. Moideen v. Gillespie, 55 F.3d 1478, 1481 (9th Cir.1995)(citing Credit Managers Ass’n v. Kennesaw Life & Accident Ins. Co., 809 F.2d 617, 625 (9th Cir.1987)). ACWA is an organization whose members share a common concern for water issues. See Holman Deck, Ex 3-4. Unlike Credit Managers, where the employers were heterogenous and unrelated, and unlike Moideen where the organization that was open to “any business” in “any industry,” ACWA membership revolves around mutual concerns for water issues. ACWA members thus share a “commonality of interest that forms the basis for sponsorship of an employee welfare benefit plan.” Moideen, 55 F.3d at 1481 (citations omitted). Because ACWA is a group acting for, or in the interest of, an employer in relation to an employee benefit plan, it is an ERISA “employer.” 29 U.S.C. § 1002(5); accord Steen v. John Hancock Mut. Life Ins. Co., 106 F.3d 904, 916 (9th Cir.1997) (CELSOC, a trade organization of civil engineers and surveyors, is an ERISA “employer” for member employers). Accordingly, unless the ACWA Plan is excluded by one of the exceptions to ERISA coverage, the ACWA Plan is an ERISA Plan. 4. The Governmental Plan Exception Plaintiff argues that the ACWA Plan is a “governmental plan” subject to an explicit statutory exception to ERISA coverage. 29 U.S.C. § 1003(b)(1); see Silvera v. Mutual Life Ins. Co. of New York, 884 F.2d 423 (9th Cir.1989). “The term ‘governmental plan’ means a plan established or maintained for its employees by the Government of the United States, by the government of any State or political subdivision thereof, or by any agency or instrumentality of any of the foregoing.” 29 U.S.C. § 1002(32). “Like the term ‘political subdivision,’ the terms ‘agency and ‘instrumentality’ are not defined in ERISA, nor are there any regulations under ERISA which interpret these terms.” Rose v. Long Island R.R. Pension Plan, 828 F.2d 910, 917 (2d Cir.1987). The case law on ERISA plans that include both public and private employers is sparse. ACWA’s bylaws s£t forth different levels of membership and the benefits that apply" }, { "docid": "23509029", "title": "", "text": "maintained” language of section 1321(b)(2) was adopted, a governmental entity could not take over a private pension plan and qualify for an ERISA exemption. Id. at 920. Both interpretations lead to results contrary to the stated goals of the statute. Although the court did not reach the merits of this statutory quandary, Rose recognized that “the status of the entity which currently maintains a particular pension plan bears more relation to Congress’ goals in enacting ERISA and its various exemptions, than does the status of the entity which established the plan.” Id. at 920; see also Alley v. Resolution Trust Corp., 984 F.2d 1201, 1205 n. 11 (D.C.Cir.1993) (adopting a similar test based on “the core concern for ERISA purposes — the nature of an entity’s relationship to and governance of its employees.”) The Alley court also used this test to determine whether the Federal Asset Disposition Association was an “agency or instrumentality” for purposes of Title I’s governmental exemption, (citing Rose, 828 F.2d at 918); and see Silvera v. Mutual Life Insurance Co. of New York, 884 F.2d 423, 425-426 (9th Cir.1989) (Holding “ ‘Congress, in exempting governmental plans, was concerned more with the governmental nature of public employees and public employers than with the details of how a plan was established or maintained.’”) (quoting Rose, 828 F.2d at 920 (quoting Feinstein, 477 F.Supp. at 1262)). As stated above, the legislative history and purpose of this statute is improve the “fairness and effectiveness of qualified retirement plans in their vital role of providing retirement income.” H.R.Rep. No. 93-807, 1974 U.S.Code Cong. & Ad.News 4670, 4676. The main concern of Congress was to create legislation that would curb the misuse of pension funds and the resulting loss of benefits which had enured to the employees/beneficiaries of private retirement plans. H.R.Rep. No. 93-807, 1974 U.S.Code Cong. & Ad.News at 4681; and see Roy, 878 F.2d at 49 (citing H.R.Rep. No. 533, 93d Cong., 2d Sess., re printed in 1974 U.S.Code Cong. & Admin.News 4639). With the prevailing goals of ERISA at issue, the lease executed between the Foundation and the County" }, { "docid": "23401104", "title": "", "text": "for addressing the core of the inquiry: Did EMSA, a public trust established in Oklahoma to operate and furnish emergency health services for the “convenience, welfare, public health and safety” of the inhabitants of Tulsa and Oklahoma City purchase, establish or maintain the Plan? The record clearly reflects it did not. While Ms. McGraw may argue her husband’s private employment with Lifefleet, now American Medical Response of Oklahoma, Inc. (AMR), served only as a conduit for his actual employment with EMSA, that characterization ignores the fact EMSA did not establish the Plan or directly employ Mr. McGraw. Instead, Seeomerica purchased the Plan for the employees of LifefleeVAMR; LifefleeVAMR pays Mr. McGraw’s salary; and LifefleeVAMR contracts with EMSA solely to provide its personnel for EMSA’s emergency services. ' Alley v. Resolution Trust Corp., 984 F.2d 1201 (D.C.Cir.1993), parallels this case. There, employees of the then defunct Federal Asset Disposition Association (FADA) sued its receiver, the RTC, for payments due under FADA’s employee benefit plans. FADA employees operated under federal agency (FSLIG) auspices; its employees were not subject to federal civil service rules and were paid salaries competitive with those paid by private financial institutions. Though acknowledging FADA’s “undeniable public coloration,” the D.C. Circuit instead “home[d] in on the question whether FADA counts as a government instrumentality for purposes of the ERISA ‘governmental plan’ exemption ... [I]n its employment relationships—the area most relevant for ERISA purposes—FADA functioned not like a governmental agency, but like a private enterprise.” Id. at 1205-06. Examining those employment relations, the court concluded Congress did not intend the governmental plan exemption “to reach an entity that relates to its employees as would a private business—an entity whose employees are not subject to laws governing public employees generally.” Id. at 1206. This analysis and rationale encompass the facts presented here. While Mr. McGraw performs those tasks assigned to a public agency under Oklahoma law, the terms and conditions of his employment more closely resemble those of private sector employees. EMSA’s setting the professional standards and supervising the delivery of emergency services do not transform its Lifefleei/AMR personnel into governmental" }, { "docid": "5609523", "title": "", "text": "operating expenses. See id. As the parties illustrate, one could argue long and hard about FADA's score under the Rose test. However, we do not find the Rose criteria the most helpful guide. We focus our attention instead on what should be the core concern for ERISA purposes—the nature of an entity’s relationship to and governance of its employees. We note also that Rose involved an entity (the Long Island Railroad) affiliated with a state government. Concern about protecting state authority over relations with state employees was one reason for the governmental plan exemption, see Rose, 828 F.2d at 914; a Rose-style test' focusing broadly on the extent of governmental contacts may be more appropriate where state-affiliated entities are concerned. Because FADA was affiliated with the United States Government, such federalism concerns are not implicated in this case. . Cf. Krupp v. Lincoln University, 663 F.Supp. 289, 292 (E.D.Pa.1987) (holding that university, although declared an \"instrumentality of the Commonwealth\" by a Pennsylvania statute, was not a state instrumentality for purposes of ERISA's governmental plan exemption). . Summarizing ERISA's legislative history, one court has said that the \"[discussions in the congressional reports and hearings on the question of the exclusion of governmental plans are replete with such general references as 'public employee plans,’ ‘public sector plans,' ‘State and local public employee funds' and ‘plans sponsored by State and local governments.’ ” Feinstein v. Lewis, 477 F.Supp. 1256, 1261 (S.D.N.Y.1979), aff’d, 622 F.2d 573 (2d Cir.1980). . As suggested supra at note 11, the governmental plan exemption in part reflects the pronounced federalism concerns implicated by federal regulation of states’ relations with their own employees, see Feinstein, 477 F.Supp. at 1261 (discussing legislative history); again, such concerns obviously are not present here. . Our conclusion that FADA’s benefit policies were not “governmental plans\" for ERISA purposes is fortified by FIRREA provisions relating to the abolition of FSLIC and FHLBB. When Congress abolished FSLIC and FHLBB, it specifically addressed the fate of these agencies’ employees: under sections 403 and 404 of FIRREA, these employees were automatically transferred to the Federal Deposit Insurance Corporation," } ]

[ { "docid": "22648496", "title": "", "text": "enunciated in Daniels controlling here, we affirm. In Daniels, we held that the Due Process Clause of the Fourteenth Amendment is not implicated by the lack of due care of an official causing unintended injury to life, liberty, or property. In other words, where a government official is merely negligent in causing the injury, no procedure for compensation is constitutionally required. In this case, petitioner does not challenge the District Court’s finding that respondents “ ‘did not act with deliberate or callous indifference to [petitioner’s] needs,”’ 752 F. 2d, at 820. Instead, he claims only that respondents “negligently failed to protect him from another inmate.” Brief for Petitioner 2. Daniels therefore controls. Respondents’ lack of due care in this case led to serious injury, but that lack of care simply does not approach the sort of abusive government conduct that the Due Process Clause was designed to prevent. Daniels, ante, at 331-333. Far from abusing governmental power, or employing it as an instrument of oppression, respondent Cannon mistakenly believed that the situation was not particularly serious, and respondent James simply forgot about the note. The guarantee of due process has never been understood to mean that the State must guarantee due care on the part of its officials. In an effort to limit the potentially broad sweep of his claim, petitioner emphasizes that he “does not ask this Court to read the Constitution as an absolute guarantor of his liberty from assault by a fellow prisoner, even if that assault is caused by the negligence of his jailers.” Brief for Petitioner 17. Describing his claim as one of “procedural due process, pure and simple,” id., at 14, all he asks is that New Jersey provide him a remedy. But the Fourteenth Amendment does not require a remedy when there has been no “deprivation” of a protected interest. Petitioner’s claim, based on respondents’ negligence, is quite different from one involving injuries caused by an unjustified attack by prison guards themselves, see Johnson v. Glick, 481 F. 2d 1028 (CA2), (Friendly, J.), cert. denied sub nom. John v. Johnson, 414 U. S." } ]

[ { "docid": "14149766", "title": "", "text": "to the extent that Parratt had recognized negligent conduct as sufficiently culpable to constitute a deprivation under the Due Process Clause. 474 U.S. at 330-31, 106 S.Ct. at 664. The Court reiterated that § 1983 “contains no state-of-mind requirement independent of that necessary to state a violation of the underlying constitutional right.” Id. at 330, 106 S.Ct. at 664. Because the source of the underlying right allegedly violated in Daniels was the Due Process Clause, the Court looked to its text — “nor shall any State deprive any person of life, liberty, or property, without due process of law” — to determine whether that constitutional provision mandated a particular level of culpability as a prerequisite for liability. The Court noted that “the word ‘deprive’ in the Due Process Clause connote[s] more than a negligent act,” which, the Court stated, explains why the guarantee of due process has historically “been applied to deliberate decisions of government officials.” Id. at 330, 331, 106 S.Ct. at 664, 665 (emphasis in original). Emphasizing the point that mere negligent conduct does not “wor[k] a deprivation in the constitutional sense,” id. at 330, 106 S.Ct. at 664 (alteration and emphasis in original), the Court has since stated, citing Daniels, that “the Constitution does not guarantee due care on the part of state officials; liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process.” Lewis, 523 U.S. at 849, 118 S.Ct. at 1718. As noted above, we find it unnecessary in this case to determine whether Porter’s claim sounds in procedural or substantive due process. This is so in part because our conclusion regarding the level of culpability necessary to sustain a due process claim seeking damages against a state official is not dependent on the characterization of Porter’s claim. In Davidson v. Cannon, a case decided on the same day as Daniels, the Court held that “the protections of the Due Process Clause, whether procedural or substantive, are just not triggered by lack of due care.” 474 U.S. 344, 348, 106 S.Ct. 668, 671, 88 L.Ed.2d 677 (1986) (emphasis added); see Lewis," }, { "docid": "44212", "title": "", "text": "[p]laintiff had alleged enough facts to state a claim under Monell, the Complaint does not allege facts to show any actual violation of substantive or procedural due process.” Defs.’ Mem. ISO its Mot. Dismiss 39. Plaintiff does not even attempt to state a claim that the District deprived her of procedural due process — the requirement that the government must follow certain procedural requirements before it deprives individuals of protected interests. See Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Therefore, the Court will treat plaintiffs claims as falling under substantive due process only. At the outset, the Court reemphasizes that “[a]s a general matter ... a State’s failure to protect an individual against private violence simply does not constitute a violation of the due process clause.” DeShaney, 489 U.S. at 197, 109 S.Ct. 998. To allege a violation of substantive due process, plaintiff must claim that she has been deprived of a fundamental right or liberty or property interest based in the Constitution, and the government deprived such right arbitrarily, deliberately, or in a manner that shocks the contemporary conscience. See, e.g., Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 229, 106 S.Ct. 507, 88 L.Ed.2d 523 (1985) (Powell, J., concurring); County of Sacramento v. Lewis, 523 U.S. 833, 846-48, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). The Supreme Court has “made it clear that the due process clause guarantee does not entail a body of constitutional law imposing liability whenever someone cloaked with state authority causes harm.” Lewis, 523 U.S. at 848, 118 S.Ct. 1708. “[T]he Constitution does not guarantee due care on the part of state officials; liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process.” Id. The Supreme Court has “repeatedly emphasized that only the most egregious official conduct can be said to be ‘arbitrary in the constitutional sense.’ ” Id. at 846, 118 S.Ct. 1708 (quoting Collins v. Marker Heights, 503 U.S. 115, 129, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992)). The conduct must be “so egregious, so outrageous that it" }, { "docid": "14149767", "title": "", "text": "does not “wor[k] a deprivation in the constitutional sense,” id. at 330, 106 S.Ct. at 664 (alteration and emphasis in original), the Court has since stated, citing Daniels, that “the Constitution does not guarantee due care on the part of state officials; liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process.” Lewis, 523 U.S. at 849, 118 S.Ct. at 1718. As noted above, we find it unnecessary in this case to determine whether Porter’s claim sounds in procedural or substantive due process. This is so in part because our conclusion regarding the level of culpability necessary to sustain a due process claim seeking damages against a state official is not dependent on the characterization of Porter’s claim. In Davidson v. Cannon, a case decided on the same day as Daniels, the Court held that “the protections of the Due Process Clause, whether procedural or substantive, are just not triggered by lack of due care.” 474 U.S. 344, 348, 106 S.Ct. 668, 671, 88 L.Ed.2d 677 (1986) (emphasis added); see Lewis, 523 U.S. at 849, 118 S.Ct. at 1718 (noting that Cannon “clarifies] that Daniels applies to substantive, as well as procedural, due process”). On the authority of Daniels and Cannon, we hold that mere negligence or inadvertence on the part of a law enforcement official in failing to turn over Brady material to the prosecution, which in turn causes a defendant to be convicted at a trial that does not meet the fairness requirements imposed by the Due Process Clause, does not amount to a “deprivation” in the constitutional sense. Thus, a negligent act or omission cannot provide a basis for liability in a § 1983 action seeking compensation for loss of liberty occasioned by a Brady violation. C. Whether Porter Has Produced Evidence Sufficient to Show that Fairbanks’s Conduct in this Case was More than Merely Negligent and that Fairbanks’s Conduct Caused the Brady Violation Having established that a due process claim like Porter’s will not give rise to § 1983 liability in the absence of some evidence of more-than-negligent conduct on the part" }, { "docid": "22671342", "title": "", "text": "marks omitted). However, for the same reasons that the Toguchis’ deliberate indifference claim fails, their due process claim must also fad. “[L]iability for negligently inflicted harm is categorically beneath the threshold of constitutional due process.” County of Sacramento v. Lewis, 523 U.S. 833, 849, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (citations omitted); Smith v. City of Fontana, 818 F.2d 1411, 1418, n. 9 (9th Cir.1987) (“the Due Process Clause is simply not implicated by a negligent act of an official ... ”) (citation and internal quotation marks omitted) (emphasis in Smith). C. Conclusion Deliberate indifference is a high legal standard. A showing of medical malpractice or negligence is insufficient to establish a constitutional deprivation under the Eighth Amendment. See Hallett, 296 F.3d at 744 (“Mere medical malpractice does not constitute cruel and unusual punishment.”) (citation omitted); see also Wood v. Houseurright, 900 F.2d 1332, 1334 (9th Cir.1990) (stating that even gross negligence is insufficient to establish a constitutional violation). The Toguchis have not presented evidence that Dr. Chung’s decisions “den[ied], delay[ed], or intentionally interfered] with [Keane’s] medical treatment.” Hallett, 296 F.3d at 744 (citation omitted). To the contrary, the record, viewed in the light most favorable to the Toguchis, reflects that Dr. Chung was consistently responsive to Keane’s medical needs. Whether her responses were medically reasonable given Keane’s medical condition and background is a question we do not reach. Because no genuine issue of fact was raised regarding Dr. Chung’s subjective knowledge and conscious disregard of a substantial risk of serious injury to Keane, the district court properly entered summary judgment in favor of Dr. Chung on the § 1983 claim. Similarly, because a due process claim predicated upon the violation of a parent’s liberty interest in the companionship of his child requires a showing of more than negligence, entry of summary judgment in favor of Dr. Chung was also appropriate on that claim. AFFIRMED. . The manner in which Keane obtained and ingested the large amounts of diphenhydra- mine (Benadryl) and sertraline (Zoloft) is not clear. The district court noted that Keane's cellmate testified that Keane had obtained" }, { "docid": "23228342", "title": "", "text": "Due Process Clause was intended to prevent government officials from abusing their power or employing it as an instrument of oppression. See Collins v. City of Harker Heights, Tex., 503 U.S. 115, 126, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992). The cognizable level of executive abuse of power is that which “shocks the conscience,” violates the “decencies of civilized conduct” or interferes with rights “implicit in the concept of ordered liberty.” Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 209-210, 96 L.Ed. 183 (1952). Obviously, this guarantee of due process protects citizens against deliberate harm from government officials. See Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). Allegations of lesser culpability have been held adequate to state a claim in some circumstances. For example, deliberate indifference suffices to impose due process liability when government actors fail to provide adequate care for pretrial detainees with serious medical needs. See Hare v. City of Corinth, 74 F.3d 633 (5th Cir.1996)(en banc). However, harm inflicted due to government actors’ simple negligence is categorically beneath the threshold of constitutional due process. See Daniels, 474 U.S. at 328, 106 S.Ct. 662. The Supreme Court recently provided a road map for navigating mid-level-culpability due process claims. In County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), parents of a motorcycle passenger killed in a high-speed police chase brought a 42 U.S.C. § 1983 action against the officer and governmental agencies involved, alleging deprivation of their decedent’s substantive due process right to life. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 1712, 140 L.Ed.2d 1043. The Supreme Court rejected the plaintiffs contention that proof of deliberate indifference by the officer would be sufficient to establish a due process violation. Id. at 1711. “A police officer deciding whether to give chase must balance on one hand the need to stop a suspect and show that flight from the law is no way to freedom, and, on the other, the high-speed threat to everyone within stopping range, be they suspects, their passengers, other drivers or bystanders.” Id." }, { "docid": "22089939", "title": "", "text": "state a section 1983 claim for relief. If they do, however, defendants Johnson, Ma-nahan and Walling are shielded by qualified immunity from further litigation of these claims in the absence of any identified legal duty to behave otherwise or any clearly established legal rights violated by the alleged conduct. NEGLIGENCE The alleged failure by Sheriff Tietz to supervise his deputies is characterized by plaintiffs as “grossly negligent.” In addition, various plaintiffs allege that all defendants, in addition to conspiring against them, were “grossly negligent” in contributing to their prosecution and the removal of children from their homes. The Supreme Court has recently concluded that negligent conduct by state actors does not implicate any aspect of the due process clause. Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 663, 665, 666, 88 L.Ed.2d 662 (1986); Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 670, 671, 88 L.Ed.2d 677 (1986). Thus allegations that the sheriff or other defendants deprived plaintiffs of procedural or substantive due process interests through negligent or “grossly negligent” conduct does not state a claim under 42 U.S.C. § 1983. See Davidson, supra, 106 S.Ct. at 670, 671: In Daniels, we held that the Due Process Clause of the Fourteenth Amendment is not implicated by the lack of due care of an official causing unintended injury to life, liberty or property. In other words, where a government official is merely negligent in causing the injury, no procedure for compensation is constitutionally required. * * * As we held in Daniels, the protections of the Due Process Clause, whether procedural or substantive, are just not triggered by lack of due care by * * * officials. STATE LAW Certain plaintiffs have alleged that the defendants violated various provisions of state law. Some of the state legislation, such as Human Services Department regulations and a statutory provision calling for a “Tennessen warning” by social workers, do not apply to any of the defendants whose actions are before us on appeal. We examine the remaining provisions to determine whether their alleged violation bears on the immunity defenses at issue in" }, { "docid": "23033235", "title": "", "text": "of the underlying right said to have been violated’ and to [then] determine ‘whether the plaintiff has alleged a deprivation of a constitutional right at all.’ ” Id. (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 841 n. 5, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)). As we noted at the outset, the Morrows’ § 1983 claim rests on the Due Process Clause of the Fourteenth Amendment. The Due Process Clause provides that a state shall not “deprive any person of life, liberty, or property, without due process of law.” U.S. Const, amend. XIV, § 1; The Morrows invoke the substantive component of due process, which “protects individual liberty against ‘certain government actions regardless of the fairness of the procedures used to implement them.’ ” Collins v. City of Marker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992) (quoting Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986)). Specifically, the Morrows allege that school officials violated a liberty interest by failing to protect Emily and Brittany from the threats and assaults inflicted by fellow students. Like the District Court, we are sympathetic to the Morrows’ plight. Brittany and Emily were verbally, physically and— no doubt — emotionally tormented by a fellow student who was adjudicated delinquent based on her actions against the Morrow sisters. When the Morrows requested that the Defendants do something to protect Brittany and Emily from the persistent harassment and bullying, school officials responded by suggesting that the Morrows consider moving to a different school rather than removing the bully from the school. We therefore certainly understand why the Morrows would conclude that the school’s response to the abuse inflicted on their daughters was unfair and unjust. Nevertheless, our adjudication of the Morrows’ claims must be governed by Supreme Court precedent. As we shall explain, it is also guided by authoritative Supreme Court dicta. The Supreme Court has long established that “[a]s a general matter, ... a State’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.”" }, { "docid": "752833", "title": "", "text": "of Sacramento v. Lewis, 523 U.S. 833, 836-37, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (police pursuit in attempt to seize suspect does not amount to “seizure” within meaning of Fourth Amendment); California v. Hodari D., 499 U.S. 621, 626-29, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) (no seizure where show of authority during chase does not produce stop). That leaves the Fourteenth Amendment. The Supreme Court continuously has emphasized that “[t]he touchstone of due process is protection of the individual against arbitrary action of government.” Lewis, 523 U.S. at 845, 118 S.Ct. 1708 (citation omitted). It is “only the most egregious official conduct,” however, that “can be said to be ‘arbitrary in the constitutional sense.’ ” Id. at 846, 118 S.Ct. 1708 (citation omitted). Thus, to rise to “the cognizable level of executive abuse of power” that would “offend due process,” the conduct complained of must be such that it “ ‘shocks the conscience’ and violates the ‘decencies of civilized conduct.’ ” Id. (citation omitted). As the Supreme Court in Lewis went on to explain: [T]he Constitution does not guarantee due care on the part of state officials; liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process.... It is, on the contrary, behavior at the other end of the culpability spectrum that would most probably support a substantive due process claim; conduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level. Id. at 849, 118 S.Ct. 1708 (internal citations omitted) (citing Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986) (“Historically, this guarantee of due process has been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property.”) (emphasis in original)). As such, “only a purpose to cause harm unrelated to the legitimate object of arrest will satisfy the element of arbitrary conduct shocking to the conscience,” that is necessary to establish a substantive due process violation. Lewis, 523 U.S. at 836, 118 S.Ct. 1708. Here, though," }, { "docid": "3503892", "title": "", "text": "a motion for summary judgment. See Cox v. Hainey, 391 F.3d 25, 29 (1st Cir.2004). B. Substantive Due Process. The Fourteenth Amendment prohibits a state from depriving any person of “life, liberty, or property, without due process of law.” U.S. Const, amend. XIV, § 1. That proscription applies fully to a state’s political subdivisions, including municipalities and municipal agencies. Home Tel. & Tel. Co. v. City of Los Angeles, 227 U.S. 278, 286-87, 33 S.Ct. 312, 57 L.Ed. 510 (1913). The touchstone of this due process guarantee is the “protection of the individual against arbitrary action of government.” Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). The Due Process Clause has both procedural and substantive components. In its procedural aspect, due process ensures that government, when dealing with private persons, will use fair procedures. See, e.g., Fuentes v. Shevin, 407 U.S. 67, 80-82, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). In its substantive aspect, due process safeguards individuals against certain offensive government actions, notwithstanding that facially fair procedures are used to implement them. Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). This case involves only the latter branch of the Due Process Clause. As the Supreme Court recently has explained, the criteria used for identifying government action proscribed by the constitutional guarantee of substantive due process vary depending on whether the challenged action is legislative or executive in nature. County of Sacramento v. Lewis, 523 U.S. 833, 846, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). In the realm of executive action, the Due Process Clause “does not entail a body of constitutional law imposing liability whenever someone cloaked with state authority causes harm,” nor does it “guarantee due care” by government officials. Id. at 848-49, 118 S.Ct. 1708. This is as it should be; were the law otherwise, the Constitution would be downgraded to a “font of tort law.” Id. at 848, 118 S.Ct. 1708 (quoting Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976)). Consequently, an abuse of power practiced by the" }, { "docid": "22929879", "title": "", "text": "would find necessary to making an informed decision regarding treatment options. ii. Defendants’ State of Mind Inadvertent failures to impart medical information cannot form the basis of a constitutional violation. The simple lack of due care does not make out a violation of either the substantive or procedural aspects of the Due Process Clause of the Fourteenth Amendment. Davidson v. Cannon, 474 U.S. 344, 348, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986); Daniels v. Williams, 474 U.S. 327, 332, 106 S.Ct. 677, 88 L.Ed.2d 662 (1986). In County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), the Supreme Court considered what sort of executive action could qualify as a substantive due process violation. In that case, the parents of a motorcycle passenger killed in a high-speed police chase brought a § 1983 claim alleging deprivation of their son’s substantive due process right to life. Id. at 837, 118 S.Ct. 1708. The Court began its analysis by reiterating that “ ‘the touchstone of due process is protection of the individual against arbitrary action of government.’ ” Id. at 845, 118 S.Ct. 1708(quoting Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974)) (alteration marks omitted). In the context of executive action, this means that the Due Process Clause is offended only if the government’s abuse of power “shocks the con science.” Id. at 846, 118 S.Ct. 1708; see also id. at 847 n. 8, 118 S.Ct. 1708 (1998) (“[T]he threshold question is whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.”). In determining that injuries caused by high-speed chases do not give rise to Fourteenth Amendment liability unless the officers intend to harm the injured party, County of Sacramento recognized that the requisite state of mind for action by an executive official to satisfy the “shocks the conscious” test will vary according to the circumstances. Id. at 849-51, 118 S.Ct. 1708. Exigent circumstances, such as when prison officials are faced with a riot or when police encounter" }, { "docid": "44213", "title": "", "text": "right arbitrarily, deliberately, or in a manner that shocks the contemporary conscience. See, e.g., Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 229, 106 S.Ct. 507, 88 L.Ed.2d 523 (1985) (Powell, J., concurring); County of Sacramento v. Lewis, 523 U.S. 833, 846-48, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). The Supreme Court has “made it clear that the due process clause guarantee does not entail a body of constitutional law imposing liability whenever someone cloaked with state authority causes harm.” Lewis, 523 U.S. at 848, 118 S.Ct. 1708. “[T]he Constitution does not guarantee due care on the part of state officials; liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process.” Id. The Supreme Court has “repeatedly emphasized that only the most egregious official conduct can be said to be ‘arbitrary in the constitutional sense.’ ” Id. at 846, 118 S.Ct. 1708 (quoting Collins v. Marker Heights, 503 U.S. 115, 129, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992)). The conduct must be “so egregious, so outrageous that it may fairly be said to shock the contemporary conscience.” Id. at 847 n. 8, 118 S.Ct. 1708. For government actions to rise to the level of a Constitutional violation, they must consist of “deliberate decisions of government officials to deprive a person of life, liberty, or property.” Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986) (emphasis in original). This Court has previously rejected plaintiffs claims that the District’s conduct “shocked the conscience” and will not belabor that discussion here. The Court finds that the District has not engaged in acts “shocking the contemporary conscience” for the reasons stated in supra Part IV.A and Part IV.B.4. Furthermore, plaintiff has not alleged that the District engaged in any deliberate decisions to deprive plaintiff or decedent of their constitutional rights. Therefore, plaintiff has failed to allege facts that could support a finding of either a substantive or procedural due process violation. The Court will dismiss all plaintiffs claims against the District of Columbia under Count One without prejudice. 2. Plaintiff’s Count Six" }, { "docid": "17455498", "title": "", "text": "harm. In DeSha- ney v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), the Supreme Court declared that “nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors,” id. at 195, 109 S.Ct. 998. In the same breath, however, the Court also recognized that there may be circumstances in which the government must provide protection because it “played [a] part in the[ ] creation” of a dangerous situation or did something “to render [an individual] more vulnerable to” a pre-exist-ing danger. Id. at 201, 109 S.Ct. 998. It is when “the state has affirmatively placed the plaintiff’ in harm’s way that a reciprocal duty to protect may attach. Ketchum v. Alameda County, 811 F.2d 1243, 1247 (9th Cir.1987) (emphasis added). But inherent in our characterization of the state-created danger doctrine as an “exception” to the ordinary rule, see Patel v. Kent Sch. Dist., 648 F.3d 965, 972 (9th Cir.2001), is the principle that the government does not violate the Constitution “whenever someone cloaked with state authority causes harm,” County of Sacramento v. Lewis, 523 U.S. 833, 848, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). The substantive component of the Due Process Clause only prevents the state from engaging in conduct “intended to injure in some way unjustifiable by any government interest.’’ Id, at 849, 118 S.Ct. 1708. “[0]nly the most' egregious official conduct” crosses the constitutional line so as .to constitute a deprivation of due process. Id. at 846, 118 S.Ct. 1708. To this end, we have made clear that gross negligence on the part of the government actor is not enough. Patel, 648 F.3d at 974; L.W. v. Grubbs (“Grubbs II), 92 F.3d 894, 900 (9th Cir.1996); see also Lewis, 523 U.S. at 849, 118 S.Ct. 1708 (“[Liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process.”). As the opinion observes, an individual can recover on a § 1983 claim under the state-created danger doctrine only by showing that" }, { "docid": "4367504", "title": "", "text": "remaining defendants, the court finds that their conduct does not rise to the level of a constitutional violation actionable under § 1988. Dr. Terry Allen and Michelle Hebert’s statistical analysis and conclusions may have been negligent, but they do not meet the requirements of a constitutional violation. “[Liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process.” County of Sacramento v. Lewis, 523 U.S. 833, 849, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). The same is true for the other defendants, the evidence presented by plaintiff may support a cause of action for negligence, but is not sufficient to maintain a § 1983 action. In sum, plaintiff may only maintain her § 1983 malicious prosecution/due process claims against defendants Kroll and Wright. 3. Substantive Due Process “The standard for judging a substantive due process claim is whether the challenged government action would ‘shock the conscience of federal judges.’ ” Livsey v. Salt Lake County, 275 F.3d 952, 957 (10th Cir.2001). “[P]laintiff must do more than show the government actor intentionally or recklessly caused injury to the plaintiff by abusing or misusing government power ... it must demonstrate a degree of outra-geousness and a magnitude of potential or actual harm that is truly conscience shocking.” Id. (quoting Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 528 (10th Cir.1998)). The court finds that under the totality of the circumstances, plaintiff has not produced evidence sufficient to create a factual dispute that would prevent summary judgment as to the substantive due process claim. See Oliver, 510 U.S. at 268, 114 S.Ct. 807 (“Petitioner asks us to recog nize a substantive right under the Due Process Clause of the Fourteenth Amendment to be free from criminal prosecution except upon probable cause. We decline to do so.”). Therefore, plaintiffs cause of action alleging a substantive due process violation is dismissed. 4. Retaliation “An act taken in retaliation for the exercise of a constitutionally protected right is actionable under § 1988 even if the act, when taken for a different reason, would have been proper.” Poole v. County of Otero, 271" }, { "docid": "22671341", "title": "", "text": "837, 114 S.Ct. 1970. Finally, Dr. Chung did not believe that Keane had access to contraband while in prison, and therefore did not consider that Keane’s bizarre behavior could be the result of a drug overdose. It does not matter whether Dr. Chung’s assumptions and conclusipns were reasonable. Rather, so long as she was not subjectively aware of the risk that Keane could be suffering from a drug overdose, and disregarded that risk, she was not deliberately indifferent. Farmer, 511 U.S. at 837, 114 S.Ct. 1970. B. The Toguchis’ Due Process Claim Mr. and Mrs. Toguchi sought damages for a violation of their constitutionally protected liberty interest in the companionship and society of their son. “It is well established that a parent has a fundamental liberty interest in the companionship and society of his or her child and that the state’s interference with that liberty interest without due process of law is remediable under 42 U.S.C. § 1983.” Lee v. City of Los Angeles, 250 F.3d 668, 685 (9th Cir.2001) (citation, alterations and internal quotation marks omitted). However, for the same reasons that the Toguchis’ deliberate indifference claim fails, their due process claim must also fad. “[L]iability for negligently inflicted harm is categorically beneath the threshold of constitutional due process.” County of Sacramento v. Lewis, 523 U.S. 833, 849, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (citations omitted); Smith v. City of Fontana, 818 F.2d 1411, 1418, n. 9 (9th Cir.1987) (“the Due Process Clause is simply not implicated by a negligent act of an official ... ”) (citation and internal quotation marks omitted) (emphasis in Smith). C. Conclusion Deliberate indifference is a high legal standard. A showing of medical malpractice or negligence is insufficient to establish a constitutional deprivation under the Eighth Amendment. See Hallett, 296 F.3d at 744 (“Mere medical malpractice does not constitute cruel and unusual punishment.”) (citation omitted); see also Wood v. Houseurright, 900 F.2d 1332, 1334 (9th Cir.1990) (stating that even gross negligence is insufficient to establish a constitutional violation). The Toguchis have not presented evidence that Dr. Chung’s decisions “den[ied], delay[ed], or intentionally interfered]" }, { "docid": "22474256", "title": "", "text": "has always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended. The doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field.”) (internal citation omitted). “The Due Process Clause was intended to prevent government officials from abusing their power, or employing it as an instrument of oppression.” County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 1716, 140 L.Ed.2d 1043 (1998) (internal quotations and citations omitted). The substantive component of the Due Process Clause “protects individual liberty against ‘certain government actions regardless of the fairness of the procedures used to implement them.’ ” Collins, 112 S.Ct. at 1068 (quoting Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 665, 88 L.Ed.2d 662 (1986)). But the Fourteenth Amendment must not be used through section 1983 as a “font of tort law” to convert state tort claims into federal causes of action. See Neal ex rel. Neal v. Fulton County Bd. of Educ., 229 F.3d 1069, 1074 (11th Cir.2000). “Nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State’s power to act, not as a guarantee of certain minimal levels of safety and security.” DeShaney v. Winnebago County Dep’t of Soc. Sens., 489 U.S. 189, 109 S.Ct. 998, 1002-07, 103 L.Ed.2d 249 (1989). For a while, this Court had concluded that state and local government entities could be held liable for substantive due process violations for their failure to protect victims from harm caused by third parties where the state, through its affirmative acts, put the victim in “special danger” of harm. See Cornelius v. Town of Highland Lake, Ala., 880 F.2d 348 (11th Cir.1989). In White v. Lemacks, 183 F.3d 1253, 1257-59 (11th Cir.1999), we concluded, however, that the “special relationship” and “special danger” doctrines were super-ceded by the standard employed by the Supreme Court" }, { "docid": "23033234", "title": "", "text": "Fox Rothschild LLP, 615 F.3d 159, 163 (3d Cir.2010). “Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds that plaintiffs claims lack facial plausibility.” Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir.2011). Although we must accept the allegations in the complaint as true, “we are not compelled to accept unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegation.” Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir.2007) (citations and internal quotation marks omitted). III. DISCUSSION To state a claim under 42 U.S.C. § 1983, a plaintiff must allege a person acting under color of state law engaged in conduct that violated a right protected by the Constitution or laws of the United States. Nicini v. Morra, 212 F.3d 798, 806 (3d Cir.2000) (en banc). Accordingly, “[t]he first step in evaluating a section 1983 claim is to ‘identify the exact contours of the underlying right said to have been violated’ and to [then] determine ‘whether the plaintiff has alleged a deprivation of a constitutional right at all.’ ” Id. (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 841 n. 5, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)). As we noted at the outset, the Morrows’ § 1983 claim rests on the Due Process Clause of the Fourteenth Amendment. The Due Process Clause provides that a state shall not “deprive any person of life, liberty, or property, without due process of law.” U.S. Const, amend. XIV, § 1; The Morrows invoke the substantive component of due process, which “protects individual liberty against ‘certain government actions regardless of the fairness of the procedures used to implement them.’ ” Collins v. City of Marker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992) (quoting Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986)). Specifically, the Morrows allege that school officials violated a liberty interest by failing to protect Emily and" }, { "docid": "2212421", "title": "", "text": "Plaintiffs have not stated a Fifth Amendment due process claim on behalf of Mr. Khan or 'Abdulrahman Al-Aulaqi. Mr. Khan and Abdulrahman Al-Aulaqi were not targeted and their deaths were unanticipated. In fact, Plaintiffs’ due process claim on behalf of Mr. Khan and Abdulrahman Al-Aulaqi asserts only negligence, i.e., that the Government should have taken better care to avoid harming them as bystanders. See Compl. ¶ 5 (“If the Defendants were targeting others, they had an obligation under the Constitution and international human rights law to take measures to prevent harm to Samir Khan, Abdulrahman Al-Aulaqi, and other bystanders.”). Mere negligence does not give rise to a constitutional deprivation. Daniels, 474 U.S. at 331-32, 106 S.Ct. 662; accord Davidson v. Cannon, 474 U.S. 344, 347-48, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986) (the due process clause, whether procedural or substantive, is not triggered by the lack of due care of an official causing unintended injury to life, liberty, or property). “[T]he Constitution does not guarantee due care on the part of state officials; liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process.” Cnty. of Sacramento, 523 U.S. at 849, 118 S.Ct. 1708. Accordingly, the Fifth Amendment claims asserted on behalf of Mr. Khan and Abdulrahman Al-Aulaqi will be dismissed for failure to state a claim. In contrast, with regard to An-war Al-Aulaqi, Plaintiffs allege both procedural and substantive due process claims. They allege a procedural claim by asserting that Anwar Al-Aulaqi was executed without charge, indictment, or prosecution. See Compl. ¶ 26. They also allege a substantive due process claim by asserting that Defendants killed Anwar Al-Aula-qi with deliberate indifference to his constitutional right to life, both outside of armed conflict and at a time when he did not present a concrete, specific, and imminent threat to the United States. See id. ¶¶ 4, 24, 33-34. The Court does not opine that Anwar Al-Aulaqi was entitled to notice and a predeprivation hearing, or that his Estate was entitled to a postdeprivation hearing, or that the drone killing of Anwar Al-Aulaqi “shocks the conscience.” The Court" }, { "docid": "2877607", "title": "", "text": "negligence.”); Daniels v. Williams, 474 U.S. 327, 331-33, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986) (stating that \"injuries inflicted by governmental negligence are not addressed by the United States Constitution” and rejecting § 1983 claim based on alleged due process violation under Fourteenth Amendment); Hudson v. Palmer, 468 U.S. 517, 531, 104 S.Ct. 3194, 82 L.Ed.2d 393( 1984) (\"[T]he Due Process Clause of the Fourteenth Amendment is not violated when a state employee negligently deprives an individual of property.... ”); Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) (“Allegations of negligence or innocent mistake are insufficient [to state a claim under the Fourth Amendment].”); Pena v. DePrisco, 432 F.3d 98, 112 (2d Cir.2005) (\"In order to establish a violation of a right to substantive due process, a plaintiff must demonstrate not only government action but also that the government action was 'so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.' [T]he Fourteenth Amendment is not a ‘font of tort law.’ ... It does not provide a comprehensive scheme for determining the propriety of official conduct or render all official misconduct actionable.... ‘[Negligently inflicted harm is categorically beneath the threshold of constitutional due process.’ ”) [citations omitted]; Riddick v. Modeny, 250 Fed.Appx. 482, 483 (3d Cir.2007) (\"The protections afforded prisoners by the Due Process Clause of the Fourteenth Amendment are not triggered by the mere negligence of prison officials.”); Billington v. Smith, 292 F.3d 1177, 1190 (9th Cir.2002); (\"The Fourth Amendment’s ‘rea sonableness' standard is not the same as the standard of ‘reasonable care’ under tort law, and negligent acts do not incur constitutional liability.”); Myers v. Okla. County Bd. of County Com’rs, 151 F.3d 1313, 1320 (10th Cir.1998) (\"[A]ctions leading to a confrontation, such as the decision to enter the apartment, must be more than merely negligent to be \"unreasonable” for purposes of the Fourth Amendment inquiry.”); Madiwale v. Savaiko, 117 F.3d 1321, 1326 (11th Cir.1997) (\"Negligent or innocent mistakes do not violate the Fourth Amendment.”); Sevier v. City of Lawrence, Kan., 60 F.3d 695, 699, n. 7" }, { "docid": "17455499", "title": "", "text": "is the principle that the government does not violate the Constitution “whenever someone cloaked with state authority causes harm,” County of Sacramento v. Lewis, 523 U.S. 833, 848, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). The substantive component of the Due Process Clause only prevents the state from engaging in conduct “intended to injure in some way unjustifiable by any government interest.’’ Id, at 849, 118 S.Ct. 1708. “[0]nly the most' egregious official conduct” crosses the constitutional line so as .to constitute a deprivation of due process. Id. at 846, 118 S.Ct. 1708. To this end, we have made clear that gross negligence on the part of the government actor is not enough. Patel, 648 F.3d at 974; L.W. v. Grubbs (“Grubbs II), 92 F.3d 894, 900 (9th Cir.1996); see also Lewis, 523 U.S. at 849, 118 S.Ct. 1708 (“[Liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process.”). As the opinion observes, an individual can recover on a § 1983 claim under the state-created danger doctrine only by showing that the state officials in question acted with “deliberate indifference” to a “known or obvious danger” that they had an affirmative role in subjecting the plaintiff to. Patel, 648 F.3d at 974; Grubbs II, 92 F.3d at 900. As my concurring colleague notes, Collins v. City of Harker Heights, 503 U.S. 115, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992), on which defendants primarily rely, does hot itself speak to the scope of the state-created danger doctrine. Nevertheless, it is easy to situate its holding within the aforementioned framework. In Collins, the Supreme Court applied the general rule that state actors are liable only for actions that violate constitutional rights, not omissions, and concluded that the Due Process Clause does not impose a freestanding duty upon a municipality to provide its employees with certain minimal working conditions. 503 U.S. at 125-30, 112 S.Ct. 1061; cf. Deshaney, 489 U.S. at 195, 109 S.Ct. 998 (“The [Due Process] Clause is phrased as a limitation on the State’s power to act, not as a guarantee of certain minimal levels of" }, { "docid": "22474255", "title": "", "text": "party with drug dealers, and his lack of supervision. Plaintiffs argue that Garnto was an agent for HCSO and that the district court erred by concluding that Garnto’s “independent act” of drinking and driving insulated Defendants from their misconduct. We review a district court’s decision to grant summary judgment de novo, viewing the evidence and all reasonable inferences in the light most favorable to the nonmoving party. Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000). Federal Rule of Civil Procedure 56(c) provides that summary judgment shall be granted, “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). We must take seriously the Supreme Court’s caution against expanding the concept of substantive due process. See Collins v. City of darker Heights, Tex., 503 U.S. 115, 112 S.Ct. 1061, 1068, 117 L.Ed.2d 261 (1992) (“[T]he [Supreme] Court has always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended. The doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field.”) (internal citation omitted). “The Due Process Clause was intended to prevent government officials from abusing their power, or employing it as an instrument of oppression.” County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 1716, 140 L.Ed.2d 1043 (1998) (internal quotations and citations omitted). The substantive component of the Due Process Clause “protects individual liberty against ‘certain government actions regardless of the fairness of the procedures used to implement them.’ ” Collins, 112 S.Ct. at 1068 (quoting Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 665, 88 L.Ed.2d 662 (1986)). But the Fourteenth Amendment must not be used through section 1983 as a “font of tort law” to convert state tort claims into federal causes of action. See Neal ex rel. Neal v. Fulton" } ]

[ { "docid": "23156921", "title": "", "text": "of Internal Revenue, 250 F.2d 242, 249 (5th Cir. 1957), cert. denied, 356 U.S. 950, 78 S.Ct. 915, 2 L.Ed.2d 844 (1958) (same). See also Paschal v. Blieden, supra (bankruptcy). . In attacking state tax assessments as unconstitutional, the taxpayer must show the assessment to be arbitrary by “dear and convincing evidence.” In re Lang Body Co., 92 F.2d 338, 341 (6th Cir. 1937), cert. denied sub nom. Hipp v. Boyle, 303 U.S. 637, 58 S.Ct. 522, 82 L.Ed. 1097 (1938). . Molitor was actually not the taxpayer, but the employer. However, his liability for the statutory penalty, see Int.Rev. Code of 1954 § 6672, is treated like the liability of a taxpayer. See 337 F.2d at 924. . On the other hand, the taxpayer is in an equally advantageous position as to proof of fraud, whether the action is one to review a deficiency, Int.Rev.Code of 1954 § 7454, to recover a refund, see Paddock v. United States, 280 F.2d 563 (2d Cir. 1960), or to collect a tax liability, as here. In all such proceedings, the Government must prove fraud by clear and convincing evidence. . There is no question in this case about the propriety of the charge that the taxpayer need only establish that the assessment is erroneous, and the Government must prove the precise amount owing. In a refund case, the rule is apparently otherwise, the taxpayer being required to prove the amount of the refund due. See Compton v. United States, 334 F.2d 212, 216 (4th Cir. 1964); 10 Mertens, Federal Income Taxation § 58A.35 n. 15 (Zimet rev. 1964). Compare United States v. Sampsell, 224 F.2d 721, 723 (9th Cir. 1955) (bankruptcy). . In a criminal ease the Government, of course, has the traditional burden of persuasion beyond a reasonable doubt, and a mere assessment cannot there play the same role in proving the Government’s ease. See Price v. United States, supra, 335 F.2d at 677. . We find no merit in Lease’s additional argument that the presumption of correctness exists only with respect to performance of official acts by adjudicative officers and" } ]

[ { "docid": "435405", "title": "", "text": "of the tax as a condition precedent to the taking of additional steps to enforce its collection and payment. Thus, in the usual case the Code contemplates the giving of two notices by the Government, first, the notice required by § 6212(a) of a deficiency, and the notice required by § 6303(a) of assessment and demand for payment. The notice of deficiency is specified to be by registered mail (26 U.S.C.A. § 6212(a)), while no such restriction is applicable to the notice of assessment and demand for payment (26 U.S.C.A. § 6303(a)). In recognition that during the time required to carry out the usual method of making a deficiency assessment taxpayers may in certain instances defeat collection of the tax, the Code also provides for an accelerated procedure, i. e., a jeopardy assessment. The jeopardy assessment is authorized by § 6861 of the Code, 26 U.S.C.A. § 6861, but the jeopardy assessment, if made before any notice of a deficiency, must, by § 6861(b), be followed by the notice required by § 6212(a), 9 Mertens, Law of Federal Income Taxation, § 49.146. As has been shown, notice under § 6212(a) must be by registered mail. Stated otherwise, even though a jeopardy assessment is made, two notices to the taxpayer are still required, one of which must be by registered mail. The failure to send notice by registered mail in compliance with § 6212(a) is fatal to a jeopardy assessment, during the period that § 6212(a) permitted only notice by registered mail, 9 Mertens, Law of Federal Income Taxation, §§ 49.133, 49.146. Contra, Cohen v. United States, 297 F.2d 760, 773 (9 Cir. 1962) (dictum). It seems clear in this case that the taxpayer was proceeded against by the jeopardy assessment route. The validity of the tax lien to serve as a basis for the judgment granted here depends upon whether the notice requirements of § 6212(a) were met, because 26 U.S.C.A. §§ 6321 and 6322, which create tax liens, require, inter alia, a valid assessment. It has been stipulated that a notice pursuant to § 6303 was sent by certified" }, { "docid": "4208256", "title": "", "text": "parties to contest the merits of a tax assessment. In fact, the contrary has been decisively indicated. Falik v. United States, 343 F.2d 38, 41 (2nd Cir. 1965); Graham v. United States, 243 F. 2d 919, 922 (9th-Cir. 1957). In Falik, Judge Friendly wrote: “ * * * And we conclude that under the 1931 statute a junior lienor could not have questioned the essential validity of an assessment underlying a senior Government tax lien.” (343 F.2d p. 41) In Graham, Judge Bone wrote: “We believe that only the taxpayer may question the assessment for taxes, and assert noncompliance by the Commissioner in sending the taxpayer a notice of deficiency by registered mail. * * * This right to review the tax deficiency assessment seems to us to be peculiarly personal to the taxpayer * * *. A tax assessment may not be collaterally attacked. Commercial Credit Corporation v. Schwartz, D.C. E.D.Ark.1954, 126 F.Supp. 728, 730, and eases there cited. * * * ” (243 F.2d p. 922) Third, Annabelle contends that the United States is estopped from asserting the alleged priority of its liens because it prevented her from perfecting her liens. While it is true that on February 13, 1962 an injunction was issued against the defendant Arden H. Rathkopf from commencing or prosecuting any action or judicial proceeding in relation to the interest of Harlow in the testamentary trust involved here, no such injunction has been issued against Annabelle. Whatever reasons Annabelle may have had for not pursuing her remedies, as hereinafter appears, the United States did not prevent her from doing so. Reliance on any claim of estoppel is, therefore, misplaced. I next proceed to the five defenses and “counterclaims” raised by defendant Annabelle to the claims of the United States. FIRST AFFIRMATIVE DEFENSE AND COUNTERCLAIM The answer asserts that defendant Annabelle secured a divorce from defendant Harlow in the District Court of the Virgin Islands (apparently the United States District Court) on December 28, 1954, that the decree provided for recovery by her of $16,360 and contained a direction to pay Annabelle $1,000 each month" }, { "docid": "11170955", "title": "", "text": "Rodgers, 461 U.S. 677, 682, 103 S.Ct. 2132, 2137, 76 L.Ed.2d 236 (1983); United States v. First National City Bank, 568 F.2d 853 (2d Cir.1977). Moreover, it is well established that the ÍRS’ determination of a tax deficiency is presumed to be correct, and the burden of overcoming this presumption is on the taxpayer. See United States v. Rindskopf, 105 U.S. 418, 26 L.Ed. 1131 (1882); DeLorenzo v. United States, 555 F.2d 27, 29 (2d Cir.1977); Lesser v. United States, 368 F.2d 306, 310 (2d Cir.1966) (en banc). Where the Government places the assessment in evidence and the taxpayer fails to raise a material issue of fact, the Government is entitled to summary disposition. See United States v. Pierce, 609 F.2d 407 (9th Cir.1979); United States v. Mauro, 243 F.Supp. 413 (S.D.N.Y.1965). Thus, summary judgment may be granted even though none of the facts underlying the assessment of a federal tax is specifically presented to the Court. See, e.g., Mauro, supra at 415. In the present case, the IRS made an assessment against Barretto for the taxable year ending December 31, 1976 representing federal income taxes owed plus interest and statutory additions. Barretto has raised no material issue of fact concerning the propriety of this assessment. Rather, Barretto disputes the Government’s assertion that he filed a petition in the tax court. Barretto alleges that he “did not filed [sic] or request to file any petition in the United States Tax Court challenging the Internal Revenue Services notice of deficiency____” Barretto Memorandum of Law at 2. Barretto asks this Court to dismiss the Government’s claim that the tax assessment be reduced to judgment for “lack of evidence.” Plaintiff appears to be contesting the jurisdiction of the tax court over him. See United States v. Jenkins, 780 F.2d 518 (5th Cir.1986). However, even if the tax court did not have jurisdiction over Barretto, this simply means that the tax court’s decision is not given res judicata effect in this Court and Barretto may challenge the merits of the tax assessment against him. Nevertheless, Barretto has failed to articulate any inaccuracy in the" }, { "docid": "4208255", "title": "", "text": "considered subsequent to the government’s liens. If the government’s liens, though seemingly prior, are invalid, the defendants will be left as they were and the United States will be out of the case. In both instances, the government will have received that to which it is entitled, and Annabelle will have the opportunity to press her claims against the other defendants. But there is no sense whatsoever in allowing Annabelle to continue as a defendant as against the United States when she does not, as the government contends and as hereinafter appears, have a claim prior to those of the United States. Second, Annabelle contends that she has standing to contest the validity of the government’s assessments against her former husband, Harlow, and that, accordingly, summary judgment dismissing her defenses and counterclaims may not be granted in favor of the United States before she has had opportunity at trial to contest the validity of the tax assessments. This claim is without merit. Neither the Internal Revende Code nor the decisions support any right of third parties to contest the merits of a tax assessment. In fact, the contrary has been decisively indicated. Falik v. United States, 343 F.2d 38, 41 (2nd Cir. 1965); Graham v. United States, 243 F. 2d 919, 922 (9th-Cir. 1957). In Falik, Judge Friendly wrote: “ * * * And we conclude that under the 1931 statute a junior lienor could not have questioned the essential validity of an assessment underlying a senior Government tax lien.” (343 F.2d p. 41) In Graham, Judge Bone wrote: “We believe that only the taxpayer may question the assessment for taxes, and assert noncompliance by the Commissioner in sending the taxpayer a notice of deficiency by registered mail. * * * This right to review the tax deficiency assessment seems to us to be peculiarly personal to the taxpayer * * *. A tax assessment may not be collaterally attacked. Commercial Credit Corporation v. Schwartz, D.C. E.D.Ark.1954, 126 F.Supp. 728, 730, and eases there cited. * * * ” (243 F.2d p. 922) Third, Annabelle contends that the United States" }, { "docid": "9377787", "title": "", "text": "that the merchandise be “income producing.” It does not say that it must contribute to income in a substantial amount. . Cost of Caskets Cash Basis Caskets as a Year Purchased Receipts % of Receipts 1961 $17,074.59 $121,102.12 14.1 1962 16,240.17 113,506.86 14.3 1963 20,052.83 129,898.72 15.4 1964 16,330.89 120,209.64 13.6 1965 17,883.39 121,574.92 14.7 . The Tax Court, in a variety of contexts, has recognized that the presence of inventories does not necessarily mean that the cash basis does not clearly re-’ fleet income. See, e. g., Ezo Products Co., 37 T.O. 385, 393 (1961); Estate of Howard T. Roe, 36 T.O. 939, 952 (1961); Michael Drazen, supra, at 1079; Stanford R. Brookshire, 31 T.O. 1157, 1166 (1959), affd, 273 F.2d 638 (4th Cir.), cert, denied, 363 U.S. 827, 80 S.Ot. 1597, 4 L.Ed.2d 1523 (1960); Theodore H. Beckman, 8 B.T.A. 830, 831 (1927); 2 J. Mertens, Law of Federal Income Taxation § 16.03, at 6 (Malone rev. ed. 1967); contra Harry Hartley, 23 T.C. 353, 358 (1954). . Year Accrual Cash 1961 $120,284.66 $121,102.12 1962 117,413.78 113,506.86 1963 127,803.92 129,898.72 1964 115,994.42 120,209.64 1965 125,584.68 121,574.92 . Questions were raised at trial concerning taxpayer’s reconstruction of accrual income, particularly with respect to its treatment of bad debts and receivables and the failure to adjust its figures for inventory but in light of our disposition of the case, we need not determine the validity of these calculations. . Caldwell v. Commissioner, 202 F.2d 112 (2d Cir. 1953); Peterson Produce Co. v. United States, 205 F.Supp. 229, 243 (W.D.Ark.1962), aff'd, 313 F.2d 609 (8th Cir. 1963); Boynton v. Pedrick, 136 F.Supp. 888, 889 (S.D.N.Y.1954), aff'd, 228 F.2d 745 (2d Cir. 1955), cert. denied, 351 U.S. 938, 76 S.Ct. 835, 100 L.Ed. 1465 (1956); but see Glenn v. Kentucky Color & Chem. Co., 186 F.2d 975 (6th Cir. 1951); Osterloh v. Lucas, 37 F.2d 277, 278 (9th Cir. 1930) ; Barker v. United States, 26 F.Supp. 1004 (Ct.Cl.1939)." }, { "docid": "435406", "title": "", "text": "Law of Federal Income Taxation, § 49.146. As has been shown, notice under § 6212(a) must be by registered mail. Stated otherwise, even though a jeopardy assessment is made, two notices to the taxpayer are still required, one of which must be by registered mail. The failure to send notice by registered mail in compliance with § 6212(a) is fatal to a jeopardy assessment, during the period that § 6212(a) permitted only notice by registered mail, 9 Mertens, Law of Federal Income Taxation, §§ 49.133, 49.146. Contra, Cohen v. United States, 297 F.2d 760, 773 (9 Cir. 1962) (dictum). It seems clear in this case that the taxpayer was proceeded against by the jeopardy assessment route. The validity of the tax lien to serve as a basis for the judgment granted here depends upon whether the notice requirements of § 6212(a) were met, because 26 U.S.C.A. §§ 6321 and 6322, which create tax liens, require, inter alia, a valid assessment. It has been stipulated that a notice pursuant to § 6303 was sent by certified mail, but that notice is not made part of the record, and any other notice which may have been sent in compliance with § 6212(a) is not made part of the record or referred to therein. The full text of the pertinent portions of the stipulation is set forth in the margin. Appellee contends (1) that the stipulation, by asserting that the assessment remains “due and owing” necessarily admits its validity, so that no issue of the validity of notice is presented to this Court, but, in any event, (2) that appellants failed to raise any question as to the validity of notice in the lower court so that that issue is foreclosed here. We reject both of appellee’s contentions. The stipulation nowhere expressly reflects an agreement that the assessment was valid; nor do we construe the stipulation to have this effect impliedly. At most, we read the stipulation to mean that the assessment has not been paid and that a notice in compliance with § 6303 was mailed by certified mail. Indeed, not until" }, { "docid": "9411331", "title": "", "text": "a perpetual preference vis-a-vis the rights of bona fide purchasers of a taxpayer’s property. In addition to showing that it has a valid lien, the government must also demonstrate that it has protected its lien’s statutory priority. In this case there can be no question that the government timely refiled its 1949 tax lien in order to retain its priority vis-a-vis the rights of Moyer. The Federal Tax Lien Act of 1966 requires the government, as a general rule, to refile notices of its tax liens within the one-year period ending thirty days after the expiration of the six-year period beginning with the date of the assessment of the tax. See 26 U.S.C.A. § 6323(g). However, with respect to those liens in existence on the date the Act became effective, section 6323(g) (4) provides that such liens were to be refiled during the calendar year 1967. In the instant case the government complied with this transitional rule, for it refiled its 1949 tax lien on December 27, 1967. . See, e. g., 26 U.S.C.A. § 7426(c); Falik v. United States, 2 Cir. 1965, 343 F.2d 38; Graham v. United States, 9 Cir. 1957, 243 F.2d 919; United States v. Pearson, S.D.N.Y.1966, 258 F.Supp. 686; Cooper Agency, Inc. v. McLeod, E.D.S.C 1964, 235 F.Supp. 276, aff’d per curiam, 4 Cir. 1965, 348 F.2d 919; Quinn v. Hook, E.D.Pa.1964, 231 F.Supp. 718, aff’d per curiam, 3 Cir. 1965, 341 F.2d 920; Commercial Credit Corp. v. Schwartz, E.D.Ark.1954, 126 F.Supp. 728." }, { "docid": "14306118", "title": "", "text": "mother should live beyond Mrs. Brafman’s fiftieth birthday, the payments of interest and proceeds would begin immediately upon the mother’s death in an amount determined by Mrs. Brafman’s age at that time. . This determination of liability of the estate, i. e. the transferor, may not now be relitigated by the transferee. First National Bank of Chicago v. Commissioner, 7 Cir. 1940, 112 F.2d 260, cert. denied 311 U.S. 691, 61 S.Ct. 72, 85 L.Ed. 447. . Taxes shown due on returns, deficiencies, delinquent taxes, penalties and interest, and additions to taxes are recorded as “assessments”. 26 C.F.R. § 601.104 (1966). “The assessment is an administrative determination that one is indebted to the Government — in effect, it is a judgment for taxes found due.” 9 Mertens, Federal Income Taxation § 49.186 (1965). The sending of notice is not necessary to the validity of an assessment, Filippini v. United States, N.D.Cal.1961, 200 F.Supp. 286, although it is with a deficiency notice, Int.Rev.Code of 1954 § 6212. A signature is not necessary for validity of the latter, however, as the notice is the important element. See Commissioner of Internal Revenue v. Oswego Falls Corp., 2 Cir. 1934, 71 F.2d 673; 9 Mertens, Federal Income Taxation § 49.186 (1965). . In United States v. Ettelson, 7 Cir. 1947, 159 F.2d 193, relied on by the Government, the pertinent issue was whether there was “competent evidence” that the assessments were made within the limitation period. The Court held that “[s]ince these certified copies were under the seal of the Treasury Department, they were admissible in evidence. * * * ” 159 E. 2d at 195. There was no question raised concerning the validity of the assessment by virtue of some internal defect. Accord, Adams v. United States, 1966, 358 F.2d 986, 994, 175 Ct.Cl. 288; United States v. Miller, 7 Cir. 1963, 318 F.2d 637, 638. . See below at n. 10, for a brief discussion of the legislative history of § 6203 and its relevance to the present issue. . Accord, Miller v. Commissioner, 8 Cir. 1964, 333 F.2d 400; McCord v." }, { "docid": "23492999", "title": "", "text": "assessment in any court did not occur until the district court foreclosure action. United States v. Lease, 346 F.2d 696, 698 (2d Cir.1965); United States v. Connor, 291 F.2d 520, 527 (2d Cir.1961); United States v. Mauro, 243 F.Supp. 413 (S.D.N.Y.1965); United States v. Camejo, 666 F.Supp. 1542 (S.D.Fla.1987). II.1982 Tax Court Decisions Taxpayer contends that the 1982 tax court decisions in Shades Ridge v. Commissioner, Nos. 7284-77 and 12290-78 (T.C. Nov. 8, 1982) are res judicata as to the Government’s present attempt to collect Fiorella’s tax liability from Shades Ridge’s assets by an alter ego and fraudulent conveyance or use cause of action. Essentially, Fiorella argues that the cause of action the Government now asserts against Shades Ridge was asserted in the 1982 tax court cases against Shades Ridge. Taxpayer asserts that the Government was required to pursue its claims against Shades Ridge as Fiorella’s transferee at the same time it brought an action to establish Shades Ridge’s tax liability. The district court in its Memorandum Opinion entered November 12, 1987, correctly held that the 1982 Tax Court judgments are not a bar to the nominee or transferee claim proceeding in this case against Shades Ridge. Shades Ridge Holding Co. v. United States, No. CV85-PT-2526-S (N.D.Ala. Nov. 12, 1987). It is not necessary to repeat that carefully reasoned opinion. III.Nominee/Fraudulent Transferee Claims Fiorella contends that the Government failed to offer sufficient evidence to support the district court’s decision that Shades Ridge was the alter ego/nominee of Fiorella. The district court applied the correct principles of law. Property of the nominee or alter ego of a taxpayer is subject to the collection of the taxpayer’s tax liability. G.M. Leasing Corp. v. United States, 429 U.S. 338, 350-51, 97 S.Ct. 619, 627-28, 50 L.Ed.2d 530 (1977). Although the district court found it unclear as to whether state or federal law governs this issue, the standards are so similar that the distinction is of little moment. See United States v. Jon-T Chemicals, Inc., 768 F.2d 686, 690 n. 5 (5th Cir.1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1194, 89 L.Ed.2d 309" }, { "docid": "11170954", "title": "", "text": "to the federal government. Barretto claims that the statements made by counsel for the Government at this hearing were inaccurate. Barretto Complaint ¶ 1. Instead of filing a counterclaim, Barretto thereafter instituted a separate action against the IRS, Taffet, Lewis and Tom McCauley (“McCauley”), identified above as 88 Civ. 2711. The latter action sought to enjoin the tax levy, recover previously assessed taxes for the year 1976, and asserted a claim for intentional infliction of emotional distress against defendants Taffet, Lewis, and McCauley in the amount of $50,000. The Government, as plaintiff in the former action, has moved, pursuant to Fed.R. Civ.P. 56(c), for summary judgment to reduce the federal tax assessment made against Barretto to judgment. In the latter action, the individual defendants and the IRS have moved to dismiss the Barretto Complaint, pursuant to Fed.R.Civ.P. 12(b)(6). The above captioned cases are presently before the Court on these motions. MOTION FOR SUMMARY JUDGMENT Once a taxpayer has been assessed, the Government may proceed to reduce that assessment to judgment. See, e.g., United States v. Rodgers, 461 U.S. 677, 682, 103 S.Ct. 2132, 2137, 76 L.Ed.2d 236 (1983); United States v. First National City Bank, 568 F.2d 853 (2d Cir.1977). Moreover, it is well established that the ÍRS’ determination of a tax deficiency is presumed to be correct, and the burden of overcoming this presumption is on the taxpayer. See United States v. Rindskopf, 105 U.S. 418, 26 L.Ed. 1131 (1882); DeLorenzo v. United States, 555 F.2d 27, 29 (2d Cir.1977); Lesser v. United States, 368 F.2d 306, 310 (2d Cir.1966) (en banc). Where the Government places the assessment in evidence and the taxpayer fails to raise a material issue of fact, the Government is entitled to summary disposition. See United States v. Pierce, 609 F.2d 407 (9th Cir.1979); United States v. Mauro, 243 F.Supp. 413 (S.D.N.Y.1965). Thus, summary judgment may be granted even though none of the facts underlying the assessment of a federal tax is specifically presented to the Court. See, e.g., Mauro, supra at 415. In the present case, the IRS made an assessment against Barretto for" }, { "docid": "15470331", "title": "", "text": "apparently based on his failure to receive actual notice of the deficiency claim. Under § 6212(a) of the Code, if the Secretary determines that a deficiency exists, “he is authorized to send notice of such deficiency to the taxpayer by certified mail or registered mail.” Section 6212(b) provides that it is “sufficient” if the deficiency notice “is mailed to the taxpayer at his last known address.” If these notice provisions are not complied with, § 6213(a) allows the taxpayer to enjoin the assessment and collection of a tax. This statutory exception to the Anti-Injunction Act, however, is of little benefit to the taxpayer in the present case. It is undisputed that the Commissioner mailed a deficiency notice to taxpayer on November 15, 1973, and that this notice was sent to taxpayer’s last known address. The only reason that taxpayer did not receive the notice was that he had moved to Chicago without leaving a forwarding address and was living there under an assumed name. Thus the Commissioner fully complied with the statutory requirement of § 6212(b) that notice be “mailed to the taxpayer at his last known address.” The cases which have considered the statutory argument made by taxpayer in this case have uniformly held that § 6212 is satisfied by mailing notice to taxpayer’s last known address whether or not actual notice is ever received. E. g., Brown v. Lethert, 360 F.2d 560 (8th Cir. 1966); Cohen v. United States, 297 F.2d 760 (9th Cir. 1962), cert. denied 369 U.S. 865, 82 S.Ct. 1029, 8 L.Ed.2d 84 (1962); Luhring v. Glotzback, 304 F.2d 556 (4th Cir. 1962). In Cohen v. United States, supra, for example, the mailing of notice to taxpayer’s last known address was held to satisfy the statute even though the Commissioner knew that taxpayer was in prison at the time the notice was sent. Thus the statutory exception to the Anti-Injunction Act for lack of notice is inapplicable in the present case. In addition to the statutory exception for failure to mail notice, the Supreme Court has allowed suits for injunctions in tax cases in certain" }, { "docid": "7767810", "title": "", "text": "Tax Court before he has to pay it. See, e. g., DeWelles v. United States, 378 F.2d 37, 38-39 (9 Cir. 1967). -Thereis-no doubt that if a genuine joint return is signed by both husband and wife and later a proper § 6212 (b) (2) notice is, without the wife’s knowledge, received by the husband but is not disclosed to her, she cannot defeat the assessment against her on the grounds that she did not get the notice or did not know what it was about. Pfeifer v. Commissioner of Internal Revenue, 272 F.2d 383 (2 Cir. 1959); Brown v. Lethert, 360 F.2d 560 (8 Cir. 1966); Cohen v. United States, 297 F.2d 760 (9 Cir. 1962), cert. denied, 369 U.S. 865, 82 S.Ct. 1029, 8 L.Ed.2d 84 (1962); Luhring v. Glotzbach, 304 F.2d 556 (4 Cir. 1962); Whitmer v. Lucas, 53 F.2d 1006 (7 Cir. 1931). But that is not this case, for the issue here is whether or not in legal effect, a joint return was actually filed. The taxpayer is seeking relief through an injunction against the assessment of the deficiency and its collection. The Government argues that § 7421(a) prohibits the maintaining of a suit in any court to restrain the assessment or collection of any tax, with certain specified exceptions. In Enochs v. Williams Packing Co., supra, 370 U.S. at 7, 82 S.Ct. at 1129, the Supreme Court said, “The manifest purpose of § 7421(a) is to permit the United States to assess and collect taxes alleged to be due without judicial intervention, and to require that the legal right to the disputed sums be determined in a suit for refund. In this manner the United States is assured of prompt collection of its lawful revenue. Nevertheless, if it is clear that under no circumstances could the Government ultimately pre vail, the central purpose of the Act is inapplicable and, under the Nut Margarine Case, the attempted collection may be enjoined if equity jurisdiction otherwise exists. In such a situation the exaction is merely in ‘the guise of a tax.’ ” If the trial court" }, { "docid": "18848643", "title": "", "text": "(5th Cir. 1969); Pinder v. United States, 330 F.2d 119, 124 (5th Cir. 1964). On a motion for summary judgment, therefore, this presumption imposes the burden of going forward with the evidence on the taxpayer. United States v. Mauro, 243 F.Supp. 413, 415 (S.D.N.Y.1965). In the present case, however, defendant has made no showing to controvert the assessment. Thus, the pleadings do not show the existence of a triable issue of fact. See Piper v. United States, 392 F.2d 462, 464 (5th Cir. 1968). The Fifth Circuit has recognized that when no counter proof is made “[t]he trial court [is] . . . justified, in fact required, to enter a summary judgment for the Government for the amount of the taxes proved to be due.” Lane v. United States, 328 F.2d 602, 603 (5th Cir. 1964); see United States v. Pierce, 609 F.2d 407, 408 (9th Cir. 1979). III The subject tax assessment was made against defendant William Ezra Powell on March 8, 1976. At this time, upon defendant’s refusal to pay the assessment after demand, a federal tax lien attached to all of his property. 26 U.S.C. §§ 6321, 6322 (1976). Plaintiff seeks to foreclose this federal tax lien on certain real property described in paragraph 11 of its complaint. By motion for summary judgment, defendant Evie W. Powell contends that this property is not subject to foreclosure and sale as alleged in the complaint. In accordance with Fed.R.Civ.P. 56(e) and Local Rule 6.6, plaintiff has filed a response and a statement of material facts as to which it is contended there exists a genuine issue to be tried. The pleadings reveal that defendants are husband and wife. Mrs. Powell’s affidavit shows that Mr. Powell purchased the prop erty at public auction in August, 1975, and gave $1,000.00 as binder. The purchase price of $8,250.00 was financed by a loan from the Exchange Bank of Wrightsville for which both defendants signed. The note was secured by other property owned by Mrs. Powell which had been conveyed to her by her husband on January 18, 1957. Affiant further states: “It" }, { "docid": "23492998", "title": "", "text": "judgment motion, finding that taxpayer was “attempting to litigate an issue which is without doubt a matter that could have been offered to challenge the assessment in Tax Court.” Id. at 789. Taxpayer’s rationale that the tax court decision is not a final judgment is equally without merit. A tax court decision is considered final upon the affirmance or dismissal after a notice of appeal or the expiration of that time. I.R.C. § 7481(a)(1). Taxpayer may be attempting to assert that the district court has authority to hear taxpayer’s defense in the first instance pursuant to I.R.C. section 7403, which provides that [t]he court shall, after the parties have been duly notified of the action, proceed to adjudicate all matters involved therein and finally determine the merits of all claims to and liens upon the property.... I.R.C. § 7403(c). The cases holding that the taxpayer “may challenge the underlying merits of the assessment” in district court, however, do not involve prior Tax Court action, and are cases where the litigants’ first opportunity to challenge the assessment in any court did not occur until the district court foreclosure action. United States v. Lease, 346 F.2d 696, 698 (2d Cir.1965); United States v. Connor, 291 F.2d 520, 527 (2d Cir.1961); United States v. Mauro, 243 F.Supp. 413 (S.D.N.Y.1965); United States v. Camejo, 666 F.Supp. 1542 (S.D.Fla.1987). II.1982 Tax Court Decisions Taxpayer contends that the 1982 tax court decisions in Shades Ridge v. Commissioner, Nos. 7284-77 and 12290-78 (T.C. Nov. 8, 1982) are res judicata as to the Government’s present attempt to collect Fiorella’s tax liability from Shades Ridge’s assets by an alter ego and fraudulent conveyance or use cause of action. Essentially, Fiorella argues that the cause of action the Government now asserts against Shades Ridge was asserted in the 1982 tax court cases against Shades Ridge. Taxpayer asserts that the Government was required to pursue its claims against Shades Ridge as Fiorella’s transferee at the same time it brought an action to establish Shades Ridge’s tax liability. The district court in its Memorandum Opinion entered November 12, 1987, correctly held that" }, { "docid": "11602537", "title": "", "text": "to the material facts as set forth in the statement submitted by plaintiff pursuant to Rule 9(g) of the General Rules of this court. LAW This is an action under 26 U.S.C. § 7403 to enforce a lien based on a jeopardy assessment. The pendency of a suit in the Tax Court for review of the deficiency does not preclude the prosecution of this action if a bond has not been filed. Cohen v. United States, 297 F.2d 760, 773-774 (9th Cir.), cert. denied, 369 U.S. 865, 82 S.Ct. 1029, 8 L.Ed.2d 84 (1962). The opposing affidavit makes no reference to the filing of a bond. The taxpayer may challenge the underlying merits of the assessment here. United States v. Lease, 2 Cir., 1965, 346 F.2d 696; 26 U.S.C. § 7403(c). Indeed, failure to raise available defenses will be prejudicial since the conclusion of this action will foreclose later consideration of the merits of the tax in the Tax Court or a District Court. United States v. Shahadi, 64-1 U.S.T.C. ¶ 9411 (D.C.N.J.1964); see C. I. R. v. Sunnen, 333 U.S. 591, 598, 68 S.Ct. 715, 92 L.Ed. 898 (1948). The assessment is prima facie evidence of defendant’s liability. United States v. Lease, supra; United States v. Strebler, 313 F.2d 402, 403-404 (8th Cir. 1963). “[T]he burden is therefore on the taxpayer in the first instance to disprove the computations made by the Commissioner * * United States v. Lease, supra, 346 F.2d 701. The United States is entitled to the benefit of this presumption or imposition of the burden of going forward with the evidence on a motion for summary judgment. Engl v. Aetna Life Ins. Co., 139 F.2d 469 (2nd Cir. 1943). The opposing affidavit, sworn to by defendant’s counsel, says that “the jeopardy assessment herein is without foundation * * It further states that “The assessment merely stated that the defendant realized additional taxable income of $75,000 for the year 1960, which was not reported on his return. Aside from that blank statement, no other facts were supplied to him concerning this assessment.” It is true that" }, { "docid": "21027715", "title": "", "text": "broad powers to disallow or subordinate claims when equitable considerations warrant. Heiser v. Woodruff, supra. See, e. g., Pepper v. Litton, 308 U.S. 295, 60 S.Ct. 238, 84 L.Ed. 281 (1939); In re Wyse, 340 F.2d 719 (6th Cir. 1965); Margolis v. Nazareth Fair Grounds & Farmers Market, Inc., 249 F.2d 221 (2d Cir. 1957). See generally In re Mobile Steel Co., 563 F.2d 692, 698-702 (5th Cir. 1977); Gleick, The Equitable Power of Bankruptcy Courts to Subordinate Claims or to Disallow Claims Entirely on Equitable Grounds, 25 J. Nat’l A.Ref.Bankr. 99 (1951). Hence, a claim which has been reduced to judgment may nevertheless be challenged in the bankruptcy court on the ground that the rendering court lacked jurisdiction, or because the judgment was procured by fraud or collusion. Heiser v. Woodruff, supra, 327 U.S. at 736, 66 S.Ct. 853; Pepper v. Litton, supra. See generally IB Moore’s Federal, Practice ¶ 0.419[3-6] at 3121-36 (1974). In his complaint Kapp contended disallowance was required because the debts were corporate debts for which he was not personally liable. The bankruptcy judge reasoned that since the judgments were taken by default, the issue of Kapp’s personal liability was never raised or litigated in the state court and proceeded to decide the question in Kapp’s favor. Based on the principles outlined above, we conclude that the bankruptcy judge erred in failing to accord res judicata effect to the state court judgments and in disallowing the claims. Kapp admits personal service and does not dispute the jurisdiction of the state court. Entered by a court of competent jurisdiction, the judgments finally and conclusively established the validity and amount of the claims against Kapp, notwithstanding that they were obtained by default. See Morris v. Jones, supra, 329 U.S. at 551, 67 S.Ct. 451; Riehle v. Margolies, supra, 279 U.S. at 225, 49 S.Ct. 310; Moyer v. Mathas, supra, 458 F.2d at 434; United States v. Martin, 395 F.Supp. 954, 958 (S.D.N.Y.1975). The defense that he was not personally liable for the debts was clearly available to Kapp at the time of the state proceedings. Although he" }, { "docid": "325644", "title": "", "text": "§ 6212. Another exception to the bar against injunction is made where, after a notice of deficiency is issued and the taxpayer files a petition in the Tax Court, the IRS attempts to send the taxpayer a further notice of deficiency involving his tax liability for the same year. 26 U.S.C. § 6213(a). Where a notice of deficiency is defective within the meaning of section 6213(a), a court of equity is empowered in its discretion to enjoin the assessment and collection of a tax liability. Perlowin v. Sassi, 711 F.2d 910, 912 (9th Cir.1983). The Joneses argue that the May 29 notice of deficiency was defective, and that, consequently, an injunction restraining collection of additional assessed taxes should issue. There is no merit to the taxpayers’ contention that the notice was invalid because they did not receive it. The government produced a copy of Postal Form 3877 showing that the notice was mailed on May 29, 1986. Section 6212 does not require actual receipt by the taxpayer of the notice of deficiency. Rather, it provides that the notice “shall be sufficient” if mailed to the taxpayer at his “last known address.” See Keado v. Commissioner, 853 F.2d 1209, 1211-12 & n. 9 (5th Cir.1988). As the Ninth Circuit has observed, * * * the Congress, when it “authorized” service by registered [or certified] mail, did not intend to require actual receipt by the addressee of the letter. Rather, it permitted the use of a method of giving notice that would ordinarily result in such receipt. Cohen v. United States, 297 F.2d 760, 772 (9th Cir.1962), cert. denied, 369 U.S. 865, 82 S.Ct. 1029, 8 L.Ed.2d 84 (1962). The statutory scheme, therefore, provides a method of notification which insures that the vast majority of taxpayers will be informed that a tax deficiency has been determined against them without imposing on the Commissioner the virtually impossible task of proving that the notice actually has been received by the taxpayer. Taxpayers also argue that the May 29 notice was precluded by section 6212(c), and that the assessment of the tax in November 1986" }, { "docid": "1099110", "title": "", "text": "find reversible error in the jury instructions, we hold that Hook’s convictions are not barred by the statute of limitations. In light of the foregoing, the judgment of the district court is affirmed. . In addition to Spies, Hook attempted to likewise distinguish the many cases pointed to by the Government which involved prosecution under Section 7201 and the concealment of assets by correctly noting that the cases also involved either allegations of fraudulent filing or non-filing of returns, see, e.g., United States v. Voorhies, 658 F.2d 710, 712 (9th Cir.1981); Cohen v. United States, 297 F.2d 760 (9th Cir.), cert. denied, 369 U.S. 865, 82 S.Ct. 1029, 8 L.Ed.2d 84 (1962), or making false statements to the Government, see, e.g., United States v. England, 229 F.Supp. 493 (E.D.Ill.1964), rev'd on other grounds, 347 F.2d 425 (7th Cir.1965), or merely assumed that concealment comprised a Section 7201 violation on the way to determining other issues, see, e.g., United States v. Chagra, 754 F.2d 1181, 1182 (5th Cir.1985) (evidentiary issue); Cohen v. United States, 297 F.2d 760 (9th Cir.) (numerous issues), cert. denied, 369 U.S. 865, 82 S.Ct. 1029, 8 L.Ed.2d 84 (1962); United States v. Shorter, 608 F.Supp. 871 (D.D.C.1985) (denial of motion to dismiss indictment alleged to be duplicitous); United States v. Carpenter, 175 F.Supp. 362 (N.D.Ga.1959) (refused to dismiss indictment alleged to lack specificity). This Court has not been directed to a case, and none could be found, which addressed the precise question posed in this appeal. . Section 6331 provides: “If any person liable to pay any tax neglects or refuses to pay the same within 10 days after notice and demand, it shall be lawful ... to collect such tax ... by levy upon all property and rights to property ... belonging to such person_\" I.R.C. § 6331 (1982). . Since Hook was prosecuted under Section 7201 and not Section 7206(4), the record on appeal is unclear as to whether the prerequisites to prosecution under Section 7206(4) were even met in the instant case. . The three elements of a Section 7201 violation are a tax" }, { "docid": "18848642", "title": "", "text": "defined by 26 U.S.C. § 5005(b)(1). Accordingly, plaintiffs motion for partial summary judgment on this issue is granted. II Plaintiff also seeks summary judgment on the amount of the assessment for distilled spirit excise taxes against William Ezra Powell. The motion is supported by affidavit and documentary evidence. As noted earlier, defendants have not offered any opposing evidence or a statement of material facts. The amount of the assessment is shown by “Certificate of Assessment and Payments,” Form 4340. Brief for Plaintiff, Exhibit N. The certificate is duly signed by an official of the Internal Revenue Service, and thereby constitutes a valid assessment. See Brafman v. United States, 384 F.2d 863, 866 (5th Cir. 1967). Cf. Boyd v. United States, 439 F.Supp. 907, 910 (E.D.Pa. 1977) (summary judgment cannot be granted on improperly signed certificate of assessment). Such a certificate “is presumptively correct and the burden is on the taxpayer to overcome this presumption by countervailing proof.” United States v. Posner, 405 F.Supp. 934, 937 (D.Md.1975); see Mersel v. United States, 420 F.2d 517, 518 (5th Cir. 1969); Pinder v. United States, 330 F.2d 119, 124 (5th Cir. 1964). On a motion for summary judgment, therefore, this presumption imposes the burden of going forward with the evidence on the taxpayer. United States v. Mauro, 243 F.Supp. 413, 415 (S.D.N.Y.1965). In the present case, however, defendant has made no showing to controvert the assessment. Thus, the pleadings do not show the existence of a triable issue of fact. See Piper v. United States, 392 F.2d 462, 464 (5th Cir. 1968). The Fifth Circuit has recognized that when no counter proof is made “[t]he trial court [is] . . . justified, in fact required, to enter a summary judgment for the Government for the amount of the taxes proved to be due.” Lane v. United States, 328 F.2d 602, 603 (5th Cir. 1964); see United States v. Pierce, 609 F.2d 407, 408 (9th Cir. 1979). III The subject tax assessment was made against defendant William Ezra Powell on March 8, 1976. At this time, upon defendant’s refusal to pay the assessment after" }, { "docid": "11602536", "title": "", "text": "pursuant to 26 U.S.C. § 6861 on February 15, 1962. Subsequently, a delinquent account of the aforementioned tax liability was issued on February 15, 1962. (See Ex. A and Ex. C.) (5) On June 26, 1962, defendant petitioned the Tax Court of the United States for a redetermination of the jeopardy assessment of income tax deficiency and a penalty made on February 15, 1962 totalling $73,992.80. Petitioner has failed to press said action and no steps towards its conclusion have been taken in over two years. (6) This action was duly commenced on July 6, 1964 by the filing of the complaint herein, and on July 14, 1964 the defendant was served with a copy of the complaint at the United States Penitentiary at Atlanta, Georgia. An answer was served on July 21, 1964, admitting the aforesaid domicile and that a delegate of the Secretary of the Treasury made a jeopardy income tax assessment against him and served him with a demand therefor as set forth in the complaint. (7) There is no dispute as to the material facts as set forth in the statement submitted by plaintiff pursuant to Rule 9(g) of the General Rules of this court. LAW This is an action under 26 U.S.C. § 7403 to enforce a lien based on a jeopardy assessment. The pendency of a suit in the Tax Court for review of the deficiency does not preclude the prosecution of this action if a bond has not been filed. Cohen v. United States, 297 F.2d 760, 773-774 (9th Cir.), cert. denied, 369 U.S. 865, 82 S.Ct. 1029, 8 L.Ed.2d 84 (1962). The opposing affidavit makes no reference to the filing of a bond. The taxpayer may challenge the underlying merits of the assessment here. United States v. Lease, 2 Cir., 1965, 346 F.2d 696; 26 U.S.C. § 7403(c). Indeed, failure to raise available defenses will be prejudicial since the conclusion of this action will foreclose later consideration of the merits of the tax in the Tax Court or a District Court. United States v. Shahadi, 64-1 U.S.T.C. ¶ 9411 (D.C.N.J.1964); see C." } ]

[ { "docid": "598762", "title": "", "text": "L.Ed.2d 774 (1989) (internal quotation marks omitted). The FBI invoked Exemption 7(C) to protect the following information pertain ing to the criminal investigations of plaintiff: (1) the names and identifying information of FBI Special Agents and support personnel; (2) the names and identifying information of third parties merely mentioned, as well as of third parties of investigative interest to the FBI or other law enforcement agencies; and (3) the identities of and information provided by Cooperative Witnesses. (Second Hardy Decl. ¶¶ 47, 49-51, 53, 59, 61-63, 65; Third Hardy Decl. ¶¶ 10 n.3,17, 20.) The D.C. Circuit has consistently held that Exemption 7(C) protects the privacy interests of all persons mentioned in law enforcement records, including investigators, suspects, witnesses, and informants. See Schrecker v. U.S. Dep’t of Justice, 349 F.3d 657, 661 (D.C.Cir.2003) (citing cases). Accordingly, the Court has adopted a “categorical rule permitting an agency to withhold information identifying private citizens mentioned in law enforcement records, unless disclosure is ‘necessary in order to confirm or refute compelling evidence that the agency is engaged in illegal activity.’ ” Id. (quoting SafeCard Servs., Inc. v. SEC, 926 F.2d 1197 (D.C.Cir.1991)). In this case, plaintiff claims a public interest in proving his innocence, which he claims weighs in favor of disclosure. However, “it is well established that an individual’s personal interest in challenging his criminal conviction is not a public interest under FOIA because it ‘reveals little or nothing about an agency’s own conduct.’” Willis v. U.S. Dep’t of Justice, 581 F.Supp.2d 57, 76 (D.D.C.2008) (quoting Reporters Comm., 489 U.S. at 773, 109 S.Ct. 1468). Moreover, plaintiff has not provided any evidence that the FBI engaged in any illegal activity. Although the D.C. Circuit has held that “the privacy interest in nondisclosure of identifying information may be diminished where the individual is deceased,” Schrecker, 349 F.3d at 661 (quoting SafeCard, 926 F.2d at 1206), this factor is irrelevant where, as here, plaintiff has not identified any public interest in disclosure. “[S]omething, even a modest privacy interest, outweighs nothing every time.” Nat'l Ass’n of Retired Fed. Employees v. Horner, 879 F.2d 873, 879" } ]

[ { "docid": "6434798", "title": "", "text": "the murder investigation,” Def.’s Mem., Luczynski Deck ¶ 30, “the names [and] home telephone numbers of those [individuals] who are only incidentally mentioned in these records,” id. ¶ 33, as well as “the identities and/or personal and non-public information concerning third-party individuals in whom federal and/or local law enforcement agencies had an investigative interest,” id. ¶ 34. Likewise, the FBI withholds the “name, address, telephone number, date of birth and nickname of a victim of a crime,” Def.’s Mem., Argali Deck ¶ 36, the names of and identifying information about third parties of investigative interest either to the FBI or to other law enforcement agencies, id. ¶ 37, and, lastly, “the name and title of a commercial employee who cooperated and provided assistance to the FBI by entering data into the ViCAP database,” id. ¶ 38. Exemption 7(C) recognizes that the stigma of being associated with any law enforcement investigation affords broad privacy rights to those who are connected in any way with such an investigation unless a significant public interest exists for disclosure. Reporters Comm. for Freedom of the Press, 489 U.S. at 773-775, 109 S.Ct. 1468; SafeCard Servs., 926 F.2d at 1205-06. The exemption “takes particular note of the strong interest of individuals, whether they be suspects, witnesses, or investigators, in not being associated unwarrantedly with alleged criminal activity.” Dunkelberger v. U.S. Dep’t of Justice, 906 F.2d 779, 781 (D.C.Cir.1990) (internal quotation marks omitted). Accordingly, “[t]he D.C. Circuit has consistently held that Exemption 7(C) protects the privacy interests of all persons mentioned in law enforcement records, including investigators, suspects, witnesses, and informants.” Fischer v. U.S. Dep’t of Justice, 596 F.Supp.2d 34, 47 (D.D.C.2009) (citing Schrecker v. U.S. Dep’t of Justice, 349 F.3d 657, 661 (D.C.Cir.2003)). The plaintiff does not assert, and the Court cannot identify, a public interest of such significance that it outweighs the privacy interests of the third parties mentioned in the records responsive to the plaintiffs FOIA requests. Furthermore, his assertion that “the passage of time has substantially eroded the records[’] law enforcement exemption status,” Pl.’s Opp’n at 14, is unavailing, because an individual’s privacy" }, { "docid": "2485778", "title": "", "text": "and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). We focus here on Exemption 7(C) because it provides broader privacy protection than Exemption 6 and thus \"establishes a lower bar for withholding material.” ACLU, 655 F.3d at 6; see Favish, 541 U.S. at 165-66, 124 S.Ct. 1570; Reporters Comm., 489 U.S. at 756, 109 S.Ct. 1468. . DeLay is not the only one with a privacy interest in the contents of the investigative files. Other third parties may be mentioned therein, including many of the other individuals listed in CREW's FOIA request. They have a substantial privacy interest in preventing disclosure of their names in law enforcement files. See Nation Magazine, 71 F.3d at 894; Fitzgibbon, 911 F.2d at 767. The same is true of witnesses, informants and investigating agents who may also be mentioned. See Favish, 541 U.S. at 166, 124 S.Ct. 1570; Roth, 642 F.3d at 1174; Schreclcer, 349 F.3d at 666. . At argument, counsel for the DOJ suggested that CREW seeks disclosure not to further the purposes of FOIA but rather to smear DeLay on its website. Recording of Argument 21:01 (D.C.Cir. Jan. 16, 2014). That accusation does not affect our inquiry: \"[W]hether disclosure of a private document under Exemption 7(C) is warranted must turn on the nature of the requested document and its relationship to ‘the basic purpose of [FOIA] to open agency action to the light of public scrutiny,' rather than on the particular purpose for which the document is being requested.” Reporters Comm., 489 U.S. at 772, 109 S.Ct. 1468 (quoting Rose, 425 U.S. at 372, 96 S.Ct. 1592) (additional quotation marks omitted); accord. Bibles, 519 U.S. at 355-56, 117 S.Ct. 795. \"In other words, the public interest side of the balance is not a function of the identity of the requester....” Pub. Citizen Health Research Grp. v. FDA, 185 F.3d 898, 904 (D.C.Cir.1999); see also Multi Ag Media LLC, 515 F.3d at 1231 n. 2 (\"Although [the requester] may not want the information to check up on the government itself, the" }, { "docid": "13128024", "title": "", "text": "v. CIA 911 F.2d 755, 767 (D.C.Cir.1990). Rather, precedents suggest that individuals maintain a privacy interest under the FOIA in their identity as government informants and in not being positively associated with a criminal matter. See, e.g., Maynard, 986 F.2d at 566; Fitzgibbon, 911 F.2d at 767. Although Koresko is not, strictly speaking, a government informant, his privacy interest is analogous to that of an informant. This Court has long protected the identities of witnesses and informants in law enforcement records. Maynard, 986 F.2d at 566 (stating that “FBI agents, support personnel, confidential sources, and investigatory targets all have significant privacy interests in not having their names revealed”); New England Apple Council v. Donovan, 725 F.2d 139, 142 (1st Cir.1984); see also Fitzgibbon, 911 F.2d at 767 (“[PJersons involved in FBI investigations — even if they are not the subject of the investigation — ‘have a substantial interest in seeing that their participation remains secret.’ ”). While Koresko’s identity is known and Carpenter alleges that he assisted the Government in its prosecution, it is a further invasion of Koresko’s protected privacy interest to positively identify him with a given criminal matter and reveal the records or information that he provided. See Fitzgibbon, 911 F.2d at 767 (“[Exemption 7(C) takes particular note of the ‘strong interest’ of individuals, whether they be suspects, witnesses, or investigators, ‘in not being associated unwarrantedly with alleged criminal activity.’ ”). Koresko, as a private individual, maintains control over information concerning his person and his involvement with the criminal justice system, and he alone controls “when, how, and to what extent [that] information” will be revealed. Reporters Comm., 489 U.S. at 764 n. 16, 109 S.Ct. 1468. Carpenter, however, asserts that Kores-ko has waived any privacy interest via his alleged involvement in the Government’s prosecution. Plaintiff bases this contention on a letter from a Congressman attached to Koresko’s motion to quash a subpoena in an unrelated administrative proceeding. The letter stated: “I understand that Mr. Koresko has been of assistance to your office, the Boston office of the DOL/EBSA and Assistant U.S. Attorney Michael Pi-neault in the" }, { "docid": "12721611", "title": "", "text": "criminal offenses, are criminal investigative records” which were “compiled during criminal law enforcement investigations by [the] DEA.” Id. ¶ 28. Given the nature of plaintiffs FOIA request and the descriptions of the systems of records where responsive records likely would be located, the Court concludes that any responsive records would be law enforcement records. See Burke v. United States Dep’t of Justice, No. 96-1739, 1999 WL 1032814, *5 (D.D.C. Sept. 30, 1999) (concluding from “plain language of [plaintiffs] FOIA request and the context in which he filed” it that he “specifically and exclusively sought investigative records compiled for purposes of law enforcement which mention the third parties”). 2. Exemption 7(C) and Mr. Astudillo’s Privacy Interest Exemption 7(C) protects from disclosure information in law enforcement records that “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). In determining whether this exemption applies to particular material, the Court must balance the interest in privacy of individuals mentioned in the records against the public interest in disclosure. United States Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 776, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) (requiring court to “balance the public interest in disclosure against the interest Congress intended [Exemption 7(C) ] to protect”); Beck v. Dep’t of Justice, 997 F.2d 1489, 1491 (D.C.Cir.1993). “The privacy interest at stake is substantial.” SafeCard Serv., Inc., 926 F.2d at 1205. Individuals have a “strong interest in not being associated unwarrantedly with alleged criminal activity.” Stern v. Fed. Bureau of Investigation, 737 F.2d 84, 91-92 (D.C.Cir.1984). For this reason, the names of and identifying information about third parties who are mentioned in law enforcement records routinely are withheld. E.g., Rugiero v. United States Dep’t of Justice, 257 F.3d 534, 552 (6th Cir.2001) (concluding that agency properly withheld identifying information on agents, personnel, and third parties after balancing privacy interests against public interest in disclosure); Stern, 737 F.2d at 93 (privacy interest of censured federal government employees “is paramount and protects their identities from being revealed”). “[S]imply confirming that DEA has records on the" }, { "docid": "5194713", "title": "", "text": "of a withheld report does not constitute a waiver of a FOIA exemption). Furthermore, the privacy interests belong to the individuals, not to the government agency. For example, a third party may testify in open court and maintain an interest in his personal privacy. See, e.g., Jones v. FBI, 41 F.3d 238, 247 (6th Cir.1994). And he maintains an interest in his personal privacy even if the requester already knows, or is able to guess, his identity. See Weisberg v. Dep’t of Justice, 745 F.2d 1476, 1491 (D.C.Cir.1984). ii. Secret Service Records The Secret Service relies on Exemption 7(C) to withhold “the names of Secret Service personnel and law enforcement personnel from other agencies ... to avoid subjecting [these] public servants to harassment and annoyance either in the conduct of their official duties or then-private lives.” Prewitt Decl. ¶ 49. In addition, the agency withholds the “Secret Service identification numbers of Agency personnel,” id. ¶ 53; see id., Ex. P-Q (Vaughn Index, Doc. Nos. 9, 11 & 14), on the ground that release “could infringe upon the employee’s privacy rights by allowing [someone] to gain personal information about” him or her, id. ¶ 54. Also under Exemption 7(C), the agency withholds “the Social Security Number ... of an individual other than [p]laintiff who was not related to the matter being investigated [yet] appeared in the results of a records check conducted on [p]laintiff.” Id. ¶ 51; see id., Ex. P (Vaughn Index, Doc. No. 13). In no circumstance does the Secret Service identify a public interest in disclosure of this information to outweigh the third parties’ privacy interests. See id. ¶¶ 50, 52 & 54. Plaintiff does not challenge these withholdings. See generally Pl.’s Opp’n. Exemption 7(C) “recognizes the stigma potentially associated with law enforcement investigations and affords broader privacy rights to suspects, witnesses, and investigators.” Bast v. U.S. Dep’t of Justice, 665 F.2d 1251, 1254 (D.C.Cir.1981). The District of Columbia Circuit has held “categorically that,- unless access to the names and addresses of private individuals appearing in files within the ambit of Exemption 7(C) is necessary in order to" }, { "docid": "20174318", "title": "", "text": "personnel, and third parties of investigative interest. Id. ¶ 40. B. Privacy Act Exemption (j)(2) Subsection (j)(2) of the Privacy Act exempts from disclosure records maintained by an agency whose principal function is law enforcement. 5 U.S.C. § 552a(j)(2). The Privacy Act permits an agency to promulgate regulations exempting from disclosure: records maintained by an agency or component thereof which performs as its principal function any activity pertaining to the enforcement of criminal laws, including police efforts to prevent, control, or reduce crime or to apprehend criminals, and the activities of prosecutors, courts, correctional, probation, pardon, or parole authorities, and which consist of.... (B) information compiled for the purpose of a criminal investigation, including reports of informants and investigators, and associated with an identifiable individual; or (C) reports identifiable to an individual compiled at any stage of the process of enforcement of the criminal laws from arrest or indictment through release from supervision. Id. CRS records are exempt from disclosure under the Privacy Act. 28 C.F.R. § 16.96. Thus, the Privacy Act does not require that the FBI release any of the records kept in CRS. Even though the Privacy Act does not require disclosure, the FBI processed Mr. Marshall’s request under FOIA. See Martin v. Office of Special Counsel, 819 F.2d 1181, 1184 (D.C.Cir.1987) (to withhold documents from a FOIA/PA request, an agency must show that the documents are exempt from disclosure under each Act). C. FOIA Exemptions 6 and 7(C) Invoking FOIA Exemption 6 in conjunction with Exemption 7(C), the FBI redacted information likely to identify the following categories of individuals: FBI special agents, FBI personnel, and third parties of investigative interest. Hardy Decl. ¶¶ 40, 43-49. Exemption 6 permits an agency to withhold from disclosure “personnel and medical files and similar files” if their disclosure would “constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). Exemption 7(C) exempts disclosure of information based on privacy concerns by permitting an agency to withhold from disclosure information that is “compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records" }, { "docid": "20174319", "title": "", "text": "that the FBI release any of the records kept in CRS. Even though the Privacy Act does not require disclosure, the FBI processed Mr. Marshall’s request under FOIA. See Martin v. Office of Special Counsel, 819 F.2d 1181, 1184 (D.C.Cir.1987) (to withhold documents from a FOIA/PA request, an agency must show that the documents are exempt from disclosure under each Act). C. FOIA Exemptions 6 and 7(C) Invoking FOIA Exemption 6 in conjunction with Exemption 7(C), the FBI redacted information likely to identify the following categories of individuals: FBI special agents, FBI personnel, and third parties of investigative interest. Hardy Decl. ¶¶ 40, 43-49. Exemption 6 permits an agency to withhold from disclosure “personnel and medical files and similar files” if their disclosure would “constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). Exemption 7(C) exempts disclosure of information based on privacy concerns by permitting an agency to withhold from disclosure information that is “compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C) (emphasis added). If a court determines that information properly was properly withheld under one exemption, it need not determine whether another exemption applies to that same information. Simon v. Dep’t of Justice, 980 F.2d 782, 784-85 (D.C.Cir.1992). Thus, in this case the Court only needs to analyze Exemption 7(C). Exemption 7(C) protects the identities of suspects, witnesses, and other persons of investigatory interest who are identified in agency records in connection with alleged criminal activity. Computer Prof’ls for Soc. Responsibility v. Secret Service, 72 F.3d 897, 904 (D.C.Cir.1996). Further, law enforcement personnel have a privacy interest in protecting their own identities because disclosure could subject them to annoyance, embarrassment, and harassment in the conduct of their official and private lives. Halpern v. FBI, 181 F.3d 279, 296-97 (2d Cir.1999); Lesar v. DOJ, 636 F.2d 472, 487 (D.C.Cir.1980). Accordingly, the FBI withheld the telephone numbers and fax numbers of FBI personnel, because these phone numbers could be used" }, { "docid": "12721612", "title": "", "text": "Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 776, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) (requiring court to “balance the public interest in disclosure against the interest Congress intended [Exemption 7(C) ] to protect”); Beck v. Dep’t of Justice, 997 F.2d 1489, 1491 (D.C.Cir.1993). “The privacy interest at stake is substantial.” SafeCard Serv., Inc., 926 F.2d at 1205. Individuals have a “strong interest in not being associated unwarrantedly with alleged criminal activity.” Stern v. Fed. Bureau of Investigation, 737 F.2d 84, 91-92 (D.C.Cir.1984). For this reason, the names of and identifying information about third parties who are mentioned in law enforcement records routinely are withheld. E.g., Rugiero v. United States Dep’t of Justice, 257 F.3d 534, 552 (6th Cir.2001) (concluding that agency properly withheld identifying information on agents, personnel, and third parties after balancing privacy interests against public interest in disclosure); Stern, 737 F.2d at 93 (privacy interest of censured federal government employees “is paramount and protects their identities from being revealed”). “[S]imply confirming that DEA has records on the individual in its possession, in and of itself, would constitute a violation of an individual’s privacy.” Little Decl. ¶ 24. Documents found in the three systems of records relevant here “generally relate to and contain the names and other identifying information which would reveal the identity of and disclose personal information about individuals who were involved or associated with criminal activity. The release of such information can have a potentially stigmatizing or embarrassing effect on the individuals and cause them to be subjected to unnecessary public scrutiny and scorn.” Id. ¶ 31. Plaintiff notes that Mr. Astudillo was a witness who testified against him publicly at the criminal trial. Compl. ¶ 7; Pl.’s Opp’n at 4. He also alleges that Mr. Astu-dillo “works for the federal government,” Compl. ¶ 14a, and that his status as a “public law enforcement officer” renders his “privacy interest [ ] somewhat reduced.” Pl.’s Opp’n at 4. None of these circumstances undermines the assertion of Mr. Astudillo’s privacy interest. The fact that a third party testified publicly at trial does" }, { "docid": "3350152", "title": "", "text": "“thus face an evidentiary Catch-22 if the statute and the case law did not make allowances.” Id. The statute expressly places the burden “on the agency to sustain its action” and directs the district courts to “determine the matter de novo,” giving no deference to the agency’s determinations. United States Dep’t of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 755, 109 S.Ct. 1468, 103 L.Ed.2d 774 (quoting 5 U.S.C. § 552(a)(4)(B)). Courts will grant an agency’s motion for summary judgment only if the agency identifies the documents at issue and explains why they fall under exemptions. See Cooper Cameron Corp., 280 F.3d at 543. The agency often makes this explanation in an affidavit, but the affidavit “will not suffice if the agency’s claims are conclusory, merely reciting statutory standards, or if they are too vague or sweeping.” See id. B. FOIA Exemption 7(C) The FBI contends that portions of Document 212 have been withheld pursuant to the FOIA exemption found at 5 U.S.C. § 552(b)(7)(C). Exemption 7(C) authorizes government agencies to withhold records or information that “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” In particular, Exemption 7(C) protects the identities of law enforcement personnel, suspects, witnesses, informants, and other individuals mentioned in such records. To determine whether Exemption 7(C) applies, courts must balance any privacy interests involved against the pub- be interests that are served by disclosure. See Reporters Comm., 489 U.S. at 762, 109 S.Ct. 1468; Kimberlin v. Department of Justice, 139 F.3d 944, 948 (D.C.Cir.1998). Here, the pubhc interest is obviously quite serious, and the government has the burden of demonstrating that privacy interests outweigh the pubhc interest. See Cooper Cameron Corp., 280 F.Bd at 543. Hodes’ declaration states that information was redacted from Document 212 to protect the privacy interests of “of third parties who were of an investigative interest to the FBI” and individuals “who were merely mentioned within the law enforcement investigatory records.” As discussed earlier, Hodes fails to demonstrate that he has personal knowledge of the content of the redacted portions, or personal knowledge" }, { "docid": "12721614", "title": "", "text": "not diminish or waive his privacy interest. See Jones v. Fed. Bureau of Investigation, 41 F.3d 238, 247 (6th Cir.1994) (law enforcement employee who chooses or is required to testify does not waive personal privacy); Butler v. Drug Enforcement Admin., No. 05-1798, 2006 WL 398653, *4 (D.D.C. Feb. 16, 2006) (upholding Glomar response even though third parties are known to requester and testified at plaintiffs criminal trial); Lardner v. United States Dep’t of Justice, No. 03-0180, 2005 WL 758267, *19 (D.D.C. Mar. 31, 2005) (concluding that name of witness who testified at public trial properly was withheld under Exemption 7(C)). Assuming without deciding that Mr. Astu-dillo is a law enforcement officer, this status alone may diminish, but does not waive entirely, his privacy interest. See, e.g., Stern, 737 F.2d at 91 (withholding names of lower-level FBI employees under Exemption 7(C) as employee has “at least a minimal privacy interest in his [ ] employment history and job performance evaluations”); Dunkelberger v. Dep’t of Justice, 906 F.2d 779, 781 (D.C.Cir.1990) (recognizing FBI agent’s “particular interest in not being associated unwarrantedly with the misconduct alleged” by the FOIA requester). 3. Public Interest in Disclosure “[T]he only public interest relevant for purposes of Exemption 7(C) is one that focuses on ‘the citizens’ right to be informed about what their government is up to.’ ” Davis v. United States Dep’t of Justice, 968 F.2d 1276, 1282 (D.C.Cir.1992) (quoting Reporters Comm. for Freedom of the Press, 489 U.S. at 773, 109 S.Ct. 1468). The names of and identifying information about third parties in law enforcement records generally are protected unless disclosure “is necessary in order to confirm or refute compelling evidence that the agency is engaged in illegal activity.” SafeCard Serv., Inc., 926 F.2d at 1206. Here, plaintiff merely asserts that he has uncovered evidence “suggesting massive government misconduct.” Compl. ¶ 15. His burden is much higher, however. Absent “evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred,” Nat’l Archives and Records Admin. v. Favish, 541 U.S. 157, 174, 124 S.Ct. 1570, 158 L.Ed.2d 319 (2004)," }, { "docid": "21868485", "title": "", "text": "parties that appear in the FBI documents. A. The names of government officials Courts have held that law enforcement officials have a privacy interest in nondisclosure of their names in connection with law enforcement investigations. See Neely, 208 F.3d at 464 (stating that law enforcement officials have a substantial interest in the nondisclosure of their identities and their connection with particular investigations because of the potential for future harassment, annoyance, or embarrassment); Jones v. F.B.I., 41 F.3d 238, 247 (6th Cir.1994) (stating “that federal law enforcement officials have the right to be protected against public disclosure of their participation in law enforcement investigations pursuant to exemption (b)(7)(C)”) (internal quotation marks and citation omitted). In Neely, an inmate sought disclosure under FOIA for information in his FBI file. The FBI withheld the names of FBI agents, among others, pursuant to exemption 7(C). The court affirmed on the ground that the agents’ privacy interest in not disclosing them names in connection with a particular investigation outweighed the negligible public interest in their names. Id. at 464. The court noted that “there being no compelling allegation of agency corruption or illegality, there would appear to be no reason on the record before us to assume that these names and identifying information bear in any way upon the agency’s performance of its statutory duties or contribute significantly to public understanding of the operations or activities of the government.” Id. Similarly, in Jones, the plaintiff, who had been convicted of murder, sought FBI records related to himself and a group he founded. 41 F.3d at 239. Some of the records he received in response to his FOIA request led to the granting of his habeas corpus petition. Id. at 241. The FBI redacted the names of FBI agents appearing in many of the documents. After acknowledging that law enforcement agents have a privacy interest in not having their participation in law enforcement investigations disclosed, the court concluded that the public — as opposed to the plaintiff litigant — did not have an interest in knowing the names of the agents as “the identity of these" }, { "docid": "22594898", "title": "", "text": "third parties who were of investigative interest to the FBI. In reviewing the Moran. Declaration, we are guided by the Supreme Court’s decision in United States Dep’t of Justice v. Reporters Comm, for Freedom of the Press, which explained that Exemption 7(C) applies where the invasion of personal privacy resulting from release of the information would outweigh the public interest in disclosure. 489 U.S. at 762,109 S.Ct. 1468. Applying this test in Massey, we concluded that the FBI was justified in redacting information from a newspaper article and an internal FBI memorandum relating to a murder investigation, where release of the information would have disclosed “the identities of FBI agents, cooperating witnesses and third parties, including cooperating law enforcement officials.” 3 F.3d at 624. In reaching this conclusion, we explained that government employees and officials, particularly law enforcement per sonnel, have privacy interests to the extent that revelation of their identities “could subject them to embarrassment and harassment in the conduct of their official duties and personal affairs.” Id. Third parties, moreover, have perhaps even stronger privacy interests insofar as the material in question demonstrates or suggests they had at one time been subject to criminal investigation. See Reporters Comm., 489 U.S. at 767, 109 S.Ct. 1468. Confidentiality interests cannot be waived through prior public disclosure or the passage of time. Balanced against such privacy interests is the countervailing FOIA design of disclosing internal agency conduct to the public. Here, the public interest in identifying law enforcement personnel is small since that information sheds little light if any on the conduct and administration of FBI investigations. Likewise, there is little or no public interest in having the identities of private parties revealed because that information sheds little or no light on the FBI’s performance. Since the public interest in this information is outweighed by relevant privacy interests of the individuals involved, the redaction of such information should be upheld. In the present case, appellant does not allege specific wrongdoing by the FBI that might implicate the need for public disclosure of officials’ identities. Nor does Halpern’s status as.an historian with" }, { "docid": "20864551", "title": "", "text": "showing that the records were compiled for law enforcement purposes. 5 U.S.C. § 552(b)(7)(C); see also Rural Hous. Alliance v. U.S. Dep’t of Agric., 498 F.2d 73, 80 (D.C.Cir.1974). Here, there is no dispute that the records withheld by EOUSA relating to the prosecution and conviction of plaintiff were compiled for law enforcement purposes. Next, the agency must articulate a privacy interest that would be invaded by disclosure. See Reporters Comm., 489 U.S. at 756, 109 S.Ct. 1468. Here, EOU-SA has identified legitimate privacy interests that would be invaded by the release of third-party information, including the interest in avoiding the “harassment, harm, or exposure to unwanted and/or derogatory publicity and inferences” that might result from disclosure. 1st Luczynski Deck ¶ 26; see also Schrecker v. U.S. Dep’t of Justice, 349 F.3d 657, 666 (D.C.Cir.2003) (noting the strong privacy interest of “persons involved in law enforcement investigations — witnesses, informants, and the investigating agents — ... ‘in seeing that their participation remains secret’ ”), quoting Senate of P.R. ex rel. Judiciary Comm. v. U.S. Dep’t of Justice, 823 F.2d 574, 588 (D.C.Cir.1987). Once a legitimate privacy interest has been established, a FOIA requestor bears the burden of asserting a countervailing public interest in disclosure. See, e.g., Boyd, 475 F.3d at 386-87; Lewis v. U.S. Dep’t of Justice, 609 F.Supp.2d 80, 84 (D.D.C.2009); Fischer v. U.S. Dep’t of Justice, 596 F.Supp.2d 34, 47 (D.D.C.2009). The requestor “must (1) ‘show that the public interest sought to be advanced is a significant one, an interest more specific than having the information for its own sake,’ and (2) ‘show the information is likely to advance that interest.’ ” Boyd, 475 F.3d at 387, quoting Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 172, 124 S.Ct. 1570, 158 L.Ed.2d 319 (2004). Both the Court and the agency are required to “ ‘balance the privacy interests that would be compromised by disclosure against the public interest in release of the requested information.” Roth v. U.S. Dep’t of Justice, 642 F.3d 1161, 1174 (D.C.Cir.2011), quoting Davis v. U.S. Dep’t of Justice, 968 F.2d 1276, 1281" }, { "docid": "20819208", "title": "", "text": "“Exemption 7(C)’s privacy language is broader than the comparable language in Exemption 6,” Reporters Comm., 489 U.S. at 756, 109 S.Ct. 1468, we confine our analysis to Exemption 7(C). III. We review de novo the district court’s conclusion that Exemption 7(C) justifies NIH’s Glomar responses to PETA’s second and third FOIA requests. That exemption supports a Glomar response if acknowledgment of responsive documents “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). To answer that question, we “weigh the public interest in the release of information against the privacy interest in nondisclosure.” Schrecker v. U.S. Dep’t of Justice, 849 F.3d 657, 661 (D.C.Cir.2003). We consider PETA’s second and third FOIA requests in turn. A. PETA’s second FOIA request encompasses “materials related to all [NIH] investigations into complaints ... regarding [the three named researchers] at Auburn University’s Scott-Ritchey Research Center.” We conclude that a Glomar response is warranted for the heartland of responsive documents, but we hold that NIH’s across-the-board Glomar response is unjustified because certain types of responsive documents would fall outside of Exemption 7(C). 1. PETA’s second request by its terms — and at its core — seeks disclosure of records that would confirm that NIH had investigated the three researchers. We agree with the district court that Exemption 7(C) justifies a Glomar response for any such documents. Courts have repeatedly recognized the “substantial” privacy interest held by “the targets of law-enforcement investigations ... in ensuring that their relationship to the investigations remains secret.” Roth, 642 F.3d at 1174 (internal quotation marks omitted). In Jefferson v. Department of Justice, 284 F.3d 172, 180 (D.C.Cir.2002), for instance, we emphasized an Assistant U.S. Attorney’s strong privacy interest in avoiding the disclosure of any investigation of misconduct. See also Schrecker, 349 F.3d at 666 (“We have long recognized ... that ‘the mention of an individual’s name in a law enforcement file will engender comment and speculation and carries a stigmatizing connotation.’ ” (quoting Fitzgibbon v. CIA, 911 F.2d 755, 767 (D.C.Cir.1990))). The same concerns exist in the context of non-criminal investigations, including investigations of federal" }, { "docid": "4258483", "title": "", "text": "911 F.2d 755, 768 (D.C.Cir.1990) (rarely does a public interest outweigh an individual’s privacy interest when law enforcement information pertaining to an individual is sought). “[T]hird parties who may be mentioned in investigatory files” and “witnesses and informants who provide information during the course of an investigation” have an “obvious” and “substantial” privacy interest in their information. Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 894 (D.C.Cir.1995). Indeed, the Supreme Court has made clear that requests for such third party information are strongly disfavored: The FOIA’s central purpose is to ensure that the Government’s activities be opened to the sharp eye of public scrutiny, not that information about private citizens that happens to be in the warehouse of the Government be so disclosed. Thus ... in none of our cases construing the FOIA have we found it appropriate to order a Government agency to honor a FOIA request for information about- a particular private citizen. Reporters Comm., 489 at 774, 109 S.Ct. 1468. Martin’s allegation that “[o]nly de minimis ... privacy interests are implicated by [his] FOIA requests,” because “[o]pen public court opinions ... describe the gist of the Brady material,” Appellants’ Br. at 28, is unavailing. In Reporters Committee, the Court ruled that a person’s privacy interest in law enforcement records that name him is not diminished by the fact that the events they describe were once a matter of public record. See Reporters Comm., 489 U.S. at 779-80, 109 S.Ct. 1468 (protecting privacy interests in “rap sheets”). Our conclusion that there is a substantial privacy interest in protecting the FBI records from disclosure does not, however, complete our inquiry. The statutory term, “unwarranted,” which modifies the invasion of privacy prohibited under Exemption 7(C), requires us to balance the asserted privacy interests against the potential public interest in disclosure. See Favish, 541 U.S. at 171, 124 S.Ct. 1570 (citing Reporters Comm., 489 U.S. at 762, 109 S.Ct. 1468). As we have recently clarified in a similar case, In order to trigger the balancing of public interests against private interests, a FOIA requester must (1) show that the public" }, { "docid": "4258482", "title": "", "text": "invasion of privacy]” for “would constitute” such an invasion. Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 166, 124 S.Ct. 1570, 158 L.Ed.2d 319 (2004) (citing Reporters Comm., 489 U.S. at 756, 109 S.Ct. 1468). Because “[l]aw enforcement documents ... often contain information about persons ... whose link to the official inquiry may be the result of mere happenstance,” the Court observed, “[t]here is special reason ... to give protection to [ ] intimate personal data, to which the public does not have a general right of access in the ordinary course.” Id. (citing Reporters Comm., 489 U.S. at 780, 109 S.Ct. 1468). We also note that privacy interests are particularly difficult to overcome when law enforcement information regarding third parties is implicated. See Reporters Comm., 489 U.S. at 780, 109 S.Ct. 1468 (“privacy interest protected by Exemption 7(C) is ... at its apex while the FOIA-based public interest in disclosure is at its nadir” when requester seeks a private citizen’s criminal history information within the government’s control); see also Fitzgibbon v. CIA 911 F.2d 755, 768 (D.C.Cir.1990) (rarely does a public interest outweigh an individual’s privacy interest when law enforcement information pertaining to an individual is sought). “[T]hird parties who may be mentioned in investigatory files” and “witnesses and informants who provide information during the course of an investigation” have an “obvious” and “substantial” privacy interest in their information. Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 894 (D.C.Cir.1995). Indeed, the Supreme Court has made clear that requests for such third party information are strongly disfavored: The FOIA’s central purpose is to ensure that the Government’s activities be opened to the sharp eye of public scrutiny, not that information about private citizens that happens to be in the warehouse of the Government be so disclosed. Thus ... in none of our cases construing the FOIA have we found it appropriate to order a Government agency to honor a FOIA request for information about- a particular private citizen. Reporters Comm., 489 at 774, 109 S.Ct. 1468. Martin’s allegation that “[o]nly de minimis ... privacy interests are implicated" }, { "docid": "13128022", "title": "", "text": "his or her person,” and “when, how, and to what extent information about them is communicated to others.” Id. at 789, 764, 109 S.Ct. 1468 n. 16. The individual, and not the agency in possession of the records, controls the privacy interest. See Reporters Comm., 489 U.S. at 763-65, 109 S.Ct. 1468; Sherman v. U.S. Dep’t of the Army, 244 F.3d 357, 363 (5th Cir.2001) (providing that the individual controls the privacy interest at stake in FOIA exemptions). Furthermore, where the provider of the information or records is a private individual, “the privacy interest ... is at its apex.” Reporters Comm., 489 U.S. at 780, 109 S.Ct. 1468; Nat’l Archives & Records Admin, v. Favish, 541 U.S. 157, 166, 124 S.Ct. 1570, 158 L.Ed.2d 319 (2004). In Reporters Committee, the Supreme Court pointed to the provisions of the FOIA allowing the redaction of an individual’s identifying information and the segregation of exempt portions of the record in concluding that the “disclosure of records regarding private citizens, identifiable by name, is not what the framers of the FOIA had in mind.” 489 U.S. at 765-66, 109 S.Ct. 1468. The central purpose of the FOIA is to reveal government action, not to expose the actions of private third parties and their participation in law enforcement to the public. See id. at 774, 109 S.Ct. 1468 (“[T]he FOIA’s central purpose is to ensure that the Government’s activities be opened to the sharp eye of public scrutiny, not that information about private citizens that happens to be in the warehouse of the Government be so disclosed.”). With this general understanding of the privacy interest protected by Exemption 7(C), we turn to the facts at hand. Carpenter brought this FOIA action to compel disclosure of information or records provided by or concerning Koresko in connection with the Government’s investigation and prosecution of Carpenter’s business activities. We agree with the district court that a person need not be the subject of the investigation to have a substantial privacy interest in maintaining the secrecy of his involvement with the investigation. See Maynard, 986 F.2d at 566; Fitzgibbon" }, { "docid": "573258", "title": "", "text": "disclose the document at issue here. Turning first to Exemption 7(C), the requested document contains various names, initials, and identifying marks of FBI agents and other government employees involved in processing this record, as well as references to third parties, identified directly by name or description or indirectly by file designation numbers. The defendant argues that all of the foregoing information is protected from disclosure because its release “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” § 552(b)(7)(C). When balancing the privacy interests against the public interest in disclosure as Exemption 7(C) requires, United States Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 109 S.Ct. 1468, 1476, 103 L.Ed.2d 774 (1989); King, 830 F.2d at 233, the Court holds that the privacy interests take precedence in this case. The United States Court of Appeals for this Circuit has admonished repeatedly “that disclosing the identity of targets of law-enforcement investigations can subject those identified to embarrassment and potentially more serious reputational harm,” and that “[ojther persons involved in the investigation—witnesses, informants, and investigating agents—also have a substantial interest in seeing that their participation remains secret.” Third parties discussed in investigatory files may have a similarly strong interest in nondisclosure. King, 830 F.2d at 233 (footnotes omitted) (quoting Senate of Puerto Rico v. United States Dep’t of Justice, 823 F.2d 574, 588 [D.C.Cir.1987)). Nor are government officials—in this instance, FBI agents and oth-sr government personnel involved in processing the document at issue—stripped of cheir privacy interests merely by virtue of their employment by the federal government. See Bast v. United States Dep’t of Justice, 665 F.2d 1251, 1255 (D.C.Cir.1981); Lesar v. United States Dep’t of Justice, 336 F.2d 472, 487 (D.C.Cir.1980); see also Stone, 727 F.Supp. at 664-66. Finally, the defendant has declared that there is no reliable information and no basis for assuming, under its FOIA guidelines, that my of the individuals referred to in the document are dead. See Mazauskas Supplemental Declaration ÍI 4(a). By contrast, the Court can perceive of no oublic interest in the names of and references" }, { "docid": "22050488", "title": "", "text": "103 L.Ed.2d 774 (1989). The FBI asserted three interests warranting privacy protection: (1) the names and initials of low-level FBI agents and support personnel; (2) the names and identifying data of third parties interviewed in the course of the FBI's investigation; and (3) the names and identifying data of third parties mentioned as subjects of the FBI's investigation. The FBI's declaration details the potential for harassment, reprisal or embarrassment if this information is disclosed. FBI agents, support personnel, confidential sources, and investigatory targets all have significant privacy interests in not having their names revealed. New England Apple Council v. Donovan, 725 F.2d 139, 142 (1st Cir.1984) (career public servants); Safecard, 926 F.2d at 1205 (investigatory targets); Fitzgibbon, 911 F.2d at 767 (suspects, witnesses, and investigators all have strong privacy interest \"in not being associated unwarrantedly with alleged criminal activity.\"). The Supreme Court recently held that the only cognizable \"public interest\" for purposes of FOIA is \"the citizens' right to be informed about `what their government is up to.'\" Reporters Committee, 489 U.S. at 773, 109 S.Ct. at 1481. \"That purpose ... is not fostered by disclosure of information about private citizens that is accumulated in various governmental files but that reveals little or nothing about an agency's own conduct.\" Id.; Federal Labor Relations Auth. (FLRA) v. United States Dept. of Navy, 941 F.2d 49, 57 (1st Cir.1991) (\"[w]hatever non-zero privacy interest at stake, under Reporters Committee, that interest cannot be outweighed by a public interest in disclosure — whatever its weight or significance — that falls outside of the FOIA-cognizable public interest in permitting the people to know what their government is up to.\"); cf. Providence Journal Co. v. United States Dept. of Army, 981 F.2d 552, 568 (1st Cir.1992) (public has interest in disclosure of governmental misconduct by high ranking agency officials). Plaintiff here has failed to suggest how the disclosure of the names would reveal what the government is up to. We need not, therefore, dwell upon the balance between privacy and public interests: \"something ... outweighs nothing every time.\" Fitzgibbon, 911 F.2d at 768 (quoting NARFE v." }, { "docid": "13128023", "title": "", "text": "the FOIA had in mind.” 489 U.S. at 765-66, 109 S.Ct. 1468. The central purpose of the FOIA is to reveal government action, not to expose the actions of private third parties and their participation in law enforcement to the public. See id. at 774, 109 S.Ct. 1468 (“[T]he FOIA’s central purpose is to ensure that the Government’s activities be opened to the sharp eye of public scrutiny, not that information about private citizens that happens to be in the warehouse of the Government be so disclosed.”). With this general understanding of the privacy interest protected by Exemption 7(C), we turn to the facts at hand. Carpenter brought this FOIA action to compel disclosure of information or records provided by or concerning Koresko in connection with the Government’s investigation and prosecution of Carpenter’s business activities. We agree with the district court that a person need not be the subject of the investigation to have a substantial privacy interest in maintaining the secrecy of his involvement with the investigation. See Maynard, 986 F.2d at 566; Fitzgibbon v. CIA 911 F.2d 755, 767 (D.C.Cir.1990). Rather, precedents suggest that individuals maintain a privacy interest under the FOIA in their identity as government informants and in not being positively associated with a criminal matter. See, e.g., Maynard, 986 F.2d at 566; Fitzgibbon, 911 F.2d at 767. Although Koresko is not, strictly speaking, a government informant, his privacy interest is analogous to that of an informant. This Court has long protected the identities of witnesses and informants in law enforcement records. Maynard, 986 F.2d at 566 (stating that “FBI agents, support personnel, confidential sources, and investigatory targets all have significant privacy interests in not having their names revealed”); New England Apple Council v. Donovan, 725 F.2d 139, 142 (1st Cir.1984); see also Fitzgibbon, 911 F.2d at 767 (“[PJersons involved in FBI investigations — even if they are not the subject of the investigation — ‘have a substantial interest in seeing that their participation remains secret.’ ”). While Koresko’s identity is known and Carpenter alleges that he assisted the Government in its prosecution, it is a" } ]

[ { "docid": "22082741", "title": "", "text": "confession at guilt stage); Clemons v. Mississippi, 494 U. S. 738 (1990) (unconstitutionally broad jury instructions at sentencing stage); Satterwhite v. Texas, 486 U. S. 249 (1988) (unconstitutional admission of evidence at sentencing stage), and we left, a question similar to the one presented here open in another capital case, Ring v. Arizona, 536 U. S. 584, 609, n. 7 (2002) (“We do not reach the State’s assertion that any error was harmless because a pecuniary gain finding was implicit in the jury’s guilty verdict”). In relying on the absence of precedent to distinguish our noncapital cases, and to hold that harmless-error review is not available for this type of Eighth Amendment claim, the Sixth Circuit exceeded its authority under § 2254(d)(1). A federal court may not overrule a state court for simply holding a view different from its own, when the precedent from this Court is, at best, ambiguous. As the Ohio Court of Appeals’ decision does not conflict with the reasoning or the holdings of our precedent, it is not “contrary to . . . clearly established Federal law.” The question then becomes whether the Ohio Court of Appeals’ determination is an “unreasonable application of clearly established Federal Jaw.” §2254(d)(1) (emphasis added; punctuation omitted). A constitutional error is harmless when “it appears ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ” Neder, supra, at 15 (quoting Chapman v. California, 386 U. S. 18, 24 (1967)); see also Delaware v. Van Arsdall, 475 U. S. 673, 681 (1986). We may not grant respondent’s habeas petition, however, if the state court simply erred in concluding that the State’s errors were harmless; rather, habeas relief is appropriate only if the Ohio Court of Appeals applied harmless-error review in an “objectively unreasonable” manner. Lockyer v. Andrade, 538 U. S. 63, 75-77 (2003); see also Woodford v. Visciotti, 537 U. S. 19, 25 (2002) (per curiam); Williams, supra, at 410 (An “unreasonable application of federal law is different from an incorrect application of federal law”). The Ohio Court of Appeals’ conclusion was hardly objectively unreasonable." } ]

[ { "docid": "8852325", "title": "", "text": "time of the offense from the abused childhood and the mental retardation of Penry as being a different type of evidence to which a jury could give full mitigative effect under the Texas special issues. Johnson, 509 U.S. at 369, 113 S.Ct. 2658. IV. A. The decisions of the Texas Court of Criminal Appeals regarding Hernandez’s Sixth and Eighth Amendment claims were “contrary to, and involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court,” 28 U.S.C. § 2254(d)(1). The next appropriate step in the required analysis is to determine whether and to what extent any harmless error rule is applicable to the constitutional error underlying each state-court decision. In Arizona v. Fulminante, 499 U.S. 279, 307-08, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), the Supreme Court recognized two categories of constitutional violations, which it characterized as “trial error” and “structural defects.” Trial error “oeeur[s] during the presentation of the case to the jury,” and is amenable to harmless-error analysis because it “may ... be quantita tively assessed in the context of other evidence presented in order to determine [the effect it had on the trial].” Id. Structural defects “in the constitution of the trial mechanism, which defy analysis by ‘harmless-error’ standards!,]” id. at 309, 111 S.Ct. 1246, “require! ] automatic reversal of the conviction because they infect the entire trial process.” Brecht v. Abrahamson, 507 U.S. 619, 629-30, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (citing Fulminante, 499 U.S. at 309, 111 S.Ct. 1246). Prior to the AEDPA, in reviewing petitions for habeas relief with respect to constitutional “trial” errors, we determined whether a constitutional violation was harmless error by asking whether the error “‘had substantial and injurious effect or influence in determining the jury’s verdict.’ ” Brecht, 507 U.S. at 623, 113 S.Ct. 1710 (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). Under this standard, however, “where the record [was] so evenly balanced that a conscientious judge is in grave doubt as to the harmlessness of the error,” the petitioner would prevail. O’Neal v. McAninch," }, { "docid": "3893288", "title": "", "text": "Studer; and the trial court’s exclusion of certain evidence. We recite the relevant facts with our discussion of each specific claim below. STANDARD OF REVIEW Under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), Musladin can prevail on a claim “that was adjudicated on the merits in State court” only if he can show that the adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). A state court decision will be “contrary to” federal law if it “applies a rule that contradicts the governing law set forth in [Supreme Court] cases” or “confronts a set of facts that are materially indistinguishable from” a Supreme Court case yet reaches a different result. Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). It will involve an “unreasonable application of’ federal law only if it is “objectively unreasonable.” Id. at 409, 120 S.Ct. 1495. On habeas review, we assess the prejudicial impact of most constitutional errors by asking whether they “had substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)); see also Fry v. Pliler, 551 U.S. 112, 127 S.Ct. 2321, 2328, 168 L.Ed.2d 16 (2007) (Brecht standard applies whether or not the state court recognized the error and reviewed it for harmlessness). As we discuss further below, however, some constitutional errors do not require that the petitioner demonstrate prejudice. See Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991); United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). Furthermore, where a habeas petition governed by AEDPA alleges ineffective assistance of counsel under" }, { "docid": "19330075", "title": "", "text": "harmless beyond a reasonable doubt. 386 U.S. at 24, 87 S.Ct. 824. The Court has also repeatedly made clear, however, that the standards that apply on collateral review may differ from those that would apply on direct review. See Brecht, 507 U.S. at 634, 113 S.Ct. 1710. To that end, the Court has held that a federal court on collateral review of a state appellate court’s application of Chapman should not apply the same harmless error standard but instead should use an “actual prejudice” standard. Id. at 637, 113 S.Ct. 1710 (quoting United States v. Lane, 474 U.S. 438, 449, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986)) (internal quotation marks omitted). Specifically, as the Court explained in Brecht v. Abrahamson, a habeas petitioner in such a case must show that the error “had substantial and injurious effect or influence in determining the jury’s verdict.” Id. (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)) (internal quotation marks omitted). That was the law before Congress intervened. In 1996, Congress passed AEDPA, which provides that a habeas petition may not be granted unless the state court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). In Mitchell v. Esparza, 540 U.S. 12, 18-19, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003) (per curiam), the Court applied the AEDPA standard to a state court’s use of Chapman, explaining that “when a state court determines that a constitutional violation is harmless [under Chapman ], a federal court may not award habeas relief under § 2254 unless the harmlessness determination itself was unreasonable.” Fry, 551 U.S. at 119, 127 S.Ct. 2321 (describing Mitchell). Four years later, the Court returned to this field in Fry v. Pliler. In Fry, the state courts had not applied Chapman to determine whether a constitutional error at trial was harmless. See id. at 115, 127 S.Ct. 2321. Without overruling Esparza, the Court ruled that the Brecht standard still governs, regardless of whether the state court" }, { "docid": "23239615", "title": "", "text": "of [the Supreme Court] and nevertheless arrives at a result different from” the result reached by the Supreme Court. Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). It is not enough that the state court decided an issue contrary to a lower federal court’s conception of how the rule should be applied; the state court decision must be “diametrically different” and “mutually opposed” to the Supreme Court decision itself. Id. at 406, 120 S.Ct. 1495. A state court decision involves an “unreasonable application” of federal law if “the state court identifies the correct governing legal principle from [Supreme Court] decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413, 120 S.Ct. 1495. Even if the state court decision was contrary to, or involved an unreasonable application of, clearly established federal law, our analysis is not complete. Unless the error is a structural defect in the trial that defies harmless-error analysis, we must apply the harmless-error standard of Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), and O’Neal v. McAninch, 513 U.S. 432, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995). Turrentine, 390 F.3d at 1189. Under Brecht, habeas relief is proper only if the error had a “ ‘substantial and injurious effect or influence in determining the jury’s verdict.’ ” Brecht, 507 U.S. at 623, 113 S.Ct. 1710 (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). Under O’Neal, a “substantial and injurious effect” exists when the court finds itself in “grave doubt” about the effect of the error on the jury’s verdict. O’Neal, 513 U.S. at 435, 115 S.Ct. 992. “Grave doubt” exists where the issue of harmlessness is “so evenly balanced that [the court] feels [itself] in virtual equipoise as to the harmlessness of the error.” Id. The § 2254(d) standard does not apply to issues not decided on the merits by the state court. Turrentine, 390 F.3d at 1189; see Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir.1999) (noting that the § 2254" }, { "docid": "6952076", "title": "", "text": "that had occurred, any error in admitting the statements should be considered harmless because it lacked a “substantial and injurious effect or influence in determining the jury’s verdict,” as required by Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (internal quotation marks omitted), for issuance of ha-beas relief. Judge Jones adopted the Magistrate Judge’s recommendations, agreeing that any error in failing to suppress the interrogation was harmless in light of the testimony of the two eyewitnesses. Cruz v. Miller, No. 98 Civ. 4311 BSJ, 1999 WL 1144280 (S.D.N.Y. Dec.2,1999). Discussion Although the District Court denied relief on the ground that, if there was error, it was harmless, we need not reach the harmlessness issue, which would require a careful assessment of the significance of Cruz’s responses during the sidewalk interrogation against the totality of the evidence, including the probative force of the eye-witnesses’ testimony and the extent to which that force was diminished by substantial attacks on their credibility. Instead, we resolve the appeal by considering the issue on which the state courts rested their decision: whether Cruz was subjected to custodial interrogation requiring Miranda warnings. In considering that issue, we bear in mind that, although “custody” for purposes of Miranda warnings is a mixed question of law and fact as to which state courts were owed no deference prior to AEDPA, see Thompson v. Keohane, 516 U.S. 99, 112-16, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995), after AEDPA habeas corpus may not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;.... 28 U.S.C.A. § 2254(d)(1) (emphasis added). Thus, our task is to determine whether the state courts, in ruling that the sidewalk questioning of Cruz did not have to be preceded by Miranda warnings, “unreasonably appli[ed]” Supreme Court law. In rejecting Cruz’s claim because his responses were “not the product" }, { "docid": "9463130", "title": "", "text": "posed. I agree with the District Court that Arroyo plainly should have known that his question was likely to elicit an incriminating response. I find unreasonable the Appellate Division’s conclusion that Arroyo’s question was not reasonably likely to elicit an incriminating response, see People v. Rosa, 294 A.D.2d 159, 160, 743 N.Y.S.2d 400, 401 (1st Dep’t 2002), and therefore I believe that the-state court’s adjudication of the claim “resulted in a decision that ... involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). II. Harmless Error Review I do not believe the constitutional error in admitting Rosa’s statement was harmless. This Court has not yet decided what harmless error standard applies when a constitutional error is being evaluated for harmlessness for the first time on federal habeas review of a state court conviction. On direct appeal, courts apply the standard set forth in Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), which provides that “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was' harmless beyond a reasonable doubt.” Id. at 24, 87 S.Ct. 824. In 1993, the Supreme Court held in Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), that Chapman did not apply on collateral review. Rather the standard to be applied is “whether the error ‘had substantial and injurious effect or influence in determining the jury’s verdict.’ ” Id. at 637, 113 S.Ct. 1710 (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). After the enactment of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), Pub.L. No. 104-132, 100 Stat. 1214 (1996), it was “an open question in this circuit whether, following the passage of AEDPA, the applicable test on habeas review of a state conviction remains the one set forth in Brecht, or instead should be a determination whether the state court’s decision was contrary to, or involved an unreasonable application of Chapman.”" }, { "docid": "9878431", "title": "", "text": "the district court denied Zappulla’s petition by holding that, although the confession was erroneously admitted, admission of the confession was harmless in light of the overwhelming evidence of guilt. Zappulla, 296 F.Supp.2d at 319. In so holding, the district court specifically adopted the reasoning of the Appellate Division, set forth above, with little additional analysis. Id. The district court, however, granted Zappulla a certificate of appealability on the question of whether the erroneous admission of the confession was harmless. Id. at 320. On December 22, 2003, this Court appointed counsel to represent Zappulla in this appeal. DISCUSSION “This Court reviews de novo the District Court’s denial of the petition [for habeas corpus].” Francolino v. Kuhlman, 365 F.3d 137, 140 (2d Cir.2004). I. Harmless Error Standard Where a confession has been erroneously admitted in violation of the defendant’s Miranda rights, this constitutional error is subject to a harmless error analysis. See Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991); Brown v. Keane, 355 F.3d 82, 91 (2d Cir.2004) (“A habeas petitioner is entitled to relief only if the constitutional error at trial was not harmless.”). Prior to the enactment of the Antiter-rorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214, the Supreme Court held in Brecht v. Abrahamson that, on collateral review of a state conviction, an error is harmless if it did not have a “substantial and injurious effect or influence in determining the jury’s verdict.” 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (internal quotation marks omitted). In Chapman v. California, the Court held that on direct review of a criminal convic tion, an error may be overlooked only if it is “harmless beyond a reasonable doubt.” 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Under AEDPA, a- federal ha-beas court may grant-the writ if the state court’s decision constitutes an “unreasonable application” of “clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). We have previously noted that it remains “an open" }, { "docid": "11864638", "title": "", "text": "the constraints imposed by Bruton. They and the prosecutor apparently agreed that the Commonwealth would introduce a redacted version of Bond’s co-defendant’s confession. This version replaced Bond’s name with the words “another guy” at the points where Wheeler implicated Bond in his confession. The prosecutor unfortunately failed to keep to the parties’ agreement. He used the term “the killer” instead of the words “another guy” in his opening and, at the end of that address to the jury, identified Bond by name: “He [Bond’s co-defendant] ... admits that he saw Bond shoot and kill Mr. Lee.” Bond’s counsel moved for a mistrial and severance. The trial court rejected that motion. It instead instructed the jury that opening statements do not constitute evidence and allowed the trial to proceed. The Pennsylvania Supreme Court upheld the trial court’s decision on appeal and in post-conviction proceedings. It concluded that the redactions were sufficient and that the prosecutor’s identification of Bond was harmless error in light of the trial court’s instructions to the jury and the independent evidence of Bond’s guilt. The District Court applied the AEDPA standard of review. See 28 U.S.C. § 2254(d)(l)-(2). It held that the state courts did not apply governing law unreasonably in holding harmless any Confrontation Clause violation. The Commonwealth does not contest the existence of error under the Confrontation Clause. It renews its argument, however, that any error was harmless. We thus turn to the same question posed to the District Court. But our analysis differs somewhat in light of Fry v. Pliler, 551 U.S. - — •, 127 S.Ct. 2321, 2328, 168 L.Ed.2d 16 (2007), which the Supreme Court issued after the District Court’s opinion. Fry instructs us to perform our own harmless error analysis under Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), rather than review the state court’s harmless error analysis under the AEDPA standard. See Fry, 127 S.Ct. at 2328. The Supreme Court explained in Brecht that an error is harmless if it did not have “substantial and injurious effect or influence in determining the jury’s verdict.” 507" }, { "docid": "16820858", "title": "", "text": "U.S.C. § 2258. A district court’s decision to grant or deny a petition for writ of habeas corpus is reviewed de novo. Bribiesca v. Galaza, 215 F.3d 1015, 1018 (9th Cir.2000). Under the Antiterrorism and Effective Death Penalty Act of 1996, we grant habeas relief only when the state court decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). “When analyzing a claim that there has been an unreasonable application of federal law, we must first consider whether the state court erred; only after we have made that determination may we then consider whether any error involved an unreasonable application of controlling law within the meaning of § 2254(d).” Van Tran v. Lindsey, 212 F.3d 1143, 1155 (9th Cir.), cert. denied, — U.S. -, 121 S.Ct. 340, 148 L.Ed.2d 274 (2000). The latter step is a review for clear error. Further, we apply the Brecht standard to determine whether a constitutional error was harmless. Habeas relief is warranted only if the error had a “substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993); Bains v. Cambra, 204 F.3d 964, 977-78 (9th Cir.) cert. denied, — U.S. -, 121 S.Ct. 627, 148 L.Ed.2d 536 (2000). III. Analysis There is no denying that the precluded journal was admissible as a matter of California evidence law. The California Court of Appeal so found and that finding is binding on us. See Franklin v. Henry, 122 F.3d 1270, 1273 (9th Cir.1997). The questions then become whether the erroneous exclusion was contrary to or an unreasonable application of clearly established Federal law as determined by the Supreme Court of the United States, and if so, whether the error was also “objectively unreasonable.” If the error was “objectively unreasonable,” we then inquire whether it had a substantial and injurious effect on the jury’s verdict. A. Was a constitutional" }, { "docid": "8854474", "title": "", "text": "of the United States,” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” It is undisputed that Whitmore’s claim of trial error was adjudicated on the mer its in state court on direct appeal. The Missouri Court of Appeals determined that the prosecutor’s use of Whitmore’s post-arrest silence and request for counsel was “improper,” but nevertheless held that the errors were harmless beyond a reasonable doubt because “there was overwhelming evidence supporting” the convictions. State v. Whitmore, 948 S.W.2d 643, 647-48 (Mo.Ct.App.1997). In its order denying § 2264 relief, the District Court agreed that Doyle violations occurred at Whit-more’s trial, and also determined that the errors were harmless because they “could not have had a substantial and injurious effect upon the jury’s decision to convict” Whitmore. Whitmore v. Kemna, No. 98-0349-CV-W-4-P, slip op. at 17 (W.D.Mo. Apr. 8, 1999). In reaching its decision, the District Court applied the harmless error standard of Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 358 (1993), because the state court already had applied the more rigorous “harmless beyond a reasonable doubt” standard set out in Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). See Brecht, 507 U.S. at 636, 113 S.Ct. 1710 (“[I]t scarcely seems logical to require federal habeas courts to engage in the identical approach to harmless-error review that Chapman requires state courts to engage in on direct review.”). The less demanding Brecht harmless error standard has required federal courts on collateral habe-as review of trial error to determine “whether the error ‘had substantial and injurious effect or influence in determining the jury’s verdict,’” that is, whether the petitioner can show actual prejudice. Id. at 637, 113 S.Ct. 1710 (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). The parties suggest that, in reviewing § 2254 claims of trial error, federal courts should consider the question of harmless error again — notwithstanding a Chapman analysis by the state court — and apply the Brecht" }, { "docid": "6380960", "title": "", "text": "crime was the testimony of four informants, all of whom approached the State with supposed information about Fowler’s ease in the hopes of receiving favorable deals and sentencing reductions for their own criminal activity.” Brief of Appellant at 33. On direct review, “[a] constitutional error is harmless when it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Mitchell v. Esparza, 540 U.S. 12, 17-18, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003) (per curiam) (internal quotation marks omitted); see also Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). On federal habeas review, however, we apply the more onerous, harmless error analysis set forth in Brecht v. Abrahamson, 507 U.S. 619, 631, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). “Under that standard, an error is harmless unless it had a substantial and injurious effect or influence in determining the jury’s verdict.” Fry v. Pliler, 551 U.S. 112, 116, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007) (internal quotation marks omitted). We “assess the prejudicial impact of constitutional error in a state-court criminal trial under the ‘substantial and injurious effect’ standard set forth in Brecht ... whether or not the state appellate court recognized the error and reviewed it for harmlessness under the [Chapman] standard.” Fry, 551 U.S. at 121-22, 127 S.Ct. 2321 (noting that “it certainly makes no sense to require formal application of both tests (AEDPA/ Chapman and Brecht) when the latter obviously subsumes the former”). And “where an error is harmful under Brecht, any state court decision declaring it harmless must have unreasonably applied Chapman. As a result, any error satisfying Brecht will also satisfy AEDPA’s deference requirements.” Bauberger v. Haynes, 632 F.3d 100, 104 (4th Cir.2011). “Federal habeas courts must always review constitutional errors in state trials under Brecht, but they need not debate whether a state court’s harmless error determination also unreasonably applied Chapman.” Id. Applying the Brecht standard, we conclude that the admission of Guzman’s in-court identification, even if error, was harmless. As the state court observed, there was abundant other evidence presented" }, { "docid": "23539194", "title": "", "text": "[the Supreme Court has] done on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). A state court decision involves an “unreasonable application” of federal law “if the state court correctly identifies the governing legal principle from [Supreme Court] decisions but unreasonably applies it to the facts of the particular case.” Id. Finally, even if the state court adjudication was contrary to or involved an unreasonable application of clearly established federal law, our inquiry is not complete. Unless the error is a “structural defeet[] in the constitution of the trial mechanism, which def[ies] analysis by harmless-error standards,” Brecht v. Abrahamson, 507 U.S. 619, 629, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), we must apply the harmless error standard of Brecht and O’Neal v. McAninch, 513 U.S. 432, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995). See Herrera v. Lemaster, 301 F.3d 1192, 1200 (10th Cir.2002). Under Brecht, habeas relief is not proper unless the error had a “substantial and injurious effect or influence in determining the jury’s verdict.” 507 U.S. at 623, 113 S.Ct. 1710. O’Neal addresses the situation where the court is in “grave doubt” about the likely effect of the error on the jury’s verdict — that is, where “the matter is so evenly balanced that [the court] feels [itself] in virtual equipoise as to the harmlessness of the error.” 513 U.S. at 435, 115 S.Ct. 992. In such a case, O’Neal instructs the Court to treat the error “as if it had a substantial and injurious effect or influence in determining the jury’s verdict.” Id. (quoting Brecht, 507 U.S. at 623, 113 S.Ct. 1710). On issues where the state court has not previously heard a habeas claim on the merits, the framework of § 2254 does not apply. Instead, we review the district court’s legal conclusions de novo and its factual findings for clear error. Mitchell v. Gibson, 262 F.3d 1036, 1045 (10th Cir.2001). If the district court’s factual findings depend entirely on the state court record, we independently review that record. Walker v. Gibson, 228 F.3d" }, { "docid": "11864639", "title": "", "text": "Bond’s guilt. The District Court applied the AEDPA standard of review. See 28 U.S.C. § 2254(d)(l)-(2). It held that the state courts did not apply governing law unreasonably in holding harmless any Confrontation Clause violation. The Commonwealth does not contest the existence of error under the Confrontation Clause. It renews its argument, however, that any error was harmless. We thus turn to the same question posed to the District Court. But our analysis differs somewhat in light of Fry v. Pliler, 551 U.S. - — •, 127 S.Ct. 2321, 2328, 168 L.Ed.2d 16 (2007), which the Supreme Court issued after the District Court’s opinion. Fry instructs us to perform our own harmless error analysis under Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), rather than review the state court’s harmless error analysis under the AEDPA standard. See Fry, 127 S.Ct. at 2328. The Supreme Court explained in Brecht that an error is harmless if it did not have “substantial and injurious effect or influence in determining the jury’s verdict.” 507 U.S. at 637, 113 S.Ct. 1710 (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). “Under this standard, habeas petitioners may obtain plenary review of their constitutional claims, but they are not entitled to habeas relief based on trial error unless they can establish that it resulted in actual prejudice.” Id. (quotation marks omitted). “When a federal judge in a habeas proceeding is in grave doubt about whether a trial error of federal law had substantial and injurious effect or influence in determining the jury’s verdict, that error is not harmless.” O’Neal v. McAninch, 513 U.S. 432, 436, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995) (quotation marks omitted). We conclude here that the error was harmless under Brecht. The prosecutor’s conduct raises serious questions as to his willingness to respect Bond’s rights under the Confrontation Clause. Yet, the Commonwealth presented such extensive evidence of Bond’s guilt that the error could not have had a substantial and injurious effect or influence in determining the jury’s verdict. Kim, who had" }, { "docid": "19816229", "title": "", "text": "there was insufficient evidence in the record to show that Jackson dealt drugs. Id. at 484-86 (Hannah, J., dissenting). II. We review the district court’s conclusions of law de novo and its factual findings for clear error. Palmer v. Clarke, 408 F.3d 423, 428 (8th Cir.2005). Under the Antiterrorism and Effective Death Penalty Act, a writ of habeas corpus may be granted only if the relevant state court decision was either “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Id. § 2254(d)(2). The standard for reviewing state trial errors under § 2254 is significantly narrower than that which we apply on direct review. See Fry v. Pliler, 551 U.S. 112, 121-22, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007). On direct review, constitutional error requires reversal unless the reviewing court concludes that the error was harmless beyond a reasonable doubt. See id. at 114, 127 S.Ct. 2321 (citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). In a habeas proceeding, however, federal courts may not grant relief unless the state trial error had a “substantial and injurious effect or influence in determining the jury’s verdict.” Id. at 116, 127 S.Ct. 2321 (quoting Brecht v. Abrahamson, 507 U.S. 619, 631, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)). Our review is therefore more circumscribed than the harmless error analysis undertaken by the Arkansas Supreme Court. The sole question before us is whether the state expert’s slinger and banger testimony had a substantial and injurious effect on the jury’s verdict. We conclude that it did not. The slinger and banger reference was cumulative of other evidence suggesting that Jackson was violent and involved in illegal drug trade. Jackson was repeatedly identified as the leader of a gang in which violence and drug dealing were commonplace. King and Pennington both claimed that Jackson ordered attacks on the Monroe Street Hustlers, and Bush" }, { "docid": "13319113", "title": "", "text": "n.28, 99 S.Ct. 2213. The relevant inquiry to determine whether the instructional error was of constitutional magnitude is whether the suggested conclusion — that Hall murdered Foth — is one that reason and common sense justify in light of the proved fact that Hall was in possession of Foth’s ring some time after Foth was killed. Proof that Hall possessed Foth’s ring does not make it “more likely than not” that Hall murdered Foth. The use of CALJIC 2.15 in this case constitutes an instructional error of constitutional magnitude, and the California Court of Appeal’s determination otherwise was objectively unreasonable. See Ulster Cty., 442 U.S. at 166, 99 S.Ct. 2213. B. Brecht Harmless'Error Review But the inquiry does not end the conclusion that the state court’s decision was unreasonable in finding no constitutional violation. Habeas relief on a trial error claim is appropriate only if the error results in “actual prejudice.” Davis v. Ayala, — U.S. -, 135 S.Ct. 2187, 2197, 192 L.Ed.2d 323 (2015) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)). Under the Brecht test for actual prejudice, “relief is proper only if the federal court has ‘grave doubt about whether a trial error of federal law had substantial and injurious effect or influence in determining the jury’s ver- diet.’ ” Mays v. Clark, 807 F.3d 968, 980 (9th Cir. 2015) (quoting Ayala, 135 S.Ct. at 2197-98). The Brecht standard is so stringent that it “subsumes” the AED-PA/Chapman standard for review of a state court determination of the harmlessness of a constitutional violation. Deck v. Jenkins, 814 F.3d at 954, 985 (quoting Fry v. Pliler, 551 U.S. 112, 120, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007)). We need not apply both a Brecht review and an AED-PA/Chapman review because “[a] determination that the error resulted in ‘actual prejudice’ [under Brecht] necessarily means that the state court’s harmless error determination was not merely incorrect, but objectively unreasonable.” Id. Even if we were to separately analyze the state court’s harmless error determination under AEDPA/Chapman before engaging in a separate Brecht analysis, we would" }, { "docid": "5665362", "title": "", "text": "ways of formulating that standard. See Perkins, 596 F.3d at 175-76. The Supreme Court announced the first approach in Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). Brecht permits federal courts to overturn a state conviction only when the constitutional violation “had substantial and injurious effect or influence in determining the jury’s verdict.” Id. at 637, 113 S.Ct. 1710 (internal quotation marks omitted). The Brecht standard incorporates the interests of “finality ... comity and federalism” applicable to habeas review and is therefore “less onerous” than the Chapman “harmless beyond a reasonable doubt” standard applied on direct review. Id. at 635-37, 113 S.Ct. 1710. In 1996, however, Congress amended 28 U.S.C. § 2254 to limit federal habeas relief to individuals incarcerated under state court decisions “contrary to, or involving] an unreasonable application of’ Supreme Court precedent. See 28 U.S.C. § 2254(d)(1). This gave rise to the second approach, which requires federal courts to “assess whether the state appellate court acted reasonably in determining that the error was ‘harmless ... beyond a reasonable doubt’ ” under Chapman. Perkins, 596 F.3d at 175, quoting Mitchell v. Esparza, 540 U.S. 12, 17-19, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003). Faced with these competing approaches, this Court recently stated that “[w]here a state appellate court has found that a state trial court committed a constitutional violation but has held that the violation was harmless, the standard of review for a federal court conducting habeas corpus review has not yet been clearly established.” Perkins, 596 F.3d at 175. And because the two approaches rarely produce different results, we have yet to settle the issue. Id. at 176. But see Gutierrez v. McGinnis, 389 F.3d 300, 306 (2d Cir.2004) (holding “that when a state court explicitly conducts harmless error review ... a habeas court must evaluate whether the state unreasonably applied Chapman ”). However, a recent Supreme Court decision appears to have settled the debate. In Fry v. Pliler, the Court held that “in § 2254 proceedings a court must assess the prejudicial impact of constitutional error in a state-court criminal trial" }, { "docid": "179056", "title": "", "text": "constitutional trial error under clearly established federal law as determined by the Supreme Court. See Darden, 477 U.S. at 181, 106 S.Ct. 2464. The misstatements lowered the prosecution’s burden of proof, and therefore resulted in “actual prejudice.” See Davis, 135 S.Ct. at 2197. In view of these conclusions, we REVERSE the judgment of the district court and REMAND with instructions to grant the petition unless the State agrees to grant Deck a new trial within a reasonable period of time. See Stark v. Hickman, 455 F.3d 1070, 1080 (9th Cir.2006). REVERSE AND REMAND. . Under AEDPA, a federal court may grant habeas relief based on trial error that a state court has previously determined to be harmless only if the state court's determination involved an “unreasonable” application of \"clearly established ... law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). The Supreme Court recently emphasized in Davis v. Ayala that \"a state-court decision is not unreasonable if fairminded jurists could disagree on [its] correctness.” Davis v. Ayala, - U.S. -, 135 S.Ct. 2187, 2199, 192 L.Ed.2d 323 (2015) (internal quotation marks omitted) (alteration in original). . See Ayala v. Wong, 756 F.3d 656 (9th Cir.2013), rev’d and remanded sub nom. Davis v. Ayala, - U.S. -, 135 S.Ct. 2187, 2198, 192 L.Ed.2d 323 (2015). Ayala held that a petitioner cannot show \"actual prejudice” under Brecht, nor a right to federal habeas relief, unless he first demonstrates that the Chapman /AEDPA standard is met, i.e., that no \"fairminded jurist could agree” with the state court’s application of well-established Supreme Court precedent. . In Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), the Supreme Court held that a prisoner is not entitled to habeas relief unless he can show that he was \"actually] prejudice[d],\" by a trial court error of constitutional magnitude, meaning that the trial court error had a \"substantial and injurious effect or influence ... [on] the jury's verdict” (the “Brecht standard”). Id. at 627, 637, 113 S.Ct. 1710. The Court found that principles of \"finality,” \"comity,” and \"federalism”" }, { "docid": "19151512", "title": "", "text": "where he could cross-examine him and try to expose his accusation as a lie.”). It is therefore difficult to interpret Crawford’s cross-examination requirement as failing to presuppose that the defendant has the ability to cross-examine the declarant about the out-of-court statements that are later sought to be admitted against him. Id. at 43-50, 57-59, 124 S.Ct. 1354. Indeed, that appears to be the whole point of the rule. Regarding this issue, however, we need not decide whether the state court unreasonably applied clearly established federal law as determined by the Supreme Court because a confrontation violation, if any, was harmless. “[W]hen a state court determines that a constitutional violation is harmless, a federal court may not award habeas relief under § 2254 unless the harmlessness determination itself was unreasonable.” Fry v. Pliler, 551 U.S. 112, 119, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007). Generally, a constitutional error is harmless only if a court is “able to declare a belief that it was harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). But a federal court reviewing a § 2254 petition must assess the prejudicial impact of even a constitutional error under the harmlessness standard of Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), under which “an error requires reversal only if it ‘had substantial and injurious effect or influence in determining the jury’s verdict.’ ” Id. at 631, 113 S.Ct. 1710 (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). See Fry, 551 U.S. at 121, 127 S.Ct. 2321. This standard is even more difficult for a § 2254 petitioner to meet than a requirement that the petitioner demonstrate that the state court’s determination of harmless constitutional error was itself unreasonable, meaning that we do not need to formally apply “both tests {NEWA/Chap-man and Brecht)” as “the latter obviously subsumes the former.” Fry, 551 U.S. at 120, 127 S.Ct. 2321. The Brecht standard is not satisfied here. In determining whether a Confrontation Clause violation was prejudicial, we reference" }, { "docid": "8854473", "title": "", "text": "that the prosecutor violated Whitmore’s constitutional rights under Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), so we will not address that issue. The only question before us is whether the Doyle violations require that the writ issue. To the extent we are reviewing findings of fact made by the Missouri courts, we will presume such findings to be correct. See 28 U.S.C. § 2254(e)(1). Otherwise, we review the District Court’s factual determinations for clear error and its conclusions of law de novo. See Dye v. Stender, 208 F.3d 662, 665 (8th Cir.2000). Whitmore filed his habeas case after § 2254 was amended by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (AED-PA). Under the revised § 2254(d), relief “shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless” the state court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” It is undisputed that Whitmore’s claim of trial error was adjudicated on the mer its in state court on direct appeal. The Missouri Court of Appeals determined that the prosecutor’s use of Whitmore’s post-arrest silence and request for counsel was “improper,” but nevertheless held that the errors were harmless beyond a reasonable doubt because “there was overwhelming evidence supporting” the convictions. State v. Whitmore, 948 S.W.2d 643, 647-48 (Mo.Ct.App.1997). In its order denying § 2264 relief, the District Court agreed that Doyle violations occurred at Whit-more’s trial, and also determined that the errors were harmless because they “could not have had a substantial and injurious effect upon the jury’s decision to convict” Whitmore. Whitmore v. Kemna, No. 98-0349-CV-W-4-P, slip op. at 17 (W.D.Mo. Apr. 8, 1999). In reaching its decision, the District Court applied the harmless error standard of Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d" }, { "docid": "179051", "title": "", "text": "the prosecutor’s uncorrected misstatements of the law rendered Deck’s trial fundamentally unfair, in violation of his clearly established constitutional rights. II. The constitutional violation was prejudicial. Our inquiry does not end with the conclusion that the CCA’s finding of no constitutional error was unreasonable. As explained, even on direct review a constitutional trial error will not warrant reversal if it was harmless beyond a reasonable doubt. See Chapman, 386 U.S. at 24, 87 S.Ct. 824. In a collateral proceeding, the test is more forgiving to the prosecution. Habeas petitioners are not entitled to relief based on trial error unless the error resulted in “actual prejudice.” Davis v. Ayala, — U.S. —, 135 S.Ct. 2187, 2197, 192 L.Ed.2d 323 (2015) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)). “Under th[e] [Brecht ] test, relief is proper only if the federal court has ‘grave doubt about whether a trial error of federal law had substantial and injurious effect or influence in determining the jury’s verdict.’ ” Id. at 2197-98 (quoting O’Neal v. McAninch, 513 U.S. 432, 436, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995)); see also O’Neal, 513 U.S. at 437, 115 S.Ct. 992 (defining “grave doubt” as being in “virtual equipoise as to the harmlessness of the error”). Because it is more stringent, the Brecht test “subsumes” the AEDVA/Chap-man standard for review of a state court determination of the harmlessness of a constitutional violation. Fry v. Pliler, 551 U.S. 112, 120, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007). A federal habeas court therefore need not formally apply both the Brecht test and the AEDPA standard; it is sufficient to apply Brecht alone. Id. A determination that the error resulted in “actual prejudice,” Brecht, 507 U.S. at 637, 113 S.Ct. 1710, necessarily means that the state court’s harmlessness determination was not merely incorrect, but objectively unreasonable, Davis, 135 S.Ct. at 2198-99. A separate AEDPAJChapman determination is not required. As explained, under clearly established Supreme Court law, the constitutional dimension of the prosecutor’s misstatements turns entirely on the issue of prejudice: the error rises to the" } ]

[ { "docid": "971918", "title": "", "text": "LEVIN H. CAMPBELL, Circuit Judge. Everett C. Carlson and three others were charged in count one of a three-count indictment as follows: “That on or about July 1, 1976, in the Southern Division of the District of Maine, EVERETT C. CARLSON, JOSEPH A. ACETO, RICHARD J. PICARIELLO and EDWARD P. GULLION, JR., did transport in interstate commerce, from Portland, Maine, to the District of Massachusetts, explosives, that is, about 75 sticks of dynamite, blasting caps, and timing devices for bombs, with knowledge and intent that the same be used to intimidate individuals, and to unlawfully damage and destroy buildings, vehicles and other real and personal property, that is, a National Guard truck at the National Guard Armory, Dorchester, Massachusetts, an airliner at Logan Airport, Boston, Massachusetts, and the Essex County Courthouse, Newburyport, Massachusetts, in violation of Title 18, United States Code, Sections 844(d) and 2.” Section 844(d) of Title 18 makes it a crime for one to transport “in interstate or foreign commerce any explosive with the knowledge or intent that it will be used to kill, injure or intimidate any individual or unlawfully to damage or destroy any building, vehicle or other real or personal property . . .” Carlson was tried separately from his three codefendants. At the close of the Government’s case, he moved for a judgment of acquittal, in part on the ground that the Government failed to prove that at the time of the interstate transportation he had an intent to bomb the three targets named in the indictment. The district court denied the motion. The defense then rested and renewed the motion, which was again denied. The district court charged the jury on the element of intent as follows: “With respect to the second element, that is, the element of intent, I instruct you that in order to convict Mr. Carlson, you must be satisfied, beyond a reasonable doubt, that at the time of the transportation from Maine to Massachusetts, he knew and intended that the explosives, that is, the dynamite, blasting caps and timing devices for bombs, were to be used to intimidate" } ]

[ { "docid": "139875", "title": "", "text": "specifically intended that Ms. Martin transport the device in interstate commerce; and (3) the evidence at trial was insufficient to support such a finding. While this is a clever argument, it is founded on the erroneous assumption that the specific inclusion of § 2(b) in the indictment somehow alters the nature of the offense with which Michaels is charged. In fact, the specific inclusion of § 2(b) is insignificant. Whether specified or not, § 2(b) is considered embodied in full in every federal indictment. United States v. Maselli, 534 F.2d 1197, 1200 (6th Cir.1976); United States v. Lester, 363 F.2d 68, 72 (6th Cir.1966), cert. denied, 385 U.S. 1002, $87 S.Ct. 705, 17 L.Ed.2d 542 (1967). Thus, Michaels’ indictment under §§ 844(d) and 2(b) is functionally identical to an indictment under § 844(d) alone. Accordingly, the intent requirement, as discussed above, relates only to the use of the device to kill, injure, or intimidate, and not to the transportation element. 2. Sufficiency of the Evidence a. Standard of Review Sufficient evidence existed if, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original); accord United States v. Marabelles, 724 F.2d 1374, 1377 (9th Cir.1984); United States v. Christopher, 700 F.2d 1253, 1261 (9th Cir.1983). Reversal is required only when “no rational trier of fact could find guilt beyond a reasonable doubt.” Jackson, 443 U.S. at 317, 99 S.Ct. at 2788; see also Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1941). b. Analysis The evidence was sufficient to support Michaels’ conviction under § 844(d) if any rational trier of fact could have found beyond a reasonable doubt that Michaels: (1) transported or received in interstate commerce (2) any explosive (3) with the knowledge or intent that it would be used to kill, injure, or intimidate any individual. See Carlson, 561 F.2d at 108. When a" }, { "docid": "22417137", "title": "", "text": "was predicated upon Kikumura’s conviction under 18 U.S.C. § 844(d), which makes it unlawful to transport any explosive in interstate commerce “with the knowledge or intent that it will be used to kill, injure, or intimidate any individual or unlawfully to damage or destroy any building, vehicle, or other real or personal property.” Kikumura’s offense level of 18 was calculated by application of § 2K1.6(a)(1). Kikumura contends that “18 U.S.C. § 844(d) has intent to destroy property or to kill or injure people as a material element of the offense.” Appellant’s Br. at 17 (emphasis in original); see also id. at 20 (“[T]he statute presumes that the ‘average’ § 844(d) violator intends to unlawfully blow something up (including people)_”). Therefore, Kikumura reasons, the guideline to which that statute is referenced, § 2K1.6, necessarily takes into account his specific intent to kill people. Kikumura glosses over the import of the precise statutory language. The statute’s usage of the passive voice — one must know or intend that one’s explosives “will be used” to harm people or damage property — -brings within its ambit two distinct classes of offenders: those who transport explosives themselves intending to harm people or damage property, and those who transport explosives with intent or knowledge that others will or might use them to harm people or damage property. We think that § 2K1.6 distinguishes between these two classes of § 844(d) violators and, not surprisingly, that it punishes the former more harshly than the latter. In our view, if “the defendant” himself intended to kill people, then under § 2K1.6(a)(2), he may be sentenced as if he had been convicted of attempted murder, for which the base offense level is 20, see Guidelines § 2A2.1. On the other hand, if a defen dant transports explosives knowing that they “will be used” by someone else to kill people, but does not himself specifically intend to kill people, he may be sentenced only under § 2K1.6(a)(1), which carries a base offense level of 18. Contrary to Kikumura’s argument, the “ ‘average’ § 844(d) violator” does not necessarily intend to" }, { "docid": "139876", "title": "", "text": "the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original); accord United States v. Marabelles, 724 F.2d 1374, 1377 (9th Cir.1984); United States v. Christopher, 700 F.2d 1253, 1261 (9th Cir.1983). Reversal is required only when “no rational trier of fact could find guilt beyond a reasonable doubt.” Jackson, 443 U.S. at 317, 99 S.Ct. at 2788; see also Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1941). b. Analysis The evidence was sufficient to support Michaels’ conviction under § 844(d) if any rational trier of fact could have found beyond a reasonable doubt that Michaels: (1) transported or received in interstate commerce (2) any explosive (3) with the knowledge or intent that it would be used to kill, injure, or intimidate any individual. See Carlson, 561 F.2d at 108. When a defendant places mail matter in an authorized mail depository, to be sent and delivered according to the directions thereon by the Postal Service of the United States, he has placed that mail matter in interstate commerce. See United States v. Martino, 648 F.2d 367, 381 (5th Cir.1981), cert. denied, 456 U.S. 943, 102 S.Ct. 2006, 72 L.Ed.2d 465 (1982). The testimony of Postal Inspectors Upton and Ray, as discussed above, and the presence of Michaels’ fingerprints on the fragments of the box, were sufficient, when viewed in the light most favorable to the prosecution, to allow a rational trier of fact to conclude that Michaels placed the package in the United States Mail. Therefore, the same evidence was sufficient to support a finding that Michaels placed the package in interstate commerce. Having found that Michaels mailed the package, a rational trier of fact could not avoid concluding that Michaels mailed an explosive device. Since the device was set to explode when the package was opened, a rational trier of fact could conclude that Michaels sent" }, { "docid": "139871", "title": "", "text": "statement. 18 U.S.C. § 3500(e). ” United States v. Griffin, 659 F.2d 932, 936 (9th Cir.1981). Michaels has made no attempt to show that the postal inspectors’ rough notes satisfy either of the two requirements that would qualify them as witness’s “statements” for purposes of the Jencks Act. Therefore, he has not shown that the district court abused its discretion in refusing to order production of the notes on that basis. B. Michaels’Conviction Under 18 U.S.C. § 844(d) 1. The “Knowledge or Intent” Requirement a. Standard of Review Issues of statutory interpretation are reviewed de novo. United States v. Mehrmanesh, 689 F.2d 822, 827 (9th Cir.1982); cf. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc) (questions of law reviewed de novo), cert. denied, — U.S. —, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). b. Analysis Section 844(d) provides, in pertinent part, that [w]hoever transports ... in interstate ... commerce any explosive with the knowledge or intent that it will be used to kill, injure, or intimidate any individual ... shall be imprisoned for not more than ten years, or fined not more than $10,000, or both____ Michaels contends that a conviction under this statute requires a showing of specific intent to transport in interstate commerce. He offers two theories in support of this position: (1) that the “knowledge or intent” requirement in § 844(d) relates not just to the device being used to kill or injure, but also to transporting the device in interstate commerce; and (2) that because Michaels was indicted and convicted under both §§ 844(d) and 2(b) (the basic agency provision making a person liable as a principal for willfully causing an innocent party to commit an illegal act), the government had to show that he specifically intended that Brown’s assistant transport the device in interstate commerce. Michaels’ first argument is unconvincing for two reasons. First, [i]t is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain ... the sole function of the courts" }, { "docid": "139874", "title": "", "text": "the intent requirement only to the use of the device to kill, injure, or intimidate, and not to the transportation element. We agree with that interpretation, and accordingly reject Michaels’ first argument. Michaels’ second argument is based on the fact that he was convicted under §§ 844(d) and 2(b), not § 844(d) alone. Section 2(b) states that “[w]hoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.” (emphasis added). The language of the indictment, says Mi chaels, demonstrates the way the two statutes were combined. Michaels was charged with “knowingly and with the intent to injure and kill another, causpng] the transportation in interstate commerce of an explosive device.” Thus, Michaels’ second argument is that: (1) he was not convicted of transporting the explosive device in interstate commerce himself; rather, he was convicted of “willfully causing” Ms. Martin, Brown’s secretary, to transport the device in interstate commerce; (2) therefore, the government had to prove that he specifically intended that Ms. Martin transport the device in interstate commerce; and (3) the evidence at trial was insufficient to support such a finding. While this is a clever argument, it is founded on the erroneous assumption that the specific inclusion of § 2(b) in the indictment somehow alters the nature of the offense with which Michaels is charged. In fact, the specific inclusion of § 2(b) is insignificant. Whether specified or not, § 2(b) is considered embodied in full in every federal indictment. United States v. Maselli, 534 F.2d 1197, 1200 (6th Cir.1976); United States v. Lester, 363 F.2d 68, 72 (6th Cir.1966), cert. denied, 385 U.S. 1002, $87 S.Ct. 705, 17 L.Ed.2d 542 (1967). Thus, Michaels’ indictment under §§ 844(d) and 2(b) is functionally identical to an indictment under § 844(d) alone. Accordingly, the intent requirement, as discussed above, relates only to the use of the device to kill, injure, or intimidate, and not to the transportation element. 2. Sufficiency of the Evidence a. Standard of Review Sufficient evidence existed if, “after viewing" }, { "docid": "22417136", "title": "", "text": "history category, as applicable.” Plainly, an offender-related departure under § 4A1.3 could not by itself support the sentence imposed in this case. Even if Kikumura s past conduct in the Netherlands and Lebanon indicates that his criminal history is as serious as the criminal histories of most defendants classified as category VI, the highest category employed in the guidelines, that conclusion alone would support a departure only into a range of between 57 and 71 months, see Guidelines Ch. 5, Pt. A, a far cry from the 360-month sentence actually imposed. Accordingly, we must determine whether any offense-related departures are permitted. On the date of Kikumura’s sentencing, § 2K1.6 read as follows: § 2K1.6 Shipping, Transporting, or Receiving Explosives with Felonious Intent or Knowledge; Using or Carrying Explosives in Certain Crimes (a) Base Offense Level (Apply the greater): (1) 18; or (2) If the defendant committed the offense with intent to commit another offense against a person or property, apply § 2X1.1 (Attempt or Conspiracy) in respect to such other offense. Application of § 2K1.6 was predicated upon Kikumura’s conviction under 18 U.S.C. § 844(d), which makes it unlawful to transport any explosive in interstate commerce “with the knowledge or intent that it will be used to kill, injure, or intimidate any individual or unlawfully to damage or destroy any building, vehicle, or other real or personal property.” Kikumura’s offense level of 18 was calculated by application of § 2K1.6(a)(1). Kikumura contends that “18 U.S.C. § 844(d) has intent to destroy property or to kill or injure people as a material element of the offense.” Appellant’s Br. at 17 (emphasis in original); see also id. at 20 (“[T]he statute presumes that the ‘average’ § 844(d) violator intends to unlawfully blow something up (including people)_”). Therefore, Kikumura reasons, the guideline to which that statute is referenced, § 2K1.6, necessarily takes into account his specific intent to kill people. Kikumura glosses over the import of the precise statutory language. The statute’s usage of the passive voice — one must know or intend that one’s explosives “will be used” to harm people or" }, { "docid": "6172808", "title": "", "text": "cumulative punishment. See United States v. Cespedes, 151 F.3d 1329, 1333 (11th Cir.1998) (stating that the sentence under section 924(c) must be served consecutively with the sentences imposed for defendant’s other offenses). Other circuits concur in this result and have imposed consecutive sentences for section 924(c) violations where the predicate offense involved the same prohibited firearm or destructive device. See United States v. Collins, 109 F.3d 1413, 1420 (9th Cir.1997) (holding that where the legislature specifically authorizes cumulative punishments under two statutes, the trial court may impose such punishment regardless of whether those two statutes proscribe the same conduct); United States v. Holdridge, 30 F.3d 134, 1994 WL 399526, *1 (6th Cir.1994) (unpublished table decision) (same); United States v. Swapp, 934 F.2d 326, 1990 WL 299279, *15-*16 (10th Cir.1990) (unpublished table decision) (holding that the imposition of consecutive sentences for section 924(c) violations are mandatory, and, therefore, the lower court committed reversible error by imposing concurrent sentences). Although it may seem an unintended consequence of the statutory scheme to enhance a penalty for using explosives based on a predicate crime involving those same explosives, the language is clear; thus, this court’s statutory interpretation inquiry is at an end. Consecutive sentences for convictions under sections 924(c) and 844(d) based on the same course of conduct involving the proscribed explosives do not violate the Double Jeopardy Clause. For the foregoing reasons, the convictions and sentences imposed by the district court on Counts Two, Three, and Five are AFFIRMED. Count Four is VACATED as it failed to state an offense. On receipt of our mandate, the district court shall DISMISS Count Four. SO ORDERED. . 18 U.S.C. § 844(d) provides: (d) Whoever transports or receives, or attempts to transport or receive, in interstate or foreign commerce any explosive with the knowledge or intent that it will be used to kill, injure, or intimidate any individual or unlawfully to damage or destroy any building, vehicle, or other real or personal property, shall be imprisoned for not more than ten years, or fined under this title, or both; and if personal injury results to any" }, { "docid": "3925708", "title": "", "text": "for which the defendant is convicted, a statute that includes capital punishment as a possible penalty (1) must “genuinely narrow the class of persons eligible for the death penalty and ... reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder,” Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235 (1983), and (2) must not “prevent the sentencer from considering and giving effect to evidence relevant to the defendant’s background or character or to the circumstances of the offense that mitigate against imposing the death penalty.” Penny v. Lynaugh, 492 U.S. 302, 318, 109 S.Ct. 2934, 2946-47, 106 L.Ed.2d 256 (1989). The Court noted in Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988), that the requisite narrowing could be accomplished in one of two ways: either “[t]he legislature may itself narrow the definition of capital offenses ... so that the jury finding of guilt responds to this concern,” or “the legislature may more broadly define capital offenses and provide for narrowing by jury findings of aggravating circumstances at the penalty phase.” Lowenfield, 484 U.S. at 246, 108 S.Ct. at 555. 2. Constitutionality of §§ 8H(d) and 1716(a) The statutory provisions under which the government seeks the death penalty for Cheely are as follows: § 844. Penalties (d) Whoever transports or receives, or attempts to transport or receive, in interstate commerce or foreign commerce any explosive with the knowledge or intent that it will be used to kill, injure, or intimidate any individual or unlawfully to damage or destroy any budding, vehicle, or other real or personal property, shall be imprisoned for not more than ten years, or fined not more than $10,000, or both; and if ... death results to any person, including any public safety officer performing duties as a direct or proximate result of conduct prohibited by this subsection, shall be subject to imprisonment for any term of years, or to the death penalty or to life imprisonment as provided in section 34 of this title. 18 U.S.C. §" }, { "docid": "10196579", "title": "", "text": "958, 99th Cong., 2d. Sess. 132 Cong.Rec.H. 8999. However, to so read the section would not only make it gramatically incorrect, it would make the entire section superfluous since it is clear under any circumstances that a pending Chapter 11 case could not be converted to Chapter 12 until such time as Chapter 12 actually came into effect. The problem of interpreting language such as that presented in Section 302(c) has previously been considered by the United States Supreme Court in the case of Central Trust Company v. Official Creditors’ Committee, 454 U.S. 354, 102 S.Ct. 695, 70 L.Ed.2d 542 (1982). In that case, the Supreme Court considered the transition provisions enacted at the time the Bankruptcy Code took effect on November 1, 1979. P.L. 95-598, § 403(a). In the Central Trust case the Debtor had filed a motion to dismiss his Chapter XI case, which had been filed in August 1979, so that it could be refiled after November 1, 1979, under the new Code. The United States Supreme Court considered the language provided for in the transition statute and denied the right to dismiss and refile. In doing so the Supreme Court quoted its prior decision in Caminetti v. United States, 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442 (1917) as follows: It is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain and if the law is within the constitutional authority of the lawmaking body which passed it, the sole function of the courts is to enforce it according to its terms. Central Trust Co. v. Official Creditors’ Committee, 454 U.S. at 359-60, 102 S.Ct. at 697-98. In this Court’s view, there is no need to go behind the clear language of the statute. There is no ambiguity in the statute. It is specific in providing that the amendment “shall not apply ” to cases filed prior to the Act’s effective date. Act, § 302(c)(1). There is only an ambiguity between the Act and the Conference Report." }, { "docid": "139870", "title": "", "text": "contends, “prove” that the package was never mailed. Because Michaels has not shown that the production of the postal inspectors’ rough interview notes would be likely to affect the outcome of the trial, we find that the district court did not abuse its discretion in finding that Michaels was not entitled to production of the rough notes under the standards enunciated in Brady. 2. Michaels’ Jencks Act Claim Michaels also claims that he was entitled to production of the rough notes under the Jencks Act, 18 U.S.C. § 3500. This claim is also without merit. The Jencks Act requires, after a government witness has testified at trial, that the government produce upon demand any available statement made by the witness which relates to the subject matter of such witness’s testimony at trial. The Act narrowly defines “statements” as: (1) writings made by the witness and “signed or otherwise approved or adopted” by him, or (2) accounts which are “a substantially verbatim recital” of the witness’s oral statements “recorded contemporaneously with the making of such oral statement. 18 U.S.C. § 3500(e). ” United States v. Griffin, 659 F.2d 932, 936 (9th Cir.1981). Michaels has made no attempt to show that the postal inspectors’ rough notes satisfy either of the two requirements that would qualify them as witness’s “statements” for purposes of the Jencks Act. Therefore, he has not shown that the district court abused its discretion in refusing to order production of the notes on that basis. B. Michaels’Conviction Under 18 U.S.C. § 844(d) 1. The “Knowledge or Intent” Requirement a. Standard of Review Issues of statutory interpretation are reviewed de novo. United States v. Mehrmanesh, 689 F.2d 822, 827 (9th Cir.1982); cf. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc) (questions of law reviewed de novo), cert. denied, — U.S. —, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). b. Analysis Section 844(d) provides, in pertinent part, that [w]hoever transports ... in interstate ... commerce any explosive with the knowledge or intent that it will be used to kill, injure, or intimidate any individual ... shall be" }, { "docid": "139873", "title": "", "text": "is to enforce it according to its terms. Central Trust Co. v. Official Creditor’s Committee, 454 U.S. 354, 359-60, 102 S.Ct. 695, 697-98, 70 L.Ed.2d 542 (1982) (quoting Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 194, 61 L.Ed.2d 442 (1917)). A plain language reading of § 844(d) suggests only that the person who “transports ... in interstate commerce” must do so “with the knowledge or intent that [the device] will be used to kill, injure, or intimidate.” The language itself does not suggest any requirement of a specific intent to transport in interstate commerce. Second, this plain language interpretation was followed in United States v. Carlson, 561 F.2d 105 (1st Cir.), cert. denied, 434 U.S. 973, 98 S.Ct. 529, 54 L.Ed.2d 464 (1977). The court stated that [t]he elements of [§ 844(d) ] are 1) transportation or receipt in interstate commerce of 2) any explosive 3) “with the knowledge or intent that it will be used to kill, injure, or intimidate any individual....” 561 F.2d at 108. Clearly the court related the intent requirement only to the use of the device to kill, injure, or intimidate, and not to the transportation element. We agree with that interpretation, and accordingly reject Michaels’ first argument. Michaels’ second argument is based on the fact that he was convicted under §§ 844(d) and 2(b), not § 844(d) alone. Section 2(b) states that “[w]hoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.” (emphasis added). The language of the indictment, says Mi chaels, demonstrates the way the two statutes were combined. Michaels was charged with “knowingly and with the intent to injure and kill another, causpng] the transportation in interstate commerce of an explosive device.” Thus, Michaels’ second argument is that: (1) he was not convicted of transporting the explosive device in interstate commerce himself; rather, he was convicted of “willfully causing” Ms. Martin, Brown’s secretary, to transport the device in interstate commerce; (2) therefore, the government had to prove that he" }, { "docid": "7984999", "title": "", "text": "be more tenable. Complete absence of any such evidence supporting Counts III and IV renders it as weak as that which was relied on to support Counts I and II. When the text of the statutes is carefully scrutinized the deficiency in the evidence becomes clear. Subsection (d) of § 844, supra, provides in part: Whoever transports or receives, or attempts to transport or receive, in interstate or foreign commerce any explosive with the knowledge or intent that it will be used to kill, injure, or intimidate any individual or unlawfully to damage or destroy any building, vehicle, or other real or personal property, * * * Subsection (d) thus calls for transporting or receiving or attempting to transport or receive in commerce any explosive with knowledge that it will be used to kill, injure, or intimidate any individual or unlawfully to damage or destroy any building, vehicle, or other real or personal property. The gist of the offense is therefore to receive or to attempt to transport or receive in commerce. The inapplicability of the statute to the facts of this case is shown, first, by the remoteness from the ultimate crime of the alleged attempt. All that you have here is the evidence quoted above that the stick of simulated dynamite was held by one of the defendants and seen by the other and an inquiry about whether or not it could be sold. This is a far cry from transporting or receiving or attempting to trans port or receive in commerce any explosive with knowledge that it will be used to kill or destroy. How can this showing, consisting as it does of mere abstract talk, serve to evidence the crime of attempt to transport or receive in interstate commerce an explosive with knowledge or intent that it will be used to kill, injure or intimidate an individual. Subsection (j) defines the term “explosive” in relationship to subsection (d) above. It declares that the term “explosive” means gunpowders, powders used for blasting, all forms of high explosives, blasting materials, fuzes (other than electric circuit breakers), detonators, and" }, { "docid": "3925709", "title": "", "text": "offenses and provide for narrowing by jury findings of aggravating circumstances at the penalty phase.” Lowenfield, 484 U.S. at 246, 108 S.Ct. at 555. 2. Constitutionality of §§ 8H(d) and 1716(a) The statutory provisions under which the government seeks the death penalty for Cheely are as follows: § 844. Penalties (d) Whoever transports or receives, or attempts to transport or receive, in interstate commerce or foreign commerce any explosive with the knowledge or intent that it will be used to kill, injure, or intimidate any individual or unlawfully to damage or destroy any budding, vehicle, or other real or personal property, shall be imprisoned for not more than ten years, or fined not more than $10,000, or both; and if ... death results to any person, including any public safety officer performing duties as a direct or proximate result of conduct prohibited by this subsection, shall be subject to imprisonment for any term of years, or to the death penalty or to life imprisonment as provided in section 34 of this title. 18 U.S.C. § 844(d) (1988). § 1716. Injurious articles as nonmaila-ble (a) [A]ll explosives, inflammable materials, infernal machines, and mechanical, chemical, or other devices or compositions which may ignite or explode, ... are non-mailable matter and shall not be conveyed in the mails.... Whoever knowingly deposits for mailing or delivery, or knowingly causes to be delivered by mail, ... anything declared non-mailable by this section, whether or not transmitted in accordance with the rules ... with intent to kill or injure another, or injure the mails or other property, shall be fined not more than $10,000 or imprisoned not more than twenty years, or both. Whoever is convicted of any crime prohibited by this section, which has resulted in the death of any person, shall be subject also to the death penalty or to imprisonment for life, if the jury shall in its discretion so direct.... 18 U.S.C. § 1716(a), undesignated paragraphs following (i) (1988). These provisions authorize the death penalty not only for persons who murder by means of mail bomb, but also for a much broader" }, { "docid": "23103306", "title": "", "text": "1988, after a bench trial on stipulated facts, Kikumura was convicted of numerous counts of interstate transportation of explosive devices and passport offenses, including a charge that he violated 18 U.S.C. § 844(d) which prohibits the transportation of any explosive in interstate commerce “with the knowledge or intent that it will be used to kill, injure, or intimidate any individual or unlawfully to damage or destroy any building, vehicle, or real or personal property.” At the bench trial, Kikumura stipulated that he transported the explosives with the knowledge and intent that they be used to damage or destroy property. However, he refused to stipulate to that part of the statutory language providing that he transported explosives with the knowledge and intent that they be used to “kill, injure, and intimidate one or more individuals.” At the time of the stipulation, the prosecution made it clear that the stipulation’s purpose was limited to the trial and would not prevent the government from seeking to prove intent to cause death, injury or intimidation at sentencing. When the court asked Kikumura directly if he understood that the stipulation limitation would not apply at sentencing, he stated that that was his understanding. When Kikumura appeared before the district court for sentencing on February 7, 1989, the government offered expert testimony as to the nature of the bombs found in Kikumura’s automobile at the time of his arrest. The expert opined that, if detonated, the devices found would have injured or killed people and could, in fact, have caused mass casualties. Kikumura did not object to the introduction of this testimony. He did, however, argue that the government should be required to prove the relevant facts at sentencing by clear and convincing evidence rather than by the mere preponderance standard which is usually required at a criminal sentencing. He also argued that a confidential informant’s affidavit, submitted by the government, should not be admitted because it contained hearsay. The trial court rejected both of these arguments but found that the government’s proof did, in fact, satisfy the clear and convincing evidence standard and that the" }, { "docid": "23103305", "title": "", "text": "OPINION OF THE COURT COWEN, Circuit Judge. The principal question presented by this appeal is whether the failure of the district court to grant defendant Yu Kikumura a continuance until the attorney of his choice could be present at his resentencing proceeding constituted a denial of his right to counsel in violation of the Sixth Amendment of the U.S. Constitution. In addition, Kikumura argues that the district court violated his due process rights by taking into consideration his intent to kill in the absence of a conviction for attempted murder when it resentenced him for his conviction under 18 U.S.C. § 844(d) (1988). He also argues that the district court should have required proof beyond a reasonable doubt of all material facts at the original sentencing and erred in failing to apply the Confrontation Clause standard of admissibility to an affidavit containing hearsay which was introduced at the sentencing proceeding. We find all of the defendant’s claims to be without merit and we will affirm. I. A. The Original District Court Proceedings On November 28, 1988, after a bench trial on stipulated facts, Kikumura was convicted of numerous counts of interstate transportation of explosive devices and passport offenses, including a charge that he violated 18 U.S.C. § 844(d) which prohibits the transportation of any explosive in interstate commerce “with the knowledge or intent that it will be used to kill, injure, or intimidate any individual or unlawfully to damage or destroy any building, vehicle, or real or personal property.” At the bench trial, Kikumura stipulated that he transported the explosives with the knowledge and intent that they be used to damage or destroy property. However, he refused to stipulate to that part of the statutory language providing that he transported explosives with the knowledge and intent that they be used to “kill, injure, and intimidate one or more individuals.” At the time of the stipulation, the prosecution made it clear that the stipulation’s purpose was limited to the trial and would not prevent the government from seeking to prove intent to cause death, injury or intimidation at sentencing. When the" }, { "docid": "14420186", "title": "", "text": "evidence at trial included proof that Tovex was not manufactured in Kentucky. However, defendant argues that in order to meet the interstate commerce element, case law requires that “there must be direct evidence that a defendant transported or received an explosive across state lines.” Brief of Defendant-Appellant at 30. To support this, defendant argues that the “interstate commerce” element modifies “whoever” rather than “explosives.” In McElroy v. United States, 455 U.S. 642, 102 S.Ct. 1332, 71 L.Ed.2d 522 (1982), the Supreme Court addressed the construction of “interstate commerce” in 18 U.S.C. § 2314. As is the case with section 844(d), section 2314 includes the “whoever ... transports in interstate or foreign commerce” prefatory language. The Court rejected the defendant’s “unarticulated assumption that ‘interstate commerce,’ as used in [section 2314] does not continue after the [item] has crossed the state border,” 455 U.S. at 648, 102 S.Ct. at 1336, and held that “the stream of interstate commerce may continue after a state border had been crossed.” 455 U.S. at 654, 102 S.Ct. at 1339. As noted, the statutory language at issue in section 844(d) is identical to that reviewed in McElroy. Thus, it is instructive that subsequent to the Court’s interpretation of “interstate commerce” in McElroy, Congress amended section 844(d) without in any way altering this language. Pub.L. No. 98-473, Title II, § 1014(1) and (2), 98 Stat. 2142 (1984). In summary, we disagree that the government must show that defendant personally transported explosives across state lines or received them during or after such an act of transportation in interstate commerce. Thus, we hold that the government’s burden as to the interstate commerce element of section 844(d) is met by showing, as here, that the movement of the explosive was a “continuation of the movement that began out of state.” McElroy, 455 U.S. at 654, 102 S.Ct. at 1339. G. Affecting Interstate Commerce Element of 18 U.S.C. § 844(1) Defendant’s next argument is that there was insufficient evidence to support his conviction of violating 18 U.S.C. § 844(i), which provides in relevant part: Whoever maliciously damages or destroys, or attempts to" }, { "docid": "14420198", "title": "", "text": "multiple punishments, imposition of such sentences does not violate the Constitution.” Albernaz v. United States, 450 U.S. 333, 344, 101 S.Ct. 1137, 1145, 67 L.Ed.2d 275 (1981). “[T]o determine whether Congress intended the same conduct to be punishable under two criminal provisions [the] appropriate inquiry ... is ‘whether each provision requires proof of a fact which the other does not.’ ” Ball v. United States, — U.S. -, 105 S.Ct. 1668, 1672, 84 L.Ed.2d 740 (1985) (quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932)). Thus, the only question which need be answered is whether subsections (d) and (i) require proof of a fact that the other does not. Subsection (d) addresses and requires proof of the transportation or receipt of explosives which have been transported in interstate commerce. On the other hand, subsection (i) addresses and requires proof of the destruction of property which is “used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce.” (Emphasis added). Conversely, in order to convict under subsection (d), the government need not prove that the property destroyed was used in interstate commerce. Similarly, a conviction under subsection (i) can be obtained regardless of whether the explosives were at any time transported in interstate commerce. Accordingly, we hold that the district court did not err in imposing consecutive sentences under subsections (d) and (i) of 18 U.S.C. § 844. III. In accordance with the foregoing, we AFFIRM defendant’s convictions under Counts 2, 3 and 4 of the indictment, but REVERSE defendant’s conviction under Count 5 of the indictment. In all other respects, the district court is AFFIRMED. APPENDIX COUNT 2 THE GRAND JURY FURTHER CHARGES: That on or about August 22, 1979, in the Eastern District of Kentucky, RONALD WILLET METZGER defendant herein, did transport and receive and did attempt to transport and receive in interstate commerce an explosive, with the knowledge and intent that it would be used to kill and/or injure Dorthea Jane (Harvey) Metzger, his wife, and Billy Harvey, his stepson, and to damage or destroy a" }, { "docid": "14420185", "title": "", "text": "left an impression of what the actual explosion may, at least, have looked like, such is not the case here. Moreover, even if on a de novo review this court were inclined to agree with defendant, reversal would be inappropriate because the case does not present a set of facts so egregious that deference to the district court is inappropriate. F. Interstate Commerce Element of 18 U.S.C. § 8U(d) Count 2 of the indictment included a charge that defendant violated 18 U.S.C. § 844(d), which provides in relevant part: Whoever transports or receives, or attempts to transport or receive, in interstate or foreign commerce any explosive with the knowledge or intent that it will be used to kill, injure, or intimidate any individual or unlawfully to damage or destroy any building, vehicle, or other real or personal property, shall be imprisoned ...; and if death results, shall be subject to imprisonment for any term of years, or to the death penalty or to life imprisonment as provided in section 34 of this title. The government’s evidence at trial included proof that Tovex was not manufactured in Kentucky. However, defendant argues that in order to meet the interstate commerce element, case law requires that “there must be direct evidence that a defendant transported or received an explosive across state lines.” Brief of Defendant-Appellant at 30. To support this, defendant argues that the “interstate commerce” element modifies “whoever” rather than “explosives.” In McElroy v. United States, 455 U.S. 642, 102 S.Ct. 1332, 71 L.Ed.2d 522 (1982), the Supreme Court addressed the construction of “interstate commerce” in 18 U.S.C. § 2314. As is the case with section 844(d), section 2314 includes the “whoever ... transports in interstate or foreign commerce” prefatory language. The Court rejected the defendant’s “unarticulated assumption that ‘interstate commerce,’ as used in [section 2314] does not continue after the [item] has crossed the state border,” 455 U.S. at 648, 102 S.Ct. at 1336, and held that “the stream of interstate commerce may continue after a state border had been crossed.” 455 U.S. at 654, 102 S.Ct. at 1339. As noted," }, { "docid": "139872", "title": "", "text": "imprisoned for not more than ten years, or fined not more than $10,000, or both____ Michaels contends that a conviction under this statute requires a showing of specific intent to transport in interstate commerce. He offers two theories in support of this position: (1) that the “knowledge or intent” requirement in § 844(d) relates not just to the device being used to kill or injure, but also to transporting the device in interstate commerce; and (2) that because Michaels was indicted and convicted under both §§ 844(d) and 2(b) (the basic agency provision making a person liable as a principal for willfully causing an innocent party to commit an illegal act), the government had to show that he specifically intended that Brown’s assistant transport the device in interstate commerce. Michaels’ first argument is unconvincing for two reasons. First, [i]t is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain ... the sole function of the courts is to enforce it according to its terms. Central Trust Co. v. Official Creditor’s Committee, 454 U.S. 354, 359-60, 102 S.Ct. 695, 697-98, 70 L.Ed.2d 542 (1982) (quoting Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 194, 61 L.Ed.2d 442 (1917)). A plain language reading of § 844(d) suggests only that the person who “transports ... in interstate commerce” must do so “with the knowledge or intent that [the device] will be used to kill, injure, or intimidate.” The language itself does not suggest any requirement of a specific intent to transport in interstate commerce. Second, this plain language interpretation was followed in United States v. Carlson, 561 F.2d 105 (1st Cir.), cert. denied, 434 U.S. 973, 98 S.Ct. 529, 54 L.Ed.2d 464 (1977). The court stated that [t]he elements of [§ 844(d) ] are 1) transportation or receipt in interstate commerce of 2) any explosive 3) “with the knowledge or intent that it will be used to kill, injure, or intimidate any individual....” 561 F.2d at 108. Clearly the court related" }, { "docid": "6172809", "title": "", "text": "based on a predicate crime involving those same explosives, the language is clear; thus, this court’s statutory interpretation inquiry is at an end. Consecutive sentences for convictions under sections 924(c) and 844(d) based on the same course of conduct involving the proscribed explosives do not violate the Double Jeopardy Clause. For the foregoing reasons, the convictions and sentences imposed by the district court on Counts Two, Three, and Five are AFFIRMED. Count Four is VACATED as it failed to state an offense. On receipt of our mandate, the district court shall DISMISS Count Four. SO ORDERED. . 18 U.S.C. § 844(d) provides: (d) Whoever transports or receives, or attempts to transport or receive, in interstate or foreign commerce any explosive with the knowledge or intent that it will be used to kill, injure, or intimidate any individual or unlawfully to damage or destroy any building, vehicle, or other real or personal property, shall be imprisoned for not more than ten years, or fined under this title, or both; and if personal injury results to any person, including any public safety officer performing duties as a direct or proximate result of conduct prohibited by this subsection, shall be imprisoned for not more than twenty years or fined under this title, or both; and if death results to any person, including any public safety officer performing duties as a direct or proximate result of conduct prohibited by this subsection, shall be subject to imprisonment for any term of years, or to the death penalty or to life imprisonment. . 18 U.S.C. § 924(c)(1) provides: (1)(A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who," } ]

[ { "docid": "21349899", "title": "", "text": "entitled ‘Modern Times’, which said motion picture was viewed by the court, and also as shown by plaintiff’s bill of particulars, indicate access to the book prior to and during the preparation and production of the motion picture, but that such matters indicating access to the said book are not a substantial copying within the decision of Harold Lloyd Corporation v. Witwer, 9 Cir., 65 F.2d page 1, of plot, incidents, characters, situations or any copyrighted features of the plaintiff’s said book. (Italics ours.) “The court further finds that the treatment of the philosophy, if any, underlying said book ‘Against Gray Walls or Lawyer’s Dramatic Escapes’ and the silent motion picture entitled ‘Modern Times’ is substantially different.” In Harold Lloyd Corporation v. Witwer, supra, plaintiff Witwer sought to enjoin the exhibition of the film, “The Freshman”, produced by the defendant Harold Lloyd Corporation, and to recover the proceeds derived from its exhibition, on the ground that the film infringed the copyrighted story written by said plaintiff, entitled “The Emancipation of Rodney\". Judgment for plaintiff was reversed on appeal. The basis for the holding of the court so referred to in the above-italicized finding is discussed in 65 F.2d at pages 18, 19, 27 and 28 (subdivisions 14, 15, 20 and 21 of the opinion). Such holding is in effect that a copyright for a story is not infringed by a photoplay unless an ordinary observer of the motion picture is led to believe that it is a picturization of the story. We are sure that the trial-court judge had such test of infringement in mind when the findings were made; his remarks from the bench at the time of the submission of the case confirm this view. They are as follows: “The decision of the court in the Witwer case has been stated. I am not going to take the time to read it again; it is clearly understandable. It is stated succinctly thus on page 18 of the main opinion: “ ‘The question really involved in such comparison’ * * * that is, the comparison between the literary property," } ]

[ { "docid": "9870811", "title": "", "text": "principals return — Sonora who had two husbands before Hardluck, who was killed 25 years before in a landslide in his mine, and two since, and her son, now a prominent citizen, and president of the Chamber of Commerce of Los Angeles. Tim, the counterman and numerous others, and the most important of all, Governor and Mrs. Clay Thurston, and the Earl of Maulder-nay and his wife, the Marchioness, the former Hazel Biggs, Harvey Girl. Time has dealt kindly with most of them, they reminisce and discuss the old days of the Harvey Girls. Thus ends the Adams story. As heretofore stated, some time early in 1943 Arthur Freid,. producer of musical photoplays, bought a copy of Adams’ novel while en route, to Los Angeles by train. It is said-that he became interested in the possibilities of producing a musical comedy comparable to “Oklahoma.” The Adams book was entirely too long and complicated in its literary construction to be reproduced either as a grade “A” western picture or as a musical comedy, and with the thought of adapting it to a musical moving picture, Roger Edens, assistant to Freid, was delegated the responsibility of adapting the story to a picture. According to the testimony of the defendant, it presented many complications and problems,' and it became necessary to re-'arrange the entire story to 'a considerable extent, both as to characters and as to plot. Many outstanding writers were employed in this task. There was cooperation between the writers, producers and the representatives of the Harvey System and the Santa Fe- Railroad, both in the adaptation of the story and the production of the picture. Unquestionably Harveys and the Santa Fe Railroad furnished such information and factual data as they had from whatever source it had been obtained in the adaptation of the story' and the production of the picture. However, with respect to the cooperation on behalf of the Harvey System, it was not until they had been convinced through the presentation of the songs to be used, that- they finally gave their consent to the production of the musical" }, { "docid": "4013180", "title": "", "text": "less secure, since his book is not a development of such a theme. In his own words, it is “a discourse and discussion of economic and social problems of the present day.” Plaintiff has not even shown how his abstract discussion amounts to a “theme” and any similarity is so abstract that the theme is common property and remains in the public domain with the result that no copyright protects it. Shipman v. R.K.O. Radio Pictures, 2 Cir., 100 F.2d 533. And since the statute can be infringed only by copying the copyrighted material, that is, engaging in literary piracy, Davies v. Bowes, D.C., 209 F. 53; Id., 2 Cir., 219 F. 178, and no copying or identity of expression is charged, it is difficult to understand how plaintiff can assert that the movie appropriated “material portions” of his book when he concedes that none of the scenes or dialogue were plagiarized from his book. Two tests have been used by the courts to determine whether infringement has occurred, namely, did defendant actually use the plaintiff's work, and if so, was there such similarity between the two works as to constitute an unfair use? Here the evidence showed no use whatever of plaintiff’s book by Dalton Trumbo or any agent of defendant and a comparison of the two works disproves access or copying. Moreover, the Master found that the title was attached to the story of the motion picture only after it was fully written. If we compare the two works, we find contrasts rather than similarities, and the resemblances, if any, between the subject matter of plaintiff’s book and the picture are not important. Plaintiff’s book has no plot, while the motion picture is built on a plot which supplies much of the merit of the play. Plaintiff’s book is written in essay form. The talking picture necessarily uses dialogue. Plaintiff’s book has no sequence of incidents. The talking picture progresses from incident to incident in spinning out the story. Plaintiff’s book deals with abstract economic ideas, whereas defendant’s picture presents a romantic love story. Plaintiff’s book has no" }, { "docid": "11481027", "title": "", "text": "ordinary reader and observer. And it is the test which the Ninth Circuit Court of Appeals adopted in Harold Lloyd Corporation v. Witwer, 9 Cir., 1933, 65 F.2d 1, 18 et seq., and which it followed later in Kustoff v. Chaplin, 9 Cir., 1941, 120 F.2d 551, 561. The reason for this is obvious. One does not infringe the secret, undisclosed thoughts of an author. One infringes the literary product in which his original thoughts have found expression. And, just as in the case of musical composition, similarity in accent, harmony or melody means “resemblance noticeable to the average hearer” (Hirsch v. Paramount Pictures Corp., D.C.Cal.1937, 17 F.Supp. 816, 818; and see, Carew v. R. K. O. Radio Pictures, Inc., D.C.Cal.1942, 43 F.Supp. 199, 200 et seq.; Darrell v. Joe Morris Music Co., 2 Cir., 1940, 113 F.2d 80), so in the case of a motion picture, there is no infringement “unless an ordinary observer is led to believe that the film is a picturization of the story.” Kustoff v. Chaplin, 9 Cir., 1941, 120 F.2d 551, 561. With these principles in mind, the problems involved here can be solved easily. As to access, the testimony of Taylor shows that he read “Serenade” when it was published some two years before he began work on the scenario of the picture. But he denies copying. He denies that, at the time he evolved the church sequence at the request of the director, he had any recollection of the church scene in “Serenade”. He states that the sequence of incidents came to him from his own recollection of regular church attendance and service as an altar boy in a Catholic church in his youth. The producer of the picture, John M. Stahl, testified, without contradiction, that the church scenes were suggested by him to another writer, George O’Neil, who worked on the script before Taylor and that Taylor began work with O’Neil’s material. Taylor had nothing to do with the direction of the motion picture. These facts are important because plagiarism, if it exists at all, must be found in the finished" }, { "docid": "10481775", "title": "", "text": "court to determine the credibility of witnesses who testified to the submission of the copyrighted play to the appellant’s story editor’s office and to retention of the play by appellant’s agent prior to the making of the accused motion picture; and, likewise, we must consider the trial judge’s better position to weigh the effect of evidence of a performance of appellee’s play upon one Underwood, who, as representative of the appellant corporation, witnessed the play’s one presentation. The findings of the District Judge, notwithstanding the absence of direct evidence of copying are, we think, tantamount to a determination by the court below of access by the appellant to the copyrighted matter before production of “Hotel for Women” commenced. This, with the palpable and significant similarities between the play and the motion picture amply justify the conclusion of infringement. In copyright infringement cases involving original dramatic compositions and motion picture productions, inasmuch as literal or complete appropriation of the protected property rarely occurs, the problem before the court is concrete and specific in each case to determine from all the facts and circumstances in evidence whether there has been a substantial taking from an original and copyrighted property, and therefore an unfair use of the protected work. Complete absence of discernible similarities or identities between the copyrighted literary work and the asserted infringing photoplay is not essential to overcome the charge of actionable copying, but it is also well established that proscribed copying cannot be evaded by immaterial variations in the cinema of text or treatment. The two works involved in this appeal should be considered and tested, not hypercritically or with meticulous scrutiny, but by the observations and impressions of the average reasonable reader and spectator. Applying such principles of admeasurement, and having had the opportunity to read appellee’s play “Women’s Hotel” and, in the presence of counsel for the respective parties to this appeal, having witnessed an exhibition of appellant’s motion picture “Hotel for Women,” we find and conclude, as did the court below, that the numerous striking similarities in the two works can not in the light of" }, { "docid": "23599213", "title": "", "text": "and appropriated substantial portions of the Witwer story including structure, plot, gags, sequences, etc. It was alleged that similarities between the motion picture and plaintiff’s literary work run throughout the story and especially in a particular comedy routine. The circuit court in reversing the lower court’s judgment held that there was no infringement on the g'round that there was not any deception to the public, that borrowing commonplace materials and using them differently does not constitute infringement, and further any subordinate sequence which is not an integral part of the story, as here, is not protected. None of these conclusions derogate from our conclusions in the instant case, for the court found a marked similarity between the sequences in “Movie Crazy” and “So’s Your Uncle”, such a similarity held to be lacking in the Witwer case; and the sequence before us played such an important and integral part of the story that the two cases are clearly distinguishable. In the cited case the judge found that there had been no duplication of scenes, and if there was even an approximate duplication, it was only of a subordinate portion and “utterly commonplace and incapable of copyright monopoly” so that copying would in such instance have no relevance. A mere reading of the cited case by one at all familiar with the instant one will reveal other vital distinguishable facts. The appellants cite Seltzer v. Sunbrock, D.C., 22 F.Supp. 621, 628, 629, contending that the sequence fails to satisfy the requisite of a “story”, in which the judge states: “The courts, in determining what constitutes a dramatic composition, have emphatically stated that there must be a story —a thread of consecutively related events —either narrated or presented by dialogue or action or both.” The sequence, as already illustrated, fulfills this requirement, as found by the trial judge. Appellant, Bruckman, in seeking to escape liability, urges that he is not liable as an infringer in that “he had nothing to do with the production, release, or exhibition of the alleged infringing photoplay.” The trial judge found that Bruckman contributed material to “So’s Your" }, { "docid": "22339918", "title": "", "text": "and the setting for the subject. Since it is an extrinsic test, analytic dissection and expert testimony are appropriate. Moreover, this question may often be decided as a matter of law. The determination of when there is substantial similarity between the forms of expression is necessarily more subtle and complex. As Judge Hand candidly observed, “Obviously, no principle can be stated as to when an imitator has gone beyond copying the ‘idea,’ and has borrowed its ‘expression.’ Decisions must therefore inevitably be ad hoc.” Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2 Cir. 1960). If there is substantial similarity in ideas, then the trier of fact must decide whether there is substantial similarity in the expressions of the ideas so as to constitute infringement. The test to be applied in determining whether there is substantial similarity in expressions shall be labeled an intrinsic one — depending on the response of the ordinary reasonable person. See International Luggage Registry v. Avery Products Corp., supra, 541 F.2d at 831; Harold Lloyd Corp. v. Witwer, 65 F.2d 1, 18-19 (9 Cir. 1933). See generally Nimmer § 143.5. It is intrinsic because it does not depend on the type of external criteria and analysis which marks the extrinsic test. As this court stated in Twentieth Century-Fox Film Corp. v. Stonesifer, 140 F.2d 579, 582 (9 Cir. 1944): “The two works involved in this appeal should be considered and tested, not hypercritically or with meticulous scrutiny, but by the observations and impressions of the average reasonable reader and spectator.” Because this is an intrinsic test, analytic dissection and expert testimony are not appropriate. This same type of bifurcated test was announced in Arnstein v. Porter, 154 F.2d 464, 468-69 (2 Cir. 1946), cert. denied, 330 U.S. 851, 67 S.Ct. 1096, 91 L.Ed. 1294 (1947). The court there identified two separate elements essential to a plaintiff’s suit for infringement: copying and unlawful appropriation. Under the Arnstein doctrine, the distinction is significant because of the different tests involved. “[T]he trier of fact must determine whether the similarities are sufficient to prove copying." }, { "docid": "9870833", "title": "", "text": "there is no question but that all of the information that plaintiff had in the writing of his stories was available to the writers in the adaptation of their stories. I have little doubt that representatives of the Harveys, and the Santa Fe Railroad Company gave them the very same information which they had given to the plaintiff when he wrote his stories, and that they probably utilized some of his thoughts in adapting the story. .1 do not understand that the, use of the ideas of others in writing stories, or in producing pictures, renders such person liable for infringement. Most stories are based upon knowledge of facts about people, places and things, and knowledge is acquired largely by learning what others have learned. , There are few geniuses out of whose very souls and minds come original works. If use of the thoughts of others was denied to the literary and musical world, there would be few writings and little music in this modern age. I think the defendant had access to the writings of the plaintiff. Such writings had been submitted to the defendant; they were at least in the possession of the Har-veys and of the Santa Fe Railroad who collaborated in adapting the story and in the production of the picture. I think it cannot be denied therefore, that the' defendant had access to them. It is my understanding of the law that: “In order to prove infringement there must have been copying of a substantial portion of the copyrighted work. Such copying is essential to recovery in an action for infringement of a copyright.” Kustoff v. Chaplin, 9 Cir., 120 F.2d 551, 560. “Of course, with a common source, two dramatizations must have much in common.” Klein v. Beach, D.C., 232 F. 240-47; Id., 2 Cir., 239 F. 108. Much that has been written about the Harvey Girls is pure fiction, but much of it also is founded in fact. In the stories before us here, much has been made of the incidents relative to requiring the wearing of coats in the Harvey Dining" }, { "docid": "23138189", "title": "", "text": "threaten to continue to do so. The brief of the appellee contains parallels or similarities of language in the story “The Emancipation of Rodney” and in the novel “The Freshman,” and states that, because there is no writing descriptive of the picture, the parallels are used and should be considered on the infringement issue. Although the novel has been read, I think that these parallels cannot be properly used as a basis of comparison between the story1 and the picture, for two reasons: First, because the novel was stated by the trial court, in the opinion, to not infringe the story, and there is nothing in the findings or in the interlocutory decree determining it to be an infringement of the story; and, second, because, by the findings and decree, it is a silent motion picture that is found to be the infringing entity, and the elements in such picture that are found to be copied are its fundamental theme or story structure, characterizations, and sequence of incidents. There are no findings that the words or verbal arrangement of the titles of the silent picture are copied from the story, and it is clear that they are not. Under these circumstances, the verbal parallels between the story and the novel are no criteria of infringement and cannot be considered. The picture was exhibited to this court in the presence of counsel for the respective parties on the day that these appeals were argued, and it is from such observation of the picture that comparison with the story is made. The photoplay consists of several reels and contains thousands of feet of film. It is necessary to see the motion picture in order to observe and fully appreciate the similarities and resemblances between it and the Wit-wer story. I have, however, prepared a description of both story and picture so that I may be able in some degree at least to point out in this opinion the features that I have found to be common to both. The Story. “The Emancipation of Rodney” is a “scorn to honor” short story. It" }, { "docid": "9870830", "title": "", "text": "one of the Harvey managers, and how he agreed to take the management of a certain place if he might have women waitresses instead of Negro men, who had been used in the far West in many of the Harvey Eating Houses. She says: \"Those waitresses were the first respectable women the cowboys and miners had ever seen — that is, outside of their own wives and mothers. Those roughnecks learned manners.” This. story likewise was written and published before the stories of the plaintiff were written. In making this statement, I do not mean to imply that the plaintiff in the writing of his stories used the information in these publications, although he would have had a perfect legal right to do so. These stories clearly indicate that the Harvey Girls had been used as a source of material for writers for a long period of time before plaintiff chose them as a subject for his own writing, and that fact would very materially narrow the question of plagiarism or infringement of his copyright. In his brief, plaintiff seeks to compare the character in his stories, particularly “Old John Santa Fe” with those in the moving picture production. He apparently contends that a description of the dances held by the Harvey Girls is indicative of the copying of his stories. He compares the description of the location as comparable to his own. In this connection, in practically all stories descriptive of the old West, we find the same type of town, same type of characters; in almost every moving picture of the old West we see that the building^ depicted may well have been used in every other picture of like type. This was necessarily so, because they were all practically the same. Plaintiff contends that there is a very close similarity between Dave the boomer, and Trent the dance hall owner and gambler. I think it is fair to say that there is a similarity between the types of characters of Mary Evans, the heroine in plaintiff’s “Old John Santa Fe” and Susan Bradley in the moving picture," }, { "docid": "10481776", "title": "", "text": "determine from all the facts and circumstances in evidence whether there has been a substantial taking from an original and copyrighted property, and therefore an unfair use of the protected work. Complete absence of discernible similarities or identities between the copyrighted literary work and the asserted infringing photoplay is not essential to overcome the charge of actionable copying, but it is also well established that proscribed copying cannot be evaded by immaterial variations in the cinema of text or treatment. The two works involved in this appeal should be considered and tested, not hypercritically or with meticulous scrutiny, but by the observations and impressions of the average reasonable reader and spectator. Applying such principles of admeasurement, and having had the opportunity to read appellee’s play “Women’s Hotel” and, in the presence of counsel for the respective parties to this appeal, having witnessed an exhibition of appellant’s motion picture “Hotel for Women,” we find and conclude, as did the court below, that the numerous striking similarities in the two works can not in the light of all the evidence be said to constitute mere chance. The deduction of material and substantial unlawful copying of appellee’s original play in appellant’s motion picture is more in consonance with the record and with the probabilities of the situation therein disclosed. In both appellee’s dramatic composition and in appellant’s motion picture the principal characters, Margaret and Marcia, are unsophisticated young ladies who go to New York City and register at a hotel for women. Margaret came from a small town in Illinois; Marcia came from Syracuse, New York. Each becomes involved with older men who attempt to take advantage of their inexperience. In both the climax is reached in the respective apartments of these men when a jealous woman, who had a short time previously called by telephone and was deceived, enters the apartment and fires a pistol. Each work under consideration has a singularity of locale, setting, action and dialogue. Appellee’s play consists of three acts and four scenes. Act I takes place in the lobby of the Hotel for Women. Act II is" }, { "docid": "9870758", "title": "", "text": "DUNCAN, District Judge. This is an action between plaintiff, a resident of the State of Kansas, and Loew’s, Incorporated, a Maryland corporation, licensed to do business in the State of Missouri, in which the plaintiff seeks to recover damages from the defendant in the amount of approximately $2,000,000 for alleged violation of his copyright interest in and to a literary composition entitled “Cupid Rides the Rails” and by infringement of his common-law literary rights in and to a literary composition and play in manuscript form entitled “Old John Santa Fe” which it is alleged 'is a dramatization of the original literary composition. entitled “Cupid Rides the Rails.” The petition is in three counts. The first count claims damages for infringing his rights in and to the literary composition “Cupid Rides the Rails” in the sum of $500,000; the second count as to “Old John Santa Fe” in the sum of $300,000 actual damages, and in the sum of $200,000 punitive damages, alleging that the violation was wilful and malicious; and the third count seeks damages in the sum of $100 for the first infringing performance, and $50 for each subsequent infringing performance, amounting to $1,000,000. It is alleged that the infringement resulted from the dramatization of the screen play “The Harvey Girls” which was produced and released by the defendant in 1945. Defendant denies that any part of plaintiff’s composition was copied, pirated, appropriated, embodied in or incorporated as part of the novelization of the picture “The Harvey Girls,” and that the dramatization of said picture was an original literary work from the material owned by the defendant. There is an enormous mass of material before the court which has been reviewed, much of it carefully studied for the purpose of attempting to arrive at a clear understanding of the factual situation raised by the evidence and the claims of the plaintiff. It is estimated that 500,000 words are in evidence in the form of testimony, depositions, manuscripts, novels, etc. At the time of'the trial of the case, plaintiff was employed by the Missouri-Kansas-Texas Railroad Company as a conductor. He" }, { "docid": "11481026", "title": "", "text": "K. O. Radio Pictures, Inc., 2 Cir., 100 F.2d 533, 537. The rules by which it is determined, once access is shown, whether similarity exists which amounts to infringement are always the same. We still must find similarity of distinctive locale, character and incidents. .In assaying the two works to determine the existence of similarities, we are warned constantly by courts to avoid the analyses of experts who, by reducing incidents to abstractions, can find the similar in the wholly dissimilar. Judge Learned Hand in Nichols v. Universal Pictures Corp., 2 Cir., 1930, 45 F.2d 119, 122, 123, states: “This is not the proper approach to a solution; it must be more ingenuous, more like that of a spectator, who would rely upon the complex of his impressions of each character.” This is the test which makes similarity dependent not upon the minute, scalpel-like dissection of an expert, who transmutes each, incident into an abstraction or sublimation in order to find identity, but upon the impression of sameness which the two works carry to the ordinary reader and observer. And it is the test which the Ninth Circuit Court of Appeals adopted in Harold Lloyd Corporation v. Witwer, 9 Cir., 1933, 65 F.2d 1, 18 et seq., and which it followed later in Kustoff v. Chaplin, 9 Cir., 1941, 120 F.2d 551, 561. The reason for this is obvious. One does not infringe the secret, undisclosed thoughts of an author. One infringes the literary product in which his original thoughts have found expression. And, just as in the case of musical composition, similarity in accent, harmony or melody means “resemblance noticeable to the average hearer” (Hirsch v. Paramount Pictures Corp., D.C.Cal.1937, 17 F.Supp. 816, 818; and see, Carew v. R. K. O. Radio Pictures, Inc., D.C.Cal.1942, 43 F.Supp. 199, 200 et seq.; Darrell v. Joe Morris Music Co., 2 Cir., 1940, 113 F.2d 80), so in the case of a motion picture, there is no infringement “unless an ordinary observer is led to believe that the film is a picturization of the story.” Kustoff v. Chaplin, 9 Cir., 1941, 120" }, { "docid": "23138124", "title": "", "text": "is excellent, but is to me illustrative of the classic difficulty of not being able to see the forest for the trees. Infringement of a work of imagination is determined by the result of comparative reading on the imagination of the reader, not by a dissection of sentences and incidents, suitable for the study of a digest or textbook, but inherently unnatural for any man who has the kind of brains that make him able to adapt a work of fiction.” (Italics ours.) We have only to consider the dramatization of the book .“Ben Hur,” discussed in Harper & Bros. v. Kalem Co. (C. C. A.) 169 F. 61, affirmed 222 U. S. 55, 32 S. Ct. 20, 56 L. Ed. 92, Ann. Cas. 1913A, 1285, to under-. stand that any spectator who had read the story “Ben Hur” would at once recognize the dramatization thereof as a deliberable attempt to reproduce the book in the form of a moving picture. There would be no question about it on the part of the spectator. With this rule in mind we take up a more detailed consideration of the points of similarity between the play and the story tending to show copying, and some of the dissimilarities tending to show an original production of the play as advanced by the respective parties. Appellee adopts the finding of the trial court as to infringement as her statement of the similarity of the story and play. We quote from her brief as follows: “The trial Court has found as a fact that ‘substantial parts and portions of the Witwer story have been used, copied and appropriated by appellants including story structure, plot, gags, sequences of incident, event and situation, including the following plot and sequence of incident,’ to-wit: “‘A country boy of non-athletie type 'is ambitious to be a popular athletic college hero; he practices yells before a mirror in the privacy of his room; he is photographed wearing an unearned college letter inscribed upon his clothing, admires this photograph in secret; he meets a girl to whom he tells exaggerated stories of" }, { "docid": "23599204", "title": "", "text": "there are separate classifications for dramatic compositions and motion pictures, and it does not carry over into Section 1. As stated in Tiffany Productions v. Dewing, D.C., 50 F.2d 911, 914, “* * * there would seem to be no escape from the conclusion that the plaintiffs are nevertheless entitled to invoke the protection of section 1(d) on the ground that a ‘motion-picture photo-play’ is a ‘dramatic work’. * * * To the contention that, since section 5 has separate classifications for dramatic or dramatico-musical compositions and for motion picture photoplays, therefore section 1(d) is not to be interpreted as embracing the latter, it is sufficient to point out that the classification of section 5 is merely for the convenience of the copyright office and of applicants for copyrights. Such interpretation is strengthened by the last paragraph of section.5.” The next contention is that the alleged infringement did not constitute an appropriation of a material and' substantial portion of the copyrighted picture. The sequence in question consisted of 57 consecutive comedy scenes or 20% of the entire feature. According to the findings and the evidence, the whole sequence is intimately tied into the story, and is a main source of comedy for the picture as a whole. It plays an integral and essential part in carrying along the role of the star in the story. Further, the star-hero had been rejected by the heroine and the culmination of the magician coat episode was the motive and beginning of the reconciliation of the two, a necessity to the continuation and completion of the story. The trial court found that the sequence had been “copied and misappropriated” by the appellants, that the characters, characterization, motivation, treatment, action and sequence of action were the same and had been deliberately and wilfully copied in their picture “So’s Your Uncle”. The evidence fully supports this view. In 18 C.J.S. Copyright and Literary Property § 34, p. 176, the commentator concisely summarizes the, applicable principles: “ * * * a dramatic or dramatico-musical composition must possess some element: of originality in order to be copyrightable. Ordinary" }, { "docid": "10481774", "title": "", "text": "subject of notoriety and is no longer wanted by the modeling agency. She and Jeff are reunited and leave the hotel in each other’s arms. The Copyright Act *provides that “Any person entitled thereto, upon complying with the provisions of this title, shall have the exclusive right (a) to print, reprint, publish, copy, and vend the copyrighted work.” It is obvious from the foregoing statements of the play and the motion picture that there are similarities between the two works, but as there can be no infringement of copyright without some copying, the mere fact of similarity between two works does not of itself make one an infringement of the other. Appellant’s principal attack in this appeal is upon the findings of the court below which epitomized are that unlawful copying and appropriation of material and substantial portions of appellee’s copyrighted play “Women’s Hotel” has been established as against Twentieth Century-Fox Film Corporation. We must of course take into consideration the fact that the trial judge was in a more advantageous position than is this court to determine the credibility of witnesses who testified to the submission of the copyrighted play to the appellant’s story editor’s office and to retention of the play by appellant’s agent prior to the making of the accused motion picture; and, likewise, we must consider the trial judge’s better position to weigh the effect of evidence of a performance of appellee’s play upon one Underwood, who, as representative of the appellant corporation, witnessed the play’s one presentation. The findings of the District Judge, notwithstanding the absence of direct evidence of copying are, we think, tantamount to a determination by the court below of access by the appellant to the copyrighted matter before production of “Hotel for Women” commenced. This, with the palpable and significant similarities between the play and the motion picture amply justify the conclusion of infringement. In copyright infringement cases involving original dramatic compositions and motion picture productions, inasmuch as literal or complete appropriation of the protected property rarely occurs, the problem before the court is concrete and specific in each case to" }, { "docid": "12291248", "title": "", "text": "faire,” sequence of events which necessarily flow from a common theme. Copyrights do not protect thematic concepts or scenes a faire. A determination of whether substantial similarity exists between two copyrighted works depends upon a side by side comparison of the copyrighted material. Knickerbocker Toy Co., Inc. v. Genie Toys, Inc., 491 F.Supp. 526 (E.D.Mo.1980). The two works “should be considered and tested, not hypercritically or with meticulous scrutiny, but by the observations and impressions of the average reasonable reader and spectator.” Twentieth Century-Fox Film Corp. v. Stonesifer, 140 F.2d 579, 582 (9th Cir.1944). Analytical dissection of the two works is improper to determine if the expression of idea has been copyrighted. Dissection of clothing, colors, features and mannerisms following the removal of the characters from their settings is inappropriate. A side by side comparison of the works to determine substantial similarity is not dependent upon a minute, meticulous, analytical dissection but a determination as to whether or not a substantial similarity would be recognized by the ordinary observer. Sid and Marty Krofft Television v. McDonald’s Corporation, 562 F.2d 1157 (9th Cir.1977). Initially, this Court notes that the plaintiff has presented a complaint which barely, if at all, is sufficient under Rule 8 of the Fed.R.Civ.P. which requires a pleading to set forth a short and plain statement of the claim showing that the pleader is entitled to relief. “To be sufficient under Rule 8 a claim of infringement must state, inter alia, which specific original work is the subject of the copyright claim.” Gee v. CBS, Inc., 471 F.Supp. 600 (E.D.Pa.1979). The copyrighted work that the plaintiff claims has been infringed and which has been presented and authenticated by the copyright office of the United States, is different from the claim made in plaintiff’s reply to Hallmark Cards’ motion for summary judgment. In that response, the plaintiff claims that she has copyrighted a merchandising property which involves a unique color concept, namely, that things can be painted multi-colors with a rainbow. The copyrighted material presented to this Court does not present this concept, but only includes drawings of characters" }, { "docid": "9870824", "title": "", "text": "the train and pushes Susan off. It is then discovered that Trent is following the train in an attempt to overtake it in order that he may be united with Susan. They are married. Thus ends the picture. Throughout the book and throughout the production, the Harvey Girls’ dances and entertainments are outstanding features, tragic as well as many amusing incidents occur at those entertainments and dances. There is little similarity between the story written by the plaintiff and the story of “The Harvey Girls” as written by Samuel Hopkins Adams, except that the locale is a desert town along the Santa Fe Railroad, the principal characters are the Harvey girls, and the other characters, that ordinarily go to make up a romantic story of the old West. Admittedly the moving picture does not too closely parallel the Adams story from which it is supposed to have been taken. Plaintiff does not charge the Adams book with copying his own story or of violating any of his copyrights. The charge is directed against the moving picture. There are parallels, between plaintiff’s story “Old John Santa Fe” and some scenes in the moving picture production. I think it is reasonable to assume that any story of the Harvey girls> or of the Harvey system, or of the Santa Fe Railroad would necessarily have many parallels and many similar characters. The first is the approaching train across the desert and the arrival of the Harvey Girls at Saridrock. In the writing of the. Adams story it is admitted that he was supplied with such information as the Harveys and the Santa Fe had in their files, and unquestionably they had all of the information upon which .the Funkhouser stories were based. As heretofore stated, . they , cooperated with him up to a certain point, obtaining much tactual information. Certainly the stories of “The Harvey Girls” have so long been in the public domain that no one can claim they have exclusive privilege in writing about them; they have long been the subject of many stories of fact and fiction. The principal" }, { "docid": "12742456", "title": "", "text": "left to inference. * * * “We hold that films which are founded upon copyrighted dramas or other dramatic compositions are protected under the provisions of section 1(d) of the Copyright Act [17 USCA § 1(d)] and their unlicensed exhibition is an infringement of the copyrighted dramatic composition. “We are not called upon to decide whether the unlicensed exhibition of a motion picture other than a photoplay would constitute an infringement of the copyrighted film of such a picture. * * * . , “The decree of the District Court [50 F.(2d) 908 (dismissing the bill)] in each ease is set aside, and the cases are remanded with direction to allow, either plaintiff to amend .its bill. If, however, the plaintiff in either case does not elect to amend, the decree of the District Court in such ease is affirmed with costs in this court. * * * ” The defendant argues that the Circuit Court of Appeals has indicated that, unless a “motion picture photoplay film” is founded on copyrighted novels, dramas, scenarios, or other dramatic compositions, or upon copyrighted dramatic productions of which the plaintiff is the sole proprietor, the plaintiff fails to show any infringement of its copyright. This is not the decision of the Circuit Court of Appeals, nor am I satisfied that by way of dictum the Circuit Court of Appeals has indicated that such would be its decision. ■ In Tiffany Productions, Inc., v. Dewing et al. (D. C.) 50 F.(2d) 911, it was decided that a moving picture photoplay is a “ ‘dramatic work’ within Copyright Law (17 US CA §§ 1(d), 5],” and Judge Coleman said: “However, assuming without deciding that the exhibition here complained of was neither a ‘publication’ nor a ‘copy’ within the meaning of section 1(a) of the act, there would seem to be no escape from the conclusion that the plaintiffs are, nevertheless, entitled to invoke the protection of section 1(d), on the ground that a ‘motion picture photo-play’ is a ‘dramatic work.’ ” In the Tiffany Productions case, so far as appears, the motion picture photoplay was" }, { "docid": "9870831", "title": "", "text": "In his brief, plaintiff seeks to compare the character in his stories, particularly “Old John Santa Fe” with those in the moving picture production. He apparently contends that a description of the dances held by the Harvey Girls is indicative of the copying of his stories. He compares the description of the location as comparable to his own. In this connection, in practically all stories descriptive of the old West, we find the same type of town, same type of characters; in almost every moving picture of the old West we see that the building^ depicted may well have been used in every other picture of like type. This was necessarily so, because they were all practically the same. Plaintiff contends that there is a very close similarity between Dave the boomer, and Trent the dance hall owner and gambler. I think it is fair to say that there is a similarity between the types of characters of Mary Evans, the heroine in plaintiff’s “Old John Santa Fe” and Susan Bradley in the moving picture, although the part they take in the story and in the moving picture is entirely different, except that each of them is the heroine, and plays opposite the hero. He seeks to compare “Em”, the “Boss lady” of the Alhambra girls, and “Blondy”, one of his principal characters as a Harvey Girl; he says “Em” and “Sonora” are comparable characters, and to some extent, they are; he seeks to compare “Hard-nose Harrigan”, the division superintendent, with, the manager of the Harvey House, and to compare “Heavy”, the boomer in the Funkhouser story, with “Hartsey” in the moving picture. About the only similarity of these two persons that I can see is in their physical makeup. I am unable to agree with plaintiff in his comparison of the characters, except in a remote way. I think there can be no reasonable doubt but that in the adaptation of the story the writers used all of the information available with respect to the Harvey System, the Harvey Girls and other matters pertaining to their subject. I think" }, { "docid": "9870834", "title": "", "text": "writings of the plaintiff. Such writings had been submitted to the defendant; they were at least in the possession of the Har-veys and of the Santa Fe Railroad who collaborated in adapting the story and in the production of the picture. I think it cannot be denied therefore, that the' defendant had access to them. It is my understanding of the law that: “In order to prove infringement there must have been copying of a substantial portion of the copyrighted work. Such copying is essential to recovery in an action for infringement of a copyright.” Kustoff v. Chaplin, 9 Cir., 120 F.2d 551, 560. “Of course, with a common source, two dramatizations must have much in common.” Klein v. Beach, D.C., 232 F. 240-47; Id., 2 Cir., 239 F. 108. Much that has been written about the Harvey Girls is pure fiction, but much of it also is founded in fact. In the stories before us here, much has been made of the incidents relative to requiring the wearing of coats in the Harvey Dining Room and how the manager in the Funkhouser stories refused to admit two boomers without coats, and how the coats were supplied for the occasion by Harvey. An incident is depicted in the production with cowboys as the characters. There is no question but that there was such a rule invoked in all of the Harvey Blouses. In fact, there is a court decision upholding the validity of the rule. In view of the many stories about the Harvey Girls, of necessity there is much, in common. As was said in Caruthers v-R. K. O. Radio Pictures, Inc., D.C., 20 F„ Supp. 906, 907: “The incidents mentioned in ‘The Sooners’ and shown in ‘Cimmaron’ are certainly, with one exception, familiar to all readers of stories of the western frontier and the rough life led thereon by its early settlers.” The Harvey System, the Harvey Girls, the. method of operating, how they were selected, the type of persons they were, the relationship between the Blarvey System and the Santa Fe Railroad System are all matters of" } ]

[ { "docid": "22922895", "title": "", "text": "been resolved without the other inmate witnesses. If appellant had proceeded, he might have been successful. If appellant had proceeded and lost, the appellate court would have had a complete record upon which to make its determination. For these reasons we affirm the dismissal for lack of prosecution and do not reach the substantive issue involving the denial of the writ of habeas corpus ad testificandum. To adjudicate the issue of the writ under the circumstances of this case would undermine the “basic and persisting policy against piecemeal appeals.” Cf. Borden Co. v. Sylk, 3 Cir. 1969, 410 F.2d 843; Kelly v. Greer, 3 Cir. 1961, 295 F.2d 18; Panichella v. Pennsylvania Railroad Co., 3 Cir. 1958, 252 F.2d 452, 454. If a litigant could refuse to proceed whenever a trial judge ruled against him, wait for the court to enter a dismissal for failure to prosecute, and then obtain review, of the judge’s interlocutory decision, the policy against piecemeal litigation and review would be severely weakened. This procedural technique would in effect provide a means to avoid the finality rule embodied in 28 U.S.C.A. § 1291. To review the district court’s refusal to grant the writ under the facts of this ease is to invite the inundation of appellate dockets with requests for review of interlocutory orders and to undermine the ability of trial judges to achieve the orderly and expeditious disposition of eases. The order of the district court dismissing the action for want of prosecution will be affirmed. . The district court granted partial summary judgment on the ground of res judicata on all issues except the claim of lack of proper medical treatment for plaintiff’s injured elbow. Appellant did not appeal from this judgment. . The State Corréctional Institution at Gra-terford is located in the Eastern District of Pennsylvania." } ]

[ { "docid": "22452113", "title": "", "text": "that the remaining factors were not in favor of Briscoe. It found that Briscoe was personally responsible for his refusal to attend the conference, his refusal was willful because he had ignored the court’s specific warning to him, and his failure to attend the conference prejudiced the defendants because the defendants could not “effectively prepare for trial so as to bring the litigation to a resolution.” Additionally, it found that, although Briscoe did not have a history of dilatoriness, his refusal to attend the conference was a dilatory tactic in light of his request for an extension of time to comply with the court’s order regarding pretrial documentation. Finally, it found that alternative sanctions were unavailable in the present case. Based on its evaluation of these factors, the District Court dismissed Briscoe’s case. Its order stated: 1. The Plaintiffs action is DISMISSED ON THE MERITS for failure to prosecute and comply with orders of [the] Court pursuant to Fed.R.Civ.P. 41(b); 2. The Clerk of Court is directed to CLOSE this case; 3. Any appeal from this Order will be deemed frivolous, lacking in probable cause and not in good faith. On September 29, 2004, Briscoe filed a timely notice of appeal to this Court. II. The District Court had jurisdiction over this case pursuant to 28 U.S.C. § 1343(a)(3), and we have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review a District Court’s decision to dismiss a plaintiffs case pursuant to Federal Rule of Civil Procedure 41(b) for an abuse of discretion. Emerson v. Thiel Coll., 296 F.3d 184, 190 (3d Cir.2002). “While we defer to the District Court’s discretion, dismissal with prejudice is only appropriate in limited circumstances and doubts should be resolved in favor of reaching a decision on the merits.” Id. II. Federal Rule of Civil Procedure 41(b) permits a District Court to dismiss a plaintiffs case for failure to prosecute. See Fed.R.Civ.P. 41(b) (“If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it.”)." }, { "docid": "5349539", "title": "", "text": "Generally, a dismissal with prejudice constitutes an appealable final order under § 1291. See, e.g., In re Merck & Co. Sec., Derivative & ERISA Litig., 493 F.3d 393, 399 (3d Cir.2007). Furthermore, “[u]nder the ‘merger rule,’ prior interlocutory orders [such as class-certification decisions] merge with the final judgment in a case, and the interlocutory orders (to the extent that they affect the final judgment) may be reviewed on appeal from the final order.” In re Westinghouse Sec. Litig., 90 F.3d 696, 706 (3d Cir.1996). Even so, Ap-pellees urge that Appellants’ voluntary dismissals of their claims constitute impermissible attempts to manufacture finality under Sullivan. We agree. In Sullivan, the plaintiffs brought a class action under Rule 23. 566 F.2d at 444-45. On. the day Sullivan was scheduled for trial, the district court denied the plaintiffs’ motion to certify a class action. Id. at 445. The plaintiffs, in turn, refused to present any evidence at trial and the district court dismissed their claims under Rule 41(b) for failure to prosecute. Id. The plaintiffs then sought review of the denial of class certification by our Court, arguing that the dismissal for failure to prosecute was a final order appealable pursuant to § 1291. Id. We began our opinion by noting that a “class certification decision, per se, is not an appealable final order under 28 U.S.C. § 1291,” but rather is an interlocutory order. Id. We characterized the dismissal for failure to prosecute “as an attempt to avoid this [CJourt’s firm position against interlocutory appeals of class certification determinations.” Id. Such a “strategy,” this Court reasoned, was impermissible because “ ‘[i]f a litigant could refuse to proceed whenever a trial judge ruled against him, wait for the court to enter a dismissal for failure to prosecute, and then obtain review of the judge’s interlocutory decision, the policy against piecemeal litigation and review would be severely weakened.’ ” Id. at 445 (quoting Marshall v. Sielaff, 492 F.2d 917, 919 (3d Cir.1974)). Allowing such a practice would risk “inundati[ng] ... appellate dockets with requests for review of interlocutory orders and ... [could] undermine the ability" }, { "docid": "22437982", "title": "", "text": "over otherwise non-appealable decisions. We have observed, with respect to similar strategic conduct by plaintiffs: [I]f a litigant could refuse to proceed whenever a trial judge ruled against him, wait for the court to enter a dismissal for failure to prosecute, and then obtain review of the judge’s interlocutory decision, the policy against piecemeal litigation and review would be severely weakened. This procedural technique would in effect provide a means to avoid the finality rule embodied in 28 U.S.C. § 1291. Moreover, if a party who was disappointed by an interlocutory ruling could obtain an appeal of that ruling by simply refusing to prosecute his or her lawsuit, adherence to the merger rule would reward that party for dilatory and bad faith tactics. Such a result would conflict with the purpose of a Rule 41(b) dismissal for failure to prosecute, which is to penalize dilatoriness and harassment of defendants. Shannon v. Gen. Elec. Co., 186 F.3d 186, 192 (2d Cir.1999) (brackets, ellipsis, citations, and internal quotation marks omitted; footnote added); see also Rabbi Jacob Joseph Sch. v. Province of Mendoza, 425 F.3d 207, 210-11 (2d Cir.2005); Martens v. Thomann, 273 F.3d 159, 183 (2d Cir.2001). The same concerns arise here. To overlook the defendants’ forfeiture would be to “permit[ ] ... an end-run around the final judgment rule.” Palmieri v. Defaria, 88 F.3d 136, 140 (2d Cir.1996). But see Savin v. Ranier, 898 F.2d 304, 307 (2d Cir.1990) (reviewing, on appeal from default judgment, the merits of appearing defendant’s jurisdictional defense, where plaintiff did not claim that defendant had forfeited that defense by defaulting). We also decline to overlook the defendants’ forfeiture based on their assertion that they suffered grave financial hardship by being forced to defend a lawsuit in New York. The defendants appear to contend that it would be unfair to expect them to have waited until after trial to seek appellate review of the district court’s adverse interlocutory decisions concerning personal jurisdiction. Citing Gulf Coast Fans, Inc. v. Midwest Electronics Importers, Inc., 740 F.2d 1499 (11th Cir.1984), they urge that the district court’s decision to delay final" }, { "docid": "10001484", "title": "", "text": "due to a SEPTA strike.” When he was told the hearing was at 2:00, he stated that his client, Ms. Dunbar, was probably in the courtroom at that time. This probability is not confirmed in the record. Around 1:40 p.m., Mr. Green called to say he would be a half hour late for the hearing. The court announced that it was dismissing the action for failure to prosecute. Mr. Green apparently entered the courtroom at 2:31 p.m., but did not address the court. By order dated April 18,1986, the district court formally dismissed Ms. Dunbar’s action pursuant to F.R.Civ.P. 41(b). The dismissal was based on various unchallenged defaults and derelictions of duty by Ms. Dunbar’s counsel, Isaac Green. The record fully justified the district court’s statement that the administration of justice was thwarted and abused insofar as Mr. Green was concerned. This appeal followed. II. Incredibly, Mr. Green’s appellate brief does not contend that the district court committed error in dismissing Ms. Dunbar’s case for failure to prosecute. It was this court which required Mr. Green to address the only proper issue on appeal, whether the district court abused its discretion by dismissing the action under F.R. Civ.P. 41(b). Rule 41(b) provides, in part, “For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of any action or of any claim against him.” We have cautioned that dismissal in this context is a drastic tool and may be appropriately invoked only after careful analysis of several factors, including, (1) the extent of the party’s personal responsibility; (2) the prejudice to the adversary caused by the failure to meet the scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense. Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863, 868 (3d Cir.1984); see Scarborough" }, { "docid": "12000249", "title": "", "text": "individual to the next, and that those job duties were “highly relevant in terms of how, why and whether the employees were compensated properly for missed or interrupted meal breaks.” Id. at *5. In addition, more than 300 different individuals supervised the plaintiffs, the supervisors had individual authority to implement policies as to the meal deduction, and the supervisors’ practices varied in this regard. Id. Finally, Judge Ambrose agreed with the defendants’ argument that they would need to present individualized defenses to establish whether the FLSA was violated as to each plaintiff, which “could not be generalized among the 824 plaintiffs.” Id. at *6. Judge Bissoon reached similar conclusions in Camesi. See Camesi v. Univ. of Pittsburgh Med. Ctr., No. 09-85J, 2011 WL 6372873 (W.D. Pa. Dec. 20, 2011). Thus, both judges concluded that the opt-in plaintiffs were not “similarly situated” to the named plaintiffs. When they decertified the two collective actions, the judges also dismissed the claims of all opt-in plaintiffs without prejudice to re-filing individual actions. B. In an express effort to seek immediate appellate review of the decertification orders, the named plaintiffs in both Camesi and Kuznyetsov moved to voluntarily dismiss their claims with prejudice pursuant to Rule 41(a) of the Federal Rules of Civil Procedure. The two district judges granted the motions and the named plaintiffs promptly filed notices of appeal. This court consolidated the two appeals. In Camesi v. Univ. of Pittsburgh Med. Ctr., 729 F.3d 239 (3d Cir. 2013), we dismissed the appeals for lack of jurisdiction. First, we determined that a decertification order, like a class certification order in the Rule 23 context, is an interlocutory order that is not appealable under 28 U.S.C. § 1291. Id. at 245. Then, relying on our class action decision in Sullivan v. Pac. Indem. Co., 566 F.2d 444 (3d Cir. 1977), which we found to be controlling, we determined that the named plaintiffs in Camesi and Kuznyetsov improperly had attempted to short-circuit the procedure for appealing an interlocutory order that is separate from, and unrelated to, the merits of their case. Camesi, 729 F.3d at 245." }, { "docid": "23120628", "title": "", "text": "defendants argue persuasively, having this Court address the arbitrability issue on appeal could give the individual plaintiffs an unfair advantage because they might otherwise have been unable to appeal the question of arbi-trability. If the district court had determined that the individual plaintiffs’ claims were subject to valid and enforceable arbitration agreements and compelled arbitration, the individual plaintiffs could not have immediately appealed that decision. See, e.g., Ermenegildo Zegna Corp. v. Zegna, 133 F.3d 177, 181 (2d Cir.1998) (stating that, in embedded proceedings where a party seeks relief other than or in addition to an order requiring or prohibiting arbitration, “the party that has unsuccessfully opposed arbitration must await the conclusion of the arbitration before airing its arguments in opposition to arbitration before an appellate court”). This Court has recently condemned allowing unappealable interlocutory issues to hitch a free ride into the Court of Appeals on an order dismissing a case for failure to prosecute: [I]f a party who was disappointed by an interlocutory ruling could obtain an appeal of that ruling by simply refusing to prosecute his or her lawsuit, adherence to the merger rule would reward that party for dilatory and bad faith tactics. Such a result would conflict with the purpose of a Rule 41(b) dismissal for failure to prosecute, which is to penalize dilatoriness and harassment of defendants. These considerations suggest that interlocutory orders should not ordinarily merge with a final judgment dismissing an action for failure to prosecute. Shannon, 186 F.3d at 192 (internal quotation marks, citations and alterations omitted). As a result, this Court applies a “general rule that interlocutory orders do not properly merge with a final judgment dismissing an action for failure to prosecute.” Id. Thus, while strictly speaking we are not faced with a question of jurisdiction to decide the arbitrability issue, the fact that the individual plaintiffs would not have been able to appeal a decision by the district court finding that the claims were arbitrable militates against this Court addressing that issue on appeal. CONCLUSION We have considered all remaining arguments and find them to be without merit. For" }, { "docid": "22416908", "title": "", "text": "(3d Cir.), cert. denied, 496 U.S. 926, 110 S.Ct. 2620, 110 L.Ed.2d 641 (1990); Elfman Motors, Inc. v. Chrysler Corp., 567 F.2d 1252, 1253 (3d Cir.1977) (“the appeal from a final judgment draws in question all prior non-final orders and rulings which produced the judgment”) (citation omitted). Under this rule, the district court’s orders in Westinghouse I and Westinghouse II merged with the final order dismissing the remaining claims with prejudice and closing the case and thus would ordinarily be subject to review on appeal from the final order. Defendants, however, invoke an exception to the merger rule pursuant to which courts decline to reach prior interlocutory rulings where to do so would undermine the policy against piecemeal appeals. See generally, e.g., Sere v. Board of Trustees of Univ. of Illinois, 852 F.2d 285, 288 (7th Cir.1988) (“Although the general rule is that rulings on interlocutory orders are encompassed within a subsequent final judgment and may be reviewed as part of that judgment, the rule is inapplicable where adherence would reward a party for dilatory and bad faith tactics.”) (citations omitted). The line of cases relied upon by defendants stands for the proposition that a dismissal with prejudice for failure to prosecute frequently bars review of previously entered interlocutory orders. Without addressing the potential scope of this exception to the merger rule, see Fassett v. Delta Kappa Epsilon (New York), 807 F.2d 1150, 1155 n. 6 (3d Cir.1986) (dictum declining to extend Sullivan holding beyond class certification context), cert. denied, 481 U.S. 1070, 107 S.Ct. 2463, 95 L.Ed.2d 872 (1987), we conclude that the exception has no application here. The failure-to-prosecute cases upon which defendants rely are distinguishable from plaintiffs’ decision in this case to stand on the second amended complaint— a decision that we regard as squarely governed by our holding in UJB. We are confident that our review of the merits of the orders in Westinghouse I and Westinghouse II will not “invite the inundation of appellate dockets with requests for review of interlocutory orders [or] undermine the ability of trial judges to achieve the orderly and expeditious" }, { "docid": "22232277", "title": "", "text": "as relevant when a court determines the consequences of a party’s failure to prosecute or defend as provided in the Federal Rules of Civil Procedure. Those factors include the following: 1. The extent of the party’s personal responsibility for failure to prosecute or defend. 2. The extent of any prejudice to the adversary from that failure. 3. Any history of dilatoriness on the part of the recalcitrant party. 4. Whether the attorney’s conduct was willful or in bad faith. 5. The adequacy of alternative sanctions. 6. Whether the underlying claim appears to have merit. Depending on the record before the court, consideration of one or more of the Poulis factors may be required when a party moves under Rule 37(b)(2) for dismissal of an opponent’s claim as a sanction for a failure to respond to discovery, e.g., Hicks v. Feeney, 850 F.2d 152 (3d Cir.1988), cert. denied, 488 U.S. 1005, 109 S.Ct. 786, 102 L.Ed.2d 777 (1989), when a defendant moves under Rule 41(b) for an involuntary dismissal as a sanction for a failure to prosecute, e.g., Dunbar v. Triangle Lumber and Supply Co., 816 F.2d 126 (3d Cir.1987), or when a plaintiff moves under Rule 55(b) for a default judgment as a sanction for a failure to plead or otherwise defend, e.g., Comdyne I, Inc. v. Corbin, 908 F.2d 1142 (3d Cir.1990). We have never held, however, that consideration of Poulis type factors is required before a court enters a summary judgment on an uncontested Rule 56 motion and we decline to do so in this case. Summary judgment under Rule 56 is not entered as a sanction, and, as this case demonstrates, it simply would not be feasible for district courts to comply with such a requirement. When the moving party makes the showing of entitlement to relief required by Rule 56 and its opponent fails to respond, the court will not, in most instances, have a record that will permit it to give consideration to the Poulis factors. In this case, for example, when the district court entered summary judgment, it had no way of knowing, short" }, { "docid": "23298721", "title": "", "text": "ruled against him, wait for the court to enter a dismissal for failure to prosecute, and then obtain review of the judge’s interlocutory decision, the policy against piecemeal litigation and review would be severely weakened. This procedural technique would in effect provide a means to avoid the finality rule embodied in 28 U.S.C.A. § 1291. To review the district court’s refusal . under the facts of this case is to invite the inundation of appellate dockets with requests for review of interlocutory orders and to undermine the ability of trial judges to achieve the orderly and expeditious disposition of cases.” 566 F.2d at 445-46 (quoting Marshall v. Sielaff, 492 F.2d 917, 919 (3d Cir. 1974)). We are aware, of course, that our holding may force to trial some small claims to assure that the denial of class certification will be reviewed as part of a “final decision.” We are also aware that we have said that “[a]ll interlocutory rulings [merge] in the final judgment and are reviewable on the appeal therefrom.” Sackett v. Beaman, 399 F.2d 884, 889 n. 6 (9th Cir. 1968). Thus, ordinarily, “an order denying class certification is subject to effective review after final judgment at the behest of the named plaintiff or intervening class members.” Coopers & Lybrand v. Livesay, supra, 437 U.S. at 469, 98 S.Ct. at 2458. We have earlier reviewed such an order following a dismissal for failure to obey an order of the court, Fendler v. Westgate-California Corp., 527 F.2d 1168 (9th Cir. 1975) (per curiam), but the parties cite, and we have found, no authority indicating that we have done so where a ruling on an interlocutory order in effect caused a failure to prosecute. These circumstances warrant a limited exception to the merger rule. We recognize that we must balance conflicting interests. The hardship in refusing review of the denial of class certification after a dismissal allegedly caused by that denial and the forcing of some small claims to trial must be measured against the incentive for dilatory failure to prosecute in the district court that would otherwise result. We,conclude" }, { "docid": "22771220", "title": "", "text": "not liable under Title VII. Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061, 1077-78 (3d Cir.1996) (en banc). III. The District Court dismissed with prejudice Emerson’s remaining claims against Thiel for failure to prosecute or to comply with its orders pursuant to Federal Rule of Civil Procedure 41(b). We review such an order for an abuse of discretion. Adams v. Trustees of the N.J. Brewery Employees’ Pension Trust Fund, 29 F.3d 863, 870 (3d Cir.1994). While we defer to the District Court’s discretion, dismissal with prejudice is only appropriate in limited circumstances and doubts should be resolved in favor of reaching a decision on the merits. Id. To determine whether the District Court abused its discretion, we evaluate its balancing of the following factors: (1) the extent of the party’s personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense. Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863, 868 (3d Cir.1984). With respect to Emerson’s personal responsibility, the District Court recognized that because Emerson is proceeding pro se, his failure to comply with its orders could not be blamed on counsel. The District Court further stated, and the record reflects, that there has been a pattern of a failure to comply with the court’s orders based upon unsubstantiated allegations of medical disability resulting from various alleged accidents. In considering the second Poulis factor, the District Court found that it would be inherently prejudicial to Thiel to allow the case to go to trial without considering its summary judgment motion. Although it is unclear why the court would not consider Thiel’s motion, Thiel argues that it has suffered prejudice because it had to wait six months to file its summary judgment motion due to the stay and eight more months" }, { "docid": "10001485", "title": "", "text": "Green to address the only proper issue on appeal, whether the district court abused its discretion by dismissing the action under F.R. Civ.P. 41(b). Rule 41(b) provides, in part, “For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of any action or of any claim against him.” We have cautioned that dismissal in this context is a drastic tool and may be appropriately invoked only after careful analysis of several factors, including, (1) the extent of the party’s personal responsibility; (2) the prejudice to the adversary caused by the failure to meet the scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense. Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863, 868 (3d Cir.1984); see Scarborough v. Eubanks, 747 F.2d 871 (3d Cir.1984). In this case, the district court specifically determined that Mr. Green acted in bad faith to avoid bringing this case to trial. We believe the record fully supports this finding and that Mr. Green’s conduct rises to the level of willfulness and contumaciousness necessary to support the sanction of dismissal. See Donnelly v. JohnsManville Sales Corp., 677 F.2d 339 (3d Cir.1982). The district court further found that defendant was prejudiced by the pattern of dilatoriousness but no specific evidence is noted and we find none other than delay. The court also stated that it had considered the imposition of alternative sanctions but it had “determined that such sanctions would have little or no effect in bringing this ease to trial.” The district court evaluated certain of the factors mentioned in Poulis. It cannot be said that its appraisal amounted to an abuse of discretion. This is particularly so given the extraordinary patience of the court in dealing with Mr. Green. However, one of the factors to be considered" }, { "docid": "22106069", "title": "", "text": "WL 89604 (E.D.Pa. Jan.23, 2002). This appeal followed. II. EXCLUSION OF EVIDENCE AS A SANCTION Federal Rule of Civil Procedure 37(b)(2)(B) authorizes a district court to sanction a party’s failure to comply with a discovery order by “prohibiting that party from introducing designated matters into evidence.” We previously have noted that “[although the exclusion of evidence for violation of a discovery order is an ‘extreme sanction,’ ” a trial court’s decision to do so “will not be disturbed on appeal absent a clear abuse of discretion.” In re TMI Litig., 193 F.3d 613, 721 (3d Cir.1999) (internal citations omitted). Exclusion under Rule 37(b)(2)(B) is particularly extreme when the sanction is tantamount to dismissing the claim, as it was here. In Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863, 868 (3d Cir.1984), we explained: In exercising our appellate function to determine whether the trial court has abused its discretion in dismissing ... we will be guided by the manner in which the trial court balanced the following factors ... and whether the record supports its findings: (1) the extent of the party’s personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense. (emphases omitted). See also Emerson v. Thiel Coll., 296 F.3d 184, 190-91 (3d Cir.2002) (applying the Poulis factors). Each factor need not be satisfied.for the trial court to dismiss a claim. Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir.1988). They “should be weighed by the district courts in order to assure that the ‘extreme’ sanction of dismissal ... is reserved for the instances in which it is justly merited.” Poulis, 747 F.2d at 870. And though the sanction may be extreme, the appellate court’s standard of review is deferential. In Poulis, for example, “[ujnder these circumstances, although we might not" }, { "docid": "22925993", "title": "", "text": "appeal, Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1975). Y. In evaluating whether the district court abused its discretion in dismissing with prejudice, our review is “guided by the manner in which the trial court balanced [six] factors ... and whether the record supports its findings.” Poulis, 747 F.2d at 868. The six factors are: (1) the extent of the party’s personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense. Poulis, 747 F.2d at 868. The district court thoroughly considered all of the six Poulis categories, and found all except meritoriousness indicated dismissal. We likewise will consider each factor in turn. 1. The party’s personal responsibility a. Although a party may justly suffer dismissal “because of his counsel’s unexcused conduct,” Link, 370 U.S. at 633, 82 S.Ct. at 1390, we “have increasingly emphasized visiting sanctions directly on the delinquent lawyer, rather than on a client who is not actually at fault.” Carter v. Albert Einstein Medical Ctr., 804 F.2d 805, 807 (3d Cir.1986); see also Burns v. MacMeekin, 722 F.2d 32, 35 (3d Cir.1983) (holding district court must consider alternative remedy to dismissal, because “[t]he brunt of the order [to dismiss] falls on plaintiffs, who have been deprived of the opportunity to litigate their ease on the merits, when the only culpable party may be their attorney.”). Thus, in determining whether dismissal is appropriate, we look to whether the party bears personal responsibility for the action or inaction which led to the dismissal. b. The district court held the PBGC personally responsible, explaining, “[t]his is not the sympathetic situation of an innocent client suffering the sanction of dismissal due to dilatory counsel whom it hired to represent it.” Michota v. Anheuser-Busch, Inc., C.A. No. 77-2543, slip op." }, { "docid": "22437981", "title": "", "text": "appeal, to be deferred until final judgment has been entered.” Mohawk Indus., Inc. v. Carpenter, — U.S. -, 130 S.Ct. 599, 605, 175 L.Ed.2d 458 (2009) (internal quotation marks omitted). In including a requirement of finality in defining the scope of our jurisdiction under 28 U.S.C. § 1291, Congress “ ‘expressed] a preference that some erroneous trial court rulings go uncorrected until the appeal of a final judgment, rather than having litigation punctuated by piecemeal appellate review of trial court decisions which do not terminate the litigation.”’ In re World Trade Ctr. Disaster Site Litig., 521 F.3d 169, 178 (2d Cir.2008) (quoting Richardson-Merrell, Inc. v. Roller, 472 U.S. 424, 430, 105 S.Ct. 2757, 86 L.Ed.2d 340 (1985)). Denials of dispositive motions are therefore not ordinarily appealable on an interlocutory basis. See, e.g., Napoli v. Town of New Windsor, 600 F.3d 168, 170 (2d Cir.2010) (per curiam). We cannot permit the defendants to short-circuit the normal litigation process by withdrawing, inducing a default judgment to be entered against them, and then obtaining de facto interlocutory review over otherwise non-appealable decisions. We have observed, with respect to similar strategic conduct by plaintiffs: [I]f a litigant could refuse to proceed whenever a trial judge ruled against him, wait for the court to enter a dismissal for failure to prosecute, and then obtain review of the judge’s interlocutory decision, the policy against piecemeal litigation and review would be severely weakened. This procedural technique would in effect provide a means to avoid the finality rule embodied in 28 U.S.C. § 1291. Moreover, if a party who was disappointed by an interlocutory ruling could obtain an appeal of that ruling by simply refusing to prosecute his or her lawsuit, adherence to the merger rule would reward that party for dilatory and bad faith tactics. Such a result would conflict with the purpose of a Rule 41(b) dismissal for failure to prosecute, which is to penalize dilatoriness and harassment of defendants. Shannon v. Gen. Elec. Co., 186 F.3d 186, 192 (2d Cir.1999) (brackets, ellipsis, citations, and internal quotation marks omitted; footnote added); see also Rabbi Jacob Joseph" }, { "docid": "23022523", "title": "", "text": "failure to comply with a discovery order. It is quite reasonable to conclude that a party who has been subjected to such an order will feel duly chastened, so that even though he succeeds in having the order reversed on appeal, he will nonetheless comply promptly with future discovery orders of the district court. But here, as in other areas of the law, the most severe in the spectrum of sanctions provided by statute or rule must be available to the district court in appropriate cases, not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent. Id. at 642-43, 96 S.Ct. at 2780-81. In Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863 (3d Cir.1984), we examined the factors that must be considered in determining whether the district court properly exercised its discretion in ordering an extreme discovery sanction. See also Scarborough v. Eubanks, 747 F.2d 871, 875-78 (3d Cir.1984) (applying Poulis factors to Rule 41 default judgment). The six factors identified in Poulis are: (1) the extent of the party’s personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense. 747 F.2d at 868 (emphasis omitted). The district court in the case sub judice balanced the six Poulis factors to deter mine whether dismissal was the appropriate sanction. To determine whether the district court abused its discretion, “[w]e will be guided by the manner in which the court balanced the Poulis factors and whether the record supports its findings.” Ali v. Sims, 788 F.2d at 957. B. Application of the Poulis Factors 1. Bedwell’s Personal Responsibility The district court found that “plaintiff here, through its president Thomas Bedwell, shares" }, { "docid": "23215882", "title": "", "text": "Inc., 608 F.2d 1234 (9th Cir.1979), we refused to review an interlocutory order after the district court dismissed, without prejudice, the plaintiffs claims for failure to prosecute: If a litigant could refuse to proceed whenever a trial judge ruled against him, wait for the court to enter a dismissal for failure to prosecute, and then obtain re view of the judge’s interlocutory decision, the policy against piecemeal litigation and review would be severely weakened. This procedural technique would in effect provide a means to avoid the finality rule embodied in 28 U.S.C. § 1291. Id. at 1239 (quoting Sullivan v. Pacific Indem. Co., 566 F.2d 444, 445-46 (3d Cir.1977)). Finally, in Ash v. Cvetkov, 739 F.2d 493 (9th Cir.1984), cert. denied, 470 U.S. 1007, 105 S.Ct. 1368, 84 L.Ed.2d 387 (1985), we followed Huey under similar circumstances and noted that “[i]t would be unwise to encourage all would-be appellants from interlocutory orders to delay for the purpose of dismissal for lack of prosecution and review of otherwise unreviewable decisions.” Id. at 497. Although we appeared to take the opposite position in Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533 (9th Cir.1984), we find that case distinguishable here. After the district court in Robertson dismissed several counts for failure to state a claim, the plaintiff voluntarily dismissed without prejudice his remaining causes of action and, without analysis, we exercised jurisdiction over the subsequent appeal. In Robertson, however, unlike in Cheng and in this case, the claims disappeared from the district court once the plaintiff dismissed them. Here, as in Cheng, the parties stipulated to revive the dismissed claims in the event of reversal on appeal. In essence, the claims remained in the district court pending a decision by this court. We see this as a clear, and impermissible, attempt to circumvent Rule 54(b). As a result, we find Fletcher, Huey, and Ash, which all rest on the same premise as Cheng — litigants should not be able to avoid the final judgment rule without fully relinquishing the ability to further litigate unresolved claims — more persuasive and supportive of" }, { "docid": "12000250", "title": "", "text": "immediate appellate review of the decertification orders, the named plaintiffs in both Camesi and Kuznyetsov moved to voluntarily dismiss their claims with prejudice pursuant to Rule 41(a) of the Federal Rules of Civil Procedure. The two district judges granted the motions and the named plaintiffs promptly filed notices of appeal. This court consolidated the two appeals. In Camesi v. Univ. of Pittsburgh Med. Ctr., 729 F.3d 239 (3d Cir. 2013), we dismissed the appeals for lack of jurisdiction. First, we determined that a decertification order, like a class certification order in the Rule 23 context, is an interlocutory order that is not appealable under 28 U.S.C. § 1291. Id. at 245. Then, relying on our class action decision in Sullivan v. Pac. Indem. Co., 566 F.2d 444 (3d Cir. 1977), which we found to be controlling, we determined that the named plaintiffs in Camesi and Kuznyetsov improperly had attempted to short-circuit the procedure for appealing an interlocutory order that is separate from, and unrelated to, the merits of their case. Camesi, 729 F.3d at 245. We explained that the named plaintiffs could have obtained appellate review of the de-certification decision by proceeding to a final judgment on the merits of their individual claims or, in the alternative, by seeking permission to certify an interlocutory appeal under 28 U.S.C. § 1292(b). Instead, plaintiffs attempted to manufacture finality through a voluntary dismissal of their cases. We rejected this “procedural sleight-of-hand.” Id. We further determined that, by voluntarily dismissing their claims with prejudice, the named plaintiffs mooted their claims in Camesi and Kuznyetsov. Id. at 247. In doing so, the named plaintiffs extinguished any residual representational interest they may once have had in bringing claims on behalf of individuals who had filed consents to opt in to the collective action. Id. We did not then address the more difficult question of whether, when individuals have opted in to a collective action following conditional certification, a plaintiff who has filed the collective action may retain a justiciable interest in the litigation based only upon his or her representative capacity. Instead, we concluded that, in" }, { "docid": "22452114", "title": "", "text": "this Order will be deemed frivolous, lacking in probable cause and not in good faith. On September 29, 2004, Briscoe filed a timely notice of appeal to this Court. II. The District Court had jurisdiction over this case pursuant to 28 U.S.C. § 1343(a)(3), and we have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review a District Court’s decision to dismiss a plaintiffs case pursuant to Federal Rule of Civil Procedure 41(b) for an abuse of discretion. Emerson v. Thiel Coll., 296 F.3d 184, 190 (3d Cir.2002). “While we defer to the District Court’s discretion, dismissal with prejudice is only appropriate in limited circumstances and doubts should be resolved in favor of reaching a decision on the merits.” Id. II. Federal Rule of Civil Procedure 41(b) permits a District Court to dismiss a plaintiffs case for failure to prosecute. See Fed.R.Civ.P. 41(b) (“If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it.”). To determine if the District Court abused its discretion in dismissing the case, “we will be guided by the manner in which the trial court balanced the following factors, ... and whether the record supports its findings: (1) the extent of the party’s personal responsibility, (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilato-riness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions-, and (6) the meritoriousness of the claim or defense.” Poulis, 747 F.2d at 868 (emphasis in original). We will conduct an analysis of the Poulis factors below, but first, we note that “dismissals with prejudice ... are drastic sanctions.” Id. at 867-68. As a result, it is imperative that the District Court have a full understanding of the surrounding facts and circumstances pertinent to the Poulis factors before it undertakes its analysis. Cf. Emerson, 296 F.3d" }, { "docid": "21572928", "title": "", "text": "district court on the Rule 37(b) issue. 3. Dr. Sere also contends that the Rule 37(b) dismissal should apply only to the Title VII claim. He submits that the failure to comply with the court’s discovery orders did not affect the § 1981 claim because it already had been dismissed pursuant to Rule 12(b)(6). As an interlocutory order, the § 1981 dismissal, according to Dr. Sere, was appealable when the district court entered its final judgment. Again, we find no merit to this contention. Although the general rule is that rulings on interlocutory orders are encompassed within a subsequent final judgment and may be reviewed as part of that judgment, see Elscint, Inc. v. First Wisconsin Fin. Corp. (In re Xonics, Inc.), 813 F.2d 127, 130-31 (7th Cir.1987); Reichman v. United States Fire Ins. Co. (In re Kilgus), 811 F.2d 1112, 1115 (7th Cir.1987), the rule is inapplicable where adherence would reward a party for dilatory and bad faith tactics. As the Ninth Circuit has noted in this regard: If a litigant could refuse to proceed whenever a trial judge ruled against him, wait for the court to enter a dismissal for failure to prosecute, and then obtain review of the judge’s interlocutory decision, the policy against piecemeal litigation and review would be severely weakened. This procedural technique would in effect provide a means to avoid the finality rule embodied in 28 U.S.C.A. § 1291. To review the district court’s refusal ... is to invite the inundation of appellate dockets with requests for review of interlocutory orders and to undermine the ability of trial judges to achieve the orderly and expeditious disposition of cases. Ash v. Cvetkov, 739 F.2d 493, 497 (9th Cir.1984) (quoting Huey v. Teledyne, Inc., 608 F.2d 1234, 1240 (9th Cir.1979), cert. denied; 458 U.S. 1106, 102 S.Ct. 3484, 73 L.Ed.2d 1367 (1982) (quoting Sullivan v. Pacific Indem. Co., 566 F.2d 444, 445-46 (3d Cir.1977))), cert. denied, 470 U.S. 1007, 105 S.Ct. 1368, 84 L.Ed.2d 387 (1985). It is particularly important to adhere to this principle here. Dr. Sere’s failure to complete his deposition and to initiate" }, { "docid": "23215881", "title": "", "text": "action even after granting summary judgment on the other claims. Horn solidifies our conclusion that we lack jurisdiction. B. We find further support for our decision to dismiss the plaintiffs’ appeal in analogous cases discussing whether parties may voluntarily dismiss (or may refuse to further prosecute in order to have the court involuntarily dismiss) unresolved claims without prejudice in order to secure appellate review of nonfi-nal district court orders. Although these cases do not involve stipulations to dismiss claims with the right to reinstate upon reversal, they implicate identical policy concerns and therefore are highly relevant. In Fletcher v. Gagosian, 604 F.2d 637 (9th Cir.1979), for example, we dismissed an appeal from an interlocutory order after the plaintiff had voluntarily dismissed without prejudice the unresolved claims. We held that dismissal did not “convertí] what had been an unappealable order into an appeal-able order” and rejected “the notion that the policies against multiplicity of litigation and against piecemeal appeals may be avoided at the whim of a plaintiff.” Id. at 638-39. Similarly, in Huey v. Teledyne, Inc., 608 F.2d 1234 (9th Cir.1979), we refused to review an interlocutory order after the district court dismissed, without prejudice, the plaintiffs claims for failure to prosecute: If a litigant could refuse to proceed whenever a trial judge ruled against him, wait for the court to enter a dismissal for failure to prosecute, and then obtain re view of the judge’s interlocutory decision, the policy against piecemeal litigation and review would be severely weakened. This procedural technique would in effect provide a means to avoid the finality rule embodied in 28 U.S.C. § 1291. Id. at 1239 (quoting Sullivan v. Pacific Indem. Co., 566 F.2d 444, 445-46 (3d Cir.1977)). Finally, in Ash v. Cvetkov, 739 F.2d 493 (9th Cir.1984), cert. denied, 470 U.S. 1007, 105 S.Ct. 1368, 84 L.Ed.2d 387 (1985), we followed Huey under similar circumstances and noted that “[i]t would be unwise to encourage all would-be appellants from interlocutory orders to delay for the purpose of dismissal for lack of prosecution and review of otherwise unreviewable decisions.” Id. at 497. Although we appeared" } ]

[ { "docid": "5031895", "title": "", "text": "OPINION COOLAHAN, District Judge: This is a motion under Rule 37, Fed. Rules Civ.Proc. to compel answers to certain questions propounded during depositions taken pursuant to ancillary discovery proceedings authorized by 35 U.S.C. § 24. This provision allows opponents before the Patent Office to obtain depositions in interference cases by leave of court. Foster Wheeler filed a patent application on May 27, 1964 for its steam generator. On April 13, 1965, Babcock & Wilcox filed a similar patent application. The Patent Office declared an interference and began its proceeding to determine the rightful patentee. Because the Patent Office Rules of Practice do not provide for pretrial discovery, the parties have come before this Court pursuant to 35 U.S.C. § 24. On June 3, 1970 this Court ordered Foster Wheeler to produce its co-inventors for depositions, and this order was renewed upon application by Babcock & Wilcox for sanctions for noncompliance exactly one year later. Foster Wheeler appealed from the Court’s order of June 3, 1970 and the order for discovery was affirmed by the Third Circuit on September 14, 1970. Babcock & Wilcox Co. v. Foster Wheeler Corp., 432 F.2d 385 (3d Cir. 1970). A fuller discussion of the procedural history of this case, not relevant to this motion, may be found there. Foster Wheeler later appealed the entry of this Court’s discovery order of June 3, 1971. Babcock & Wilcox cross-appealed from the denial of sanctions under Rule 37. Further, Babcock & Wilcox sought a reversal of this Court’s ruling that certain Foster Wheeler documents were subject to the attorney/client privilege and not discoverable. Foster Wheeler withdrew its appeal from the order entered on June 3, 1971 and proceeded ahead with discovery. The Babcock & Wilcox cross appeal for sanctions, and discovery, however, still remains before the Third Circuit. An order of a district Court allowing or denying discovery in proceedings ancillary to a patent interference case is clearly a final, appealable order under 28 U.S.C. § 1291. In re Natta, 410 F.2d 187 (3d Cir. 1969), cert. denied, Montecatini Edison SpA v. E I du Pont de Nemours" } ]

[ { "docid": "17719038", "title": "", "text": "Patent Office discovery rules. See Frilette v. Kimberlin, 508 F.2d 205 (CA3, 1974) (en banc), cert. denied, 421 U.S. 980, 95 S.Ct. 1983, 44 L.Ed.2d 472 (1975) (overruling In re Natta, supra); Sheehan v. Doyle, 513 F.2d 895 (CA1); cert. denied, 423 U.S. 874, 96 S.Ct. 144, 46 L.Ed.2d 106 (1975), after further proceedings, 529 F.2d 38 (CA1), cert. denied, 429 U.S. 870, 97 S.Ct. 182, 50 L.Ed.2d 150 (1976). There is no controlling Fifth Circuit precedent. We find the Frilette reasoning persuasive. In Frilette, the Third Circuit argued that if the Congress that enacted 35 U.S.C. § 24 had intended to change previous practice in favor of the unique system of allowing district courts to control pre-trial discovery before an administrative agency, it would have used more explicit language to obtain this result or at least there would be some indication in the legislative history that this was the congressional intent. 508 F.2d at 211 — 12. In reaching this conclusion the court stressed the disrupting effects of allowing district court interference in Patent Office proceedings. The reason given by courts that have allowed district courts to grant discovery where BI rules do not allow it is that the “clear language” of the statute (quoted in note 3 supra) allows no other result. See, e. g., Natta v. Zletz, 379 F.2d 615, 618 (CA7, 1967); In re Natta, 388 F.2d 215, 217 (CA3, 1968). But, as the Frilette court suggests, the language is not so clear as to compel the conclusion that Congress meant to allow discovery in district courts independent of BI control. See 508 F.2d at 211; accord Sheehan II, 529 F.2d at 40; see generally Note, Discovery in Patent Interference Proceedings, 89 Harv.L.Rev. 573, 573-89 (1976). Because BI discovery rules do not appear to permit discovery of this material at this time, as shown by BI’s disapproval of Brown’s discovery request, if Frilette and Sheehan are followed, Brad-dick will prevail on the merits. In sum, Braddick has met all requirements for issuance of a stay pending appeal. Therefore, the temporary stay granted at his request will" }, { "docid": "2388423", "title": "", "text": "law as previously enunciated should no longer prevail because of the recent occurrence of two events: (1) the 1970 amendments to the Federal Rules of Civil Procedure which eliminated the good cause requirement as a prerequisite to Rule 34 document requests, and (2) the introduction by the Patent Office in June 1971 of the discovery provisions of Rule 287. With respect to the 1970 amendments, the district court stated: “Since the good cause requirement was apparently a factor in the federal courts’ willingness to interpret § 24 broadly, this Court is unable to conclude that § 24 would have received a similar construction absent this safeguard. In such circumstances, it would not be unreasonable to continue to impose a good cause requirement under 35 U.S.C. § 24.” 358 F.Supp. at 495-496. The district court went on to conclude that Frilette had not made a showing of good cause. With respect to the recent introduction by the Patent Office of the discovery provisions of Rule 287, the district court stated that the absence of any discovery mechanism in the Patent Office prior to the promulgation of Rule 287 had been a significant factor in the federal courts’ willingness to give 35 U.S.C. § 24 a broad reading and to assume jurisdiction over discovery matters in interference proceedings. The district court felt that the introduction of the Patent Office discovery rules “appear[s] to reflect the Patent Office’s efforts to construct a discovery process which embodies the good cause requirement cited” in such cases as In re Natta, supra, and that Rule 287 might, therefore, require a redefinition of the federal courts’ role in granting discovery in interference proceedings under 35 U.S.C. § 24. Based upon the above two considerations, the district court announced the following limitation on its role in interference discovery cases arising under 35 U.S.C. § 24: “While a federal court cannot abrogate its responsibility to assume jurisdiction under 35 U.S.C. § 24, it must not blind itself to the ancillary, supportive role, it is designed to fulfill in interference matters. Until the Patent Office has had a reasonable opportunity" }, { "docid": "2388430", "title": "", "text": "available prior to the testimony period solely for the purpose of determining the matters upon which the opponent will rely, not those which might build an affirmative case for the discovering party. Therefore, Rule 287 does not provide for discovery as broad in scope as the discovery which may be provided by a district court under § 24. Secondly, Congress, presumably well aware of the conflict between the availability of broad discovery under 35 U.S.C. § 24 and the traditional order of proof procedure of interference proceedings, repeatedly refused to amend 35 U.S.C. § 24 to eliminate this conflict prior to the adoption of Rule 287 in June 1971. Finally, the language of 35 U.S.C. § 24 is mandatory, and it is questionable whether the Patent Office’s promulgation of a narrow discovery rule can restrict the force and effect of such language. I believe that the district court should take the above factors into account in reconsidering Frilette’s motion. As a final matter, I reject the contention of appellee Kimberlin that the district court order denying Frilette’s discovery motion was conditional rather then final, and that it was, therefore, not an appealable final order under 28 U.S.C. § 1291. See Babcock & Wilcox Co. v. Foster Wheeler Corp., 415 F.2d 777 (3d Cir. 1969). In my view, the district court order was intended to be a final disposition of Frilette’s motion for discovery. I would vacate the May 15, 1973, district court order and remand the case to the district court for proceedings consistent with the foregoing views. B. Duffy Case As stated in Judge Adams’ opinion, I agree that the district court did not abuse its discretion in allowing Duffy to proceed with discovery relating to whether Barnes and Preziosi filed their patent application fraudulently. Circuit Judge ADAMS concurs in the statutory analysis set forth in this opinion and in the application of that analysis to the Frilette case. . I do not disagree with the majority opinion’s statement that the language of the majority in In re Natta, 388 F.2d 215 (3d Cir. 1968), gave an unjustifiably broad" }, { "docid": "2388426", "title": "", "text": "good cause is not, and never was, a requirement of any of the discovery rules except F.R. Civ.P. 34, and that courts have granted discovery in patent interferences under such other discovery rules without regard to good cause. See, e. g., Babcock & Wilcox Co. v. Foster Wheeler Corp., 54 F.R.D. 474 (D.N.J.1971) (motion to compel discovery under F.R.Civ.P. 37). Secondly, Frilette contends that the reasons for the. 1970 amendment of F.R. Civ.P. 34, eliminating the good cause requirement, apply with equal force whether the parties seeking discovery are parties to a Patent Office interference or litigants in a different type of civil proceeding. Finally, Frilette contends that the application of a different standard to the scope of discovery under the Federal Rules when the interference is pending before the Patent Office would not only impair the Patent Office’s quest for truth but also necessarily increase the number of suits in the district courts under 35 U.S.C. § 146 after decisions of the Board of Patent Interferences since, as the district court in the instant case noted, “on appeal to the district court from a decision by the Board of Patent Interferences, the movant may be entitled to broad discovery under the Federal Rules without any showing of good cause or other particular reason for the requested discovery.” 358 F.Supp. at 498 n. 7. Thus, Frilette argues, losing parties in interference proceedings are more inclined to bring a civil action under 35 U.S.C. § 146 if broader discovery is available in such civil action. I agree with these contentions and accordingly would hold that the district court erred in judicially imposing a good cause requirement upon discovery in patent interferences under 35 U.S.C. § 24. In 1970, Congress saw fit to permit the removal of the good cause requirement from the Federal Rules of Civil Procedure to become effective, and I perceive no logical reason why courts should carve an exception to such legislative action with respect to patent interferences. The district court, in resolving Frilette’s request for discovery in the instant case, should have considered the same factors that" }, { "docid": "2388428", "title": "", "text": "it would consider in resolving a discovery request in any other civil proceeding. One further aspect of this case requires discussion. As stated above, the district court, in addition to requiring Frilette to show good cause, stated that the Patent Office’s recent promulgation of Rule 287 rendered distinguishable the Natta case and other cases which provided for broad discovery in the federal courts under 35 U.S.C. § 24. Reasoning that the presence of Rule 287 might require a restructuring of the federal courts’ role under 35 U.S.C. § 24 and enable federal courts to assume a more limited, secondary role in interference discovery matters, the district court proceeded to “scrutinize Frilette’s particular discovery requests in light of the issues before the Patent Office.” 358 F.Supp. at 496. The district court then noted, in denying Frilette’s motion, “that under Rule 287(a) and (c), Frilette’s discovery directed to Kimberlin’s case in chief is premature.” Id. at 498. The district court did not make clear, however, whether its denial of Frilette’s motion was based solely upon Frilette’s inability to show good cause or also upon the Patent Office’s prior denial of Frilette’s motion as premature under Rule 287(a) and (c). Because of this uncertainty, I would remand to the district court for reconsideration of Frilette’s discovery motion and, if necessary, clarification of its reasons for denial of such motion, in light of my belief that the district court erred in requiring Frilette to show good cause. Accordingly, I would not attempt to resolve definitively in this appeal the issue of what effect Patent Office Rule 287 has upon the availability of discovery under 35 U.S.C. § 24, particularly where the Board of Patent Interferences has denied a motion under Patent Office Rule 287 requesting the same discovery. I have, however, substantial doubt as to whether the presence of Rule 287 compels a narrowing of the federal court’s broad role in interference discovery proceedings under 35 U.S.C. § 24. Several factors underlie this doubt. First, on its face, Rule 287 provides for only limited discovery in the Patent Office. Under Rule 287(a), discovery is" }, { "docid": "2388410", "title": "", "text": "prior to the period set for the preparation' for testimony. (Added June 11, 1971).” . Frilette v. Kimberlin, 358 F.Supp. 493 (D.C. Del. 1973). . The court held that a motion under Fed.R. Civ.P. 34 to produce documents by a party under cross examination would be allowed since the same result could be obtained by a subpoena duces tecum. The opinion did not purport to include all discovery rules. . A motion had been made by a senior party under Rule 34 for documents to use in connection with a cross examination of junior party employees on rebuttal testimony. Presentation of testimony was in process though the witness was not yet on the stand. Relying on Gladrow v. Weisz, supra, the court ordered production under Rule 34. Again, it seems that the material could have been secured by a subpoena duces tecum. . In this case a subpoena had been issued. By way of dictum and without any review of the history of 35 U.S.C. § 24, the district court held that Fed.R.Civ.P. 26, 30, 34, and 45 were applicable. Subpoenas were ordered quashed because good cause had not been shown. Apparently, the subpoenas were issued in connection with presentation of testimony. However, in the later case of Korman v. Nobile, 133 U.S.P.Q. 178 (W.D.Mich.1962), the same judge in passing upon another motion in the same interference proceeding said that the broad provision of the rules relating generally to discovery did not apply. . The opinion contained the statement that “This statute manifests a clear congressional intent to make available to parties to patent interferences the broad discovery provisions of the Federal Rules of Civil Procedure.” 388 F.2d at 217. In Sears, Discovery in Interferences, 53 Journal of the Patent Office Society 693 (1971), the author, one of the counsel appearing in the Natta cases, stated that “discovery” in proceedings before the adoption of the Federal Rules of Civil Procedure in 1937 was secured in connection with testimony to be presented as evidence at the trial. Since this evidence was in deposition form following the old equity practice, extremely wide" }, { "docid": "2388429", "title": "", "text": "to show good cause or also upon the Patent Office’s prior denial of Frilette’s motion as premature under Rule 287(a) and (c). Because of this uncertainty, I would remand to the district court for reconsideration of Frilette’s discovery motion and, if necessary, clarification of its reasons for denial of such motion, in light of my belief that the district court erred in requiring Frilette to show good cause. Accordingly, I would not attempt to resolve definitively in this appeal the issue of what effect Patent Office Rule 287 has upon the availability of discovery under 35 U.S.C. § 24, particularly where the Board of Patent Interferences has denied a motion under Patent Office Rule 287 requesting the same discovery. I have, however, substantial doubt as to whether the presence of Rule 287 compels a narrowing of the federal court’s broad role in interference discovery proceedings under 35 U.S.C. § 24. Several factors underlie this doubt. First, on its face, Rule 287 provides for only limited discovery in the Patent Office. Under Rule 287(a), discovery is available prior to the testimony period solely for the purpose of determining the matters upon which the opponent will rely, not those which might build an affirmative case for the discovering party. Therefore, Rule 287 does not provide for discovery as broad in scope as the discovery which may be provided by a district court under § 24. Secondly, Congress, presumably well aware of the conflict between the availability of broad discovery under 35 U.S.C. § 24 and the traditional order of proof procedure of interference proceedings, repeatedly refused to amend 35 U.S.C. § 24 to eliminate this conflict prior to the adoption of Rule 287 in June 1971. Finally, the language of 35 U.S.C. § 24 is mandatory, and it is questionable whether the Patent Office’s promulgation of a narrow discovery rule can restrict the force and effect of such language. I believe that the district court should take the above factors into account in reconsidering Frilette’s motion. As a final matter, I reject the contention of appellee Kimberlin that the district court order" }, { "docid": "2388425", "title": "", "text": "to implement its discovery procedures and has demonstrated the parameters within which they will be administered, the courts are in no position to evaluate the potential efficacy of the procedures and the possibility that the courts will be able to assume a secondary role in discovery. In light of these general considerations, the Court must scrutinize Frilette’s partic ular discovery requests in light of the issues before the Patent Office.” 358 F.Supp. at 496. Frilette’s primary contention on appeal is that, in light of the elimination by Congress in 1970 of the good cause requirement as a prerequisite to the grant of discovery under F.R.Civ.P. 34, the district court erred in judicially imposing a good cause requirement upon a party seeking discovery in an interference proceeding. Specifically, Frilette claims that the district court’s resurrection of the good cause requirement, on the ground that 35 U.S.C. § 24 would have received a different construction by this court in Natta and other courts absent the good cause safeguard, has no basis in logic. First, Frilette notes that good cause is not, and never was, a requirement of any of the discovery rules except F.R. Civ.P. 34, and that courts have granted discovery in patent interferences under such other discovery rules without regard to good cause. See, e. g., Babcock & Wilcox Co. v. Foster Wheeler Corp., 54 F.R.D. 474 (D.N.J.1971) (motion to compel discovery under F.R.Civ.P. 37). Secondly, Frilette contends that the reasons for the. 1970 amendment of F.R. Civ.P. 34, eliminating the good cause requirement, apply with equal force whether the parties seeking discovery are parties to a Patent Office interference or litigants in a different type of civil proceeding. Finally, Frilette contends that the application of a different standard to the scope of discovery under the Federal Rules when the interference is pending before the Patent Office would not only impair the Patent Office’s quest for truth but also necessarily increase the number of suits in the district courts under 35 U.S.C. § 146 after decisions of the Board of Patent Interferences since, as the district court in the instant" }, { "docid": "2388421", "title": "", "text": "“Subpoena “(a) For Attendance of Witnesses; Form; Issuance. “(b) For Production of Documentary Evidence. “(c) Service. “(d) Subpoena for Taking Depositions; Place of Examination. “(e) Subpoena for a Hearing or Trial. “(f) Contempt. According to the plain meaning of the words used in (a) 35 U.S.C. § 24, as amended in 1952, and (b) Rules 34 and 45, it seems clear that the words “the Federal Rules of Civil Procedure” referred at least to Rule 34 as well as Rule 45. Otherwise, Congress could have retained the wording of 35 U.S.C. § 54, merely substituting “Federal Rule of Civil Procedure 45” for “section 647 of Title 28.” A. Frilette Case In the Frilette case, during the preparations-for-testimony stage, prior to the commencement of the junior party Fri-lette’s taking of testimony, Frilette filed a motion for discovery with the Board of Patent Interferences under Patent Office Rule 287(c), seeking certain information from Kimberlin. The Board of Patent Interferences denied the motion in a decision dated January 17, 1973, on the ground, inter alia, that the motion under 287(c) for additional discovery was premature “since the time for service of documents and lists by Kimberlin ., the senior party, under Rule 287(a) has not closed and in view of the fact that it is therefore not known what documents and lists will be served . . Frilette also filed in the district court a motion to compel discovery under F.R. Civ.P. 37. In this motion, Frilette sought substantially the same discovery sought in the Patent Office, and requested an order compelling Kimberlin (1) to designate certain witnesses under F.R. Civ.P. 30(b)(6), (2) to answer certain interrogatories under F.R.Civ.P. 33, (3) to produce documents under F.R.Civ.P. 34, and (4) to admit certain facts under F.R. Civ.P. 36. A hearing on this motion was held before the district court, and, in an Opinion and Order dated May 15, 1973, the district court denied the motion. See Frilette v. Kimberlin, 358 F.Supp. 493 (D.Del.1973). Frilette appeals from this denial of his motion. The district court, in denying Frilette’s motion to compel discovery,' stated that the" }, { "docid": "2388420", "title": "", "text": "within such district, commanding him to appear and testify before an officer in such district authorized to take depositions and affidavits, at the time and place stated in the subpoena. The provisions of the Federal Rules of Civil Procedure relating to the attendance of witnesses and to the production of documents and things shall apply to contested cases in the Patent Office.” (Emphasis supplied.) The reference to Rule 45 was effectively-contained in the statute prior to the 1952 Act. Not only did the amending language alter this reference, but it also referred for the first time to the “provisions of the . . . Rules relating to . the production of documents and things.” These exact words were used in the title of Rule 34 as it existed in 1952. The title to this Rule, as amended in 1946, read as follows in 1952: “Rule 34. Discovery and Production of Documents and Things for Inspection, Copying, or Photographing.” As opposed to this title, the titles and subtitles of Rule 45 read as follows: “Rule 45. “Subpoena “(a) For Attendance of Witnesses; Form; Issuance. “(b) For Production of Documentary Evidence. “(c) Service. “(d) Subpoena for Taking Depositions; Place of Examination. “(e) Subpoena for a Hearing or Trial. “(f) Contempt. According to the plain meaning of the words used in (a) 35 U.S.C. § 24, as amended in 1952, and (b) Rules 34 and 45, it seems clear that the words “the Federal Rules of Civil Procedure” referred at least to Rule 34 as well as Rule 45. Otherwise, Congress could have retained the wording of 35 U.S.C. § 54, merely substituting “Federal Rule of Civil Procedure 45” for “section 647 of Title 28.” A. Frilette Case In the Frilette case, during the preparations-for-testimony stage, prior to the commencement of the junior party Fri-lette’s taking of testimony, Frilette filed a motion for discovery with the Board of Patent Interferences under Patent Office Rule 287(c), seeking certain information from Kimberlin. The Board of Patent Interferences denied the motion in a decision dated January 17, 1973, on the ground, inter alia, that the motion" }, { "docid": "17719037", "title": "", "text": "likelihood that he will prevail on the merits. We believe such a showing has been made. Since it appears clear that the district court’s finding of contempt on the part of Braddick was a finding of civil, rather than criminal, contempt, the district court contempt order will be invalid if the underlying subpoena was wrongly issued. ITT Community Dev. Corp. v. Barton, 569 F.2d 1351, 1357 (CA5, 1978). The prevailing interpretation of 35 U.S.C. § 24 has been that it authorizes district courts to grant discovery beyond that permitted by BI discovery rules and rules of admissibility. See, e. g., In re Natta, 388 F.2d 215 (CA3,1968); Babcock & Wilcox Co. v. Combustion Eng’r, Inc., 430 F.2d 1177 (CA2, 1968), aff’g mem. 314 F.Supp. 235 (D.Conn.); Natta v. Hogan, 392 F.2d 686 (CA10, 1968); Natta v. Zletz, 379 F.2d 615 (CA7, 1967). Recently, however, the First and Third Circuits have rejected this interpretation of § 24 and have held that § 24 authorizes district courts to enforce subpoenas only for materials that are discoverable under Patent Office discovery rules. See Frilette v. Kimberlin, 508 F.2d 205 (CA3, 1974) (en banc), cert. denied, 421 U.S. 980, 95 S.Ct. 1983, 44 L.Ed.2d 472 (1975) (overruling In re Natta, supra); Sheehan v. Doyle, 513 F.2d 895 (CA1); cert. denied, 423 U.S. 874, 96 S.Ct. 144, 46 L.Ed.2d 106 (1975), after further proceedings, 529 F.2d 38 (CA1), cert. denied, 429 U.S. 870, 97 S.Ct. 182, 50 L.Ed.2d 150 (1976). There is no controlling Fifth Circuit precedent. We find the Frilette reasoning persuasive. In Frilette, the Third Circuit argued that if the Congress that enacted 35 U.S.C. § 24 had intended to change previous practice in favor of the unique system of allowing district courts to control pre-trial discovery before an administrative agency, it would have used more explicit language to obtain this result or at least there would be some indication in the legislative history that this was the congressional intent. 508 F.2d at 211 — 12. In reaching this conclusion the court stressed the disrupting effects of allowing district court interference in Patent" }, { "docid": "2388422", "title": "", "text": "under 287(c) for additional discovery was premature “since the time for service of documents and lists by Kimberlin ., the senior party, under Rule 287(a) has not closed and in view of the fact that it is therefore not known what documents and lists will be served . . Frilette also filed in the district court a motion to compel discovery under F.R. Civ.P. 37. In this motion, Frilette sought substantially the same discovery sought in the Patent Office, and requested an order compelling Kimberlin (1) to designate certain witnesses under F.R. Civ.P. 30(b)(6), (2) to answer certain interrogatories under F.R.Civ.P. 33, (3) to produce documents under F.R.Civ.P. 34, and (4) to admit certain facts under F.R. Civ.P. 36. A hearing on this motion was held before the district court, and, in an Opinion and Order dated May 15, 1973, the district court denied the motion. See Frilette v. Kimberlin, 358 F.Supp. 493 (D.Del.1973). Frilette appeals from this denial of his motion. The district court, in denying Frilette’s motion to compel discovery,' stated that the law as previously enunciated should no longer prevail because of the recent occurrence of two events: (1) the 1970 amendments to the Federal Rules of Civil Procedure which eliminated the good cause requirement as a prerequisite to Rule 34 document requests, and (2) the introduction by the Patent Office in June 1971 of the discovery provisions of Rule 287. With respect to the 1970 amendments, the district court stated: “Since the good cause requirement was apparently a factor in the federal courts’ willingness to interpret § 24 broadly, this Court is unable to conclude that § 24 would have received a similar construction absent this safeguard. In such circumstances, it would not be unreasonable to continue to impose a good cause requirement under 35 U.S.C. § 24.” 358 F.Supp. at 495-496. The district court went on to conclude that Frilette had not made a showing of good cause. With respect to the recent introduction by the Patent Office of the discovery provisions of Rule 287, the district court stated that the absence of any discovery" }, { "docid": "2388393", "title": "", "text": "applicant first in time is called the senior party, and the other is designated the junior party. After all parties have filed preliminary statements presenting the grounds for their positions, a period of time is set by an examiner for the filing of motions. Thereafter, the Board of Patent Examiners establishes a time schedule designating when the parties must present their trial evidence by means of deposition, affidavit, or stipulation. The junior party is required to produce his evidence first, and the senior party follows. In the preliminary stages of the Duffy case, the junior party, Barnes, et al., filed a motion supported by affidavits. The motion was denied by the patent examiner, and in due course the junior party sought relief from the Commissioner of Patents. In the interim, the senior party, Duffy, applied to the district court in New Jersey . . . for subpoenas duces tecum to compel discovery by depositions. After argument, the district court wrote an opinion permitting discovery but limiting it to matters dealing with the veracity of the affidavits attached to the junior party’s motion. In the Frilette case, the junior party filed a request for discovery with the Patent Office pursuant to its Rule 287(c). The motion was denied by the Board as being premature since the time for filing documents by the senior party under Rule 287(a) had not yet expired. The junior party then applied to the district court in Delaware, which also denied discovery in an opinion holding that good cause had not been shown, and that the request was premature. This anomaly — permitting discovery in the district court while matters are still pending before an administrative agency — exists only in patent interferences. Generally, discovery is not available in administrative procedures. Davis, 1 Administrative Law Treatise § 8.15 at 588 says: “The APA contains no provision for pre-trial discovery in the administrative process and, of course, the provisions of the Federal Rules of Civil Procedure for discovery do not apply to administrative proceedings. Therefore, in the absence of special statutory provision, and in the absence of special" }, { "docid": "2388424", "title": "", "text": "mechanism in the Patent Office prior to the promulgation of Rule 287 had been a significant factor in the federal courts’ willingness to give 35 U.S.C. § 24 a broad reading and to assume jurisdiction over discovery matters in interference proceedings. The district court felt that the introduction of the Patent Office discovery rules “appear[s] to reflect the Patent Office’s efforts to construct a discovery process which embodies the good cause requirement cited” in such cases as In re Natta, supra, and that Rule 287 might, therefore, require a redefinition of the federal courts’ role in granting discovery in interference proceedings under 35 U.S.C. § 24. Based upon the above two considerations, the district court announced the following limitation on its role in interference discovery cases arising under 35 U.S.C. § 24: “While a federal court cannot abrogate its responsibility to assume jurisdiction under 35 U.S.C. § 24, it must not blind itself to the ancillary, supportive role, it is designed to fulfill in interference matters. Until the Patent Office has had a reasonable opportunity to implement its discovery procedures and has demonstrated the parameters within which they will be administered, the courts are in no position to evaluate the potential efficacy of the procedures and the possibility that the courts will be able to assume a secondary role in discovery. In light of these general considerations, the Court must scrutinize Frilette’s partic ular discovery requests in light of the issues before the Patent Office.” 358 F.Supp. at 496. Frilette’s primary contention on appeal is that, in light of the elimination by Congress in 1970 of the good cause requirement as a prerequisite to the grant of discovery under F.R.Civ.P. 34, the district court erred in judicially imposing a good cause requirement upon a party seeking discovery in an interference proceeding. Specifically, Frilette claims that the district court’s resurrection of the good cause requirement, on the ground that 35 U.S.C. § 24 would have received a different construction by this court in Natta and other courts absent the good cause safeguard, has no basis in logic. First, Frilette notes that" }, { "docid": "2388434", "title": "", "text": "to contested cases in the Patent Office.” When this bill was reintroduced in revised form in the 82nd Congress as H.R.3760, the last sentence of the first paragraph of proposed 35 U.S.C. § 24 had been changed to read: “The provisions of the Federal Rules of Civil Procedure relating to the attendance of witnesses and the production of documents and things shall apply to contested cases in the Patent Office.” The result of the many suggestions from the Patent Bar and the public concerning H.R. 9133 and the reintroduction of this bill in revised form in the 82nd Congress as H.R. 3760 is contained in House Report No. 1923, May 12, 1952. This history reveals the substitution for the words “the issuance of subpoenas duces tecum” of the words “the attendance of witnesses and the production of documents and things,” which is the language appearing in the 1952 Patent Act. . The Advisory Committee’s Note concerning the 1970 changes in F.R.Civ.P. 34 stated: “Good cause is eliminated because it has furnished an uncertain and erratic protection to the parties from whom production is sought and is now rendered unnecessary by virtue of the more specific provisions added to Rule 26(b) relating to materials assembled in preparation for trial and to experts retained or consulted by parties.” See Moore’s Federal Practice, Vol. 4A, 34.01 (2d ed. 1972). . I recognize that in many cases it will be desirable for the parties to seek discovery first under Rule 287, but it is not necessary to make a definitive ruling on this point in this case. See Frilette v. Kimberlin, 358 F.Supp. 493-496 (D.Del.1973). See also note 9, infra. Also, I believe that any discovery ruling by the Patent Office is a factor to be considered by the district court in ruling on a motion such as that presented to the district court in this case. Cf. Laveson v. Trans World Airlines, 471 F.2d 76 (3d Cir. 1972); In re Natta, 264 F.Supp. 734, 738 (D.Del.1967). . While Patent Office Rule 287(c) provides that the Board of Patent Interferences may grant further discovery" }, { "docid": "2388427", "title": "", "text": "case noted, “on appeal to the district court from a decision by the Board of Patent Interferences, the movant may be entitled to broad discovery under the Federal Rules without any showing of good cause or other particular reason for the requested discovery.” 358 F.Supp. at 498 n. 7. Thus, Frilette argues, losing parties in interference proceedings are more inclined to bring a civil action under 35 U.S.C. § 146 if broader discovery is available in such civil action. I agree with these contentions and accordingly would hold that the district court erred in judicially imposing a good cause requirement upon discovery in patent interferences under 35 U.S.C. § 24. In 1970, Congress saw fit to permit the removal of the good cause requirement from the Federal Rules of Civil Procedure to become effective, and I perceive no logical reason why courts should carve an exception to such legislative action with respect to patent interferences. The district court, in resolving Frilette’s request for discovery in the instant case, should have considered the same factors that it would consider in resolving a discovery request in any other civil proceeding. One further aspect of this case requires discussion. As stated above, the district court, in addition to requiring Frilette to show good cause, stated that the Patent Office’s recent promulgation of Rule 287 rendered distinguishable the Natta case and other cases which provided for broad discovery in the federal courts under 35 U.S.C. § 24. Reasoning that the presence of Rule 287 might require a restructuring of the federal courts’ role under 35 U.S.C. § 24 and enable federal courts to assume a more limited, secondary role in interference discovery matters, the district court proceeded to “scrutinize Frilette’s particular discovery requests in light of the issues before the Patent Office.” 358 F.Supp. at 496. The district court then noted, in denying Frilette’s motion, “that under Rule 287(a) and (c), Frilette’s discovery directed to Kimberlin’s case in chief is premature.” Id. at 498. The district court did not make clear, however, whether its denial of Frilette’s motion was based solely upon Frilette’s inability" }, { "docid": "7003957", "title": "", "text": "testimony which might be consequent from the District Court ancillary proceeding for documentary production.” Natta v. Zletz, supra, 379 F.2d at page 618. DuPont’s argument that the rules governing the admissibility of evidence in Patent Office interference proceedings control and, therefore, the discovery standards of the Federal Rules of Civil Procedure should not have been applied below cannot be accepted. The fact that evidence obtained by Montecatini as a result of the District Court’s order may not be admissible in the proceedings pending before the Patent Office does not vitiate Montecatini’s right to obtain it. Both the federal discovery rules and the Regulations governing Patent Office interference proceedings recognize the distinction. Title 37 C.F.R. § 1.286 provides : “Subject to the provisions of § 1.285, objection may be made to receiving in evidence any deposition or part thereof, or any other evidence, for any reason which would require the exclusion of the evidence according to the established rules of evidence, which will be applied strictly by the Office.” See also: Rule 26(b), Fed.R.Civ.Proc. Definitely the fact that some evidence obtained by discovery may subsequently be held inadmissible by the Patent Office presents no reason to deny discovery. We are satisfied that the Federal Rules of Civil Procedure apply to this ease and are not at all persuaded that the scope of discovery under these Rules should be governed by the Patent Office rules relating to admissibility. DuPont argues alternatively that even if this Court does hold that the federal discovery rules apply here, Montecatini is nevertheless prohibited from making the discovery it seeks. It resists the production of any documents dated between August 19, 1954 and December 30, 1955 on the grounds that Montecatini has not exhibited the requisite good cause since the validity of the August application must be determined solely from the four corners of the document. It further contends that the only issue is priority of invention, and nothing after August 19, 1954 is relevant to this inquiry. The District Court amply discussed these issues and justifiably found that Montecatini had shown both good cause and relevancy." }, { "docid": "2388394", "title": "", "text": "affidavits attached to the junior party’s motion. In the Frilette case, the junior party filed a request for discovery with the Patent Office pursuant to its Rule 287(c). The motion was denied by the Board as being premature since the time for filing documents by the senior party under Rule 287(a) had not yet expired. The junior party then applied to the district court in Delaware, which also denied discovery in an opinion holding that good cause had not been shown, and that the request was premature. This anomaly — permitting discovery in the district court while matters are still pending before an administrative agency — exists only in patent interferences. Generally, discovery is not available in administrative procedures. Davis, 1 Administrative Law Treatise § 8.15 at 588 says: “The APA contains no provision for pre-trial discovery in the administrative process and, of course, the provisions of the Federal Rules of Civil Procedure for discovery do not apply to administrative proceedings. Therefore, in the absence of special statutory provision, and in the absence of special administrative regulation, no procedure for discovery is normally available in a federal administrative proceeding.” [Footnote omitted] Though there has been much criticism directed toward the absence of these procedures in administrative matters, little has been done to cure it except in the Patent Office. See Davis, supra. ' The parties in these cases assert their right to secure discovery in the district court upon the authority of 35 U.S.C. § 24 which reads: “The clerk of any United States court for the district wherein testimony is to be taken for use in any contested case in the Patent Office, shall, upon the application of any party thereto, issue a subpoena for any witness residing or being within such district, commanding him to appear and testify before an officer in such district authorized to take depositions and affidavits, at the time and place stated in the subpoena. The provisions of the Federal Rules of Civil Procedure relating to the attend- anee of witnesses and to the production of documents and things shall apply to contested cases" }, { "docid": "2388411", "title": "", "text": "34, and 45 were applicable. Subpoenas were ordered quashed because good cause had not been shown. Apparently, the subpoenas were issued in connection with presentation of testimony. However, in the later case of Korman v. Nobile, 133 U.S.P.Q. 178 (W.D.Mich.1962), the same judge in passing upon another motion in the same interference proceeding said that the broad provision of the rules relating generally to discovery did not apply. . The opinion contained the statement that “This statute manifests a clear congressional intent to make available to parties to patent interferences the broad discovery provisions of the Federal Rules of Civil Procedure.” 388 F.2d at 217. In Sears, Discovery in Interferences, 53 Journal of the Patent Office Society 693 (1971), the author, one of the counsel appearing in the Natta cases, stated that “discovery” in proceedings before the adoption of the Federal Rules of Civil Procedure in 1937 was secured in connection with testimony to be presented as evidence at the trial. Since this evidence was in deposition form following the old equity practice, extremely wide latitude was extended to the concept of relevancy and materiality because the parties would not know in advance what rulings would be made at trial. This was a practical approach designed to avoid a remand for the taking of further testimony made necessary by unanticipated rulings at trial or on appeal and, of course,, allowed “discovery” of information arguably irrelevant and immaterial which led to other evidence of more value. As the author states candidly, “Perhaps unfortunately, some practitioners were motivated to go much further than the Natta cases did, or were ever intended to go, and to seek so-called ‘pretrial discovery’ during the interference motion period regardless of their ultimate entitlement to present evidence in the interference.” In both cases at bar, discovery was sought in advance of the time set either for testimony or discovery as permitted by the new Patent Office rules. In Duffy, application was not made to the Patent Office, and in Frilette, application had been made and refused as premature. . The Natta case discussed here was but one" }, { "docid": "2388409", "title": "", "text": "rely on any document or thing in his possession, custody, or control, or on any witness, not listed and served by that party as required by paragraph (a) of this rule, except upon a promptly filed motion accompanied by the proposed additional documents or lists together with a showing of sufficient cause as to why they were not served by the date set pursuant to paragraph (a) of this rule. “(2) Any failure to comply with an order under the provisions of paragraph (c) of this rule may be considered by the Board of Patent Interferences as basis for applying appropriate restrictions against the party failing to comply, for holding certain facts to have been established, and in an appropriate case for awarding priority against him, or for taking such other action as may be deemed appropriate. “(e) The parties may by agreement among themselves modify any of the foregoing requirements consistent with the schedule of times for taking testimony and filing the record. In the absence of such agreement, discovery will not be permitted prior to the period set for the preparation' for testimony. (Added June 11, 1971).” . Frilette v. Kimberlin, 358 F.Supp. 493 (D.C. Del. 1973). . The court held that a motion under Fed.R. Civ.P. 34 to produce documents by a party under cross examination would be allowed since the same result could be obtained by a subpoena duces tecum. The opinion did not purport to include all discovery rules. . A motion had been made by a senior party under Rule 34 for documents to use in connection with a cross examination of junior party employees on rebuttal testimony. Presentation of testimony was in process though the witness was not yet on the stand. Relying on Gladrow v. Weisz, supra, the court ordered production under Rule 34. Again, it seems that the material could have been secured by a subpoena duces tecum. . In this case a subpoena had been issued. By way of dictum and without any review of the history of 35 U.S.C. § 24, the district court held that Fed.R.Civ.P. 26, 30," } ]

[ { "docid": "6572404", "title": "", "text": "No statutory authority requires the bankruptcy court to consider the income of a non-debtor spouse in computing disposable income, but courts have held that an accurate application of chapter 13’s disposable income test (11 U.S.C. § 1328(b)) is not possible without including in the debtor’s budget income from all sources including a non-debtor spouse. In re Strong, 84 B.R. 541, 543 (Bankr.N.D.Ind.1988); In re Saunders, 60 B.R. 187, 188 (Bankr.N.D.Ohio 1986); see also In re Kern, 40 B.R. 26, 28-29 (Bankr.S.D.N.Y.1984) (debtor proposed to pay all expenses for himself and his non-debtor wife even though she could bear her share and he supported his budget with the assertion that his wife would divorce him if she were asked to contribute to her own support; held, creditor’s objection sustained because to confirm the plan excluding all of the wife’s income would force the debtor’s creditors to subsidize part of the wife’s living expenses and the Code contemplated no such result); In re Sellers, 33 B.R. 854, 857 (Bankr.D.Colo.1983) (debtor's attempts to exclude the non-debtor wife’s income from his budget because they “... were about to separate ...,” with no divorce on file, was insufficient to exclude the wife’s income from the calculation of the debtor’s disposable income); Georgia Railroad Bank & Trust Company v. Kull (In re Kull), 12 B.R. 654, 659 (S.D.Ga.1981), aff'd Kitchen v. Georgia Railroad Bank & Trust Co. (In re Kitchen), 702 F.2d 885 (11th Cir.1983) (court held that in applying good faith analysis, income of the debtor and the debt- or’s spouse must be considered). In a similar vein, bankruptcy courts have considered the non-debtor spouse’s income when determining whether a debtor’s student loan should be discharged due to undue hardship. Connecticut Student Loan Foundation, Inc. v. Bagley (In re Bagley), 4 B.R. 248, 249 (Bankr D.Ariz.1980); Lezer v. New York State Higher Education Services Corp. (In re Lezer), 21 B.R. 783, 789 (Bankr.N.D.N.Y.1982). Additionally, inclusion of household income from all sources is used during the course of a substantial abuse inquiry. 11 U.S.C. § 707(b) (1989); Strong, 84 B.R. at 543; In re Bryant, 47" } ]

[ { "docid": "23658743", "title": "", "text": "his expenses by $13.50, leaving only a negligible amount of disposable income available for payment of his other debts. If, however, we also consider his wife’s monthly income and her expenses, the result is a combined income of $2,944.00 against total expenses of $1,905.50. This translates into excess monthly income of $1,038.50, giving debtor the ability to repay his unsecured debt of $11,247.30. This case presents the issue of whether granting relief to this debtor would create a substantial abuse of the provisions of Chapter 7, thus, requiring dismissal pursuant to 11 U.S.C. § 707(b). To fully and properly resolve this issue, however, another important question must be answered first. That question is whether the court should consider the income of a non-debtor spouse when making its inquiry and determination. Ill This court believes that it must consider the income of both debtor and a non-petitioning spouse during the course of a § 707(b) substantial abuse inquiry. Bankruptcy courts in other jurisdictions have done so, without explanation, in making their own inquiries as to whether substantial abuse exists. An example of this tendency is found in the case of In re Bryant, 47 B.R. 21 (Bankr.W.D.N.C.1984). There debtor filed a Chapter 7 petition individually and listed monthly income for both himself and his non-debtor spouse totaling $3,420.00. Bryant, 47 B.R. at 24. In holding that a substantial abuse of Chapter 7 was present, the court considered the total family income and expenses as a matter of course. Bryant, 47 B.R. at 24-26. The importance accorded the income and expenses of a non-petitioning spouse in substantial abuse cases should be similar to the significance given this same factor in considering Chapter 13 plan confirmations and the undue hardship discharge of student loans. In Chapter 13 cases where a married debtor files a single petition, courts commonly consider the debtor’s income from all sources, including a non-debtor spouse, when assessing compliance with the plan confirmation requirements of 11 U.S.C. § 1325. In re Sellers, 33 B.R. 854, 857 (Bankr.D.Col.1983). Indeed, an accurate analysis of Chapter 13’s disposable income test (11 U.S.C. §" }, { "docid": "8400361", "title": "", "text": "of an allowed unsecured claim objects to the confirmation of the plan, then the court may not approve the plan unless, as of the effective date of the plan— (A) the value of the property to be distributed under the plan on account of such claim is not less than the amount of such claim; or (B) the plan provides that all of the debtor’s projected disposable income to be received in the three-year period beginning on the date that the first payment is due under the plan will be applied to make payments under the plan. See 11 U.S.C. § 1325(b)(l)(A)-(B). The Code defines disposable income. It is “income which is received by the debtor and which is not reasonably necessary to be expended for the maintenance or support of the debtor or a dependent of the debtor.” See 11 U.S.C. § 1325(b)(2)(A). In Sigfrid, the court suggested that “[w]hen a married debtor files individually ... the nondebtor spouse is saved” the requirement of fully disclosing his or her financial condition because it is the debtor who is funding the plan. See Sigfrid, 161 B.R. at 222. The court also noted that “when a nondebtor spouse is funding the plan, the nondebtor, for all essential purposes, is acting as a Chapter 13 debtor but is escaping the disclosure requirements.” Id. This is especially true where the non-debtor spouse is jointly liable on debts that are being administered in the bankruptcy proceeding, because the nondebtor spouse gains the benefits of the discharge and the codebtor stay. Id. at n. 1. The majority of courts that have considered the issue have concluded that the nondebtor spouse does not in fact escape the disclosure requirements. Though there is no reported Eighth Circuit case deciding this question, “bankruptcy courts in other jurisdictions have consistently interpreted § 1325 to require the consideration of a non-debtor spouse’s income in determining the debtor’s disposable income and, ultimately, the debtor’s good faith in proposing the Chapter 13 plan.” See In re Bottorff, 232 B.R. 171, 173 (Bankr.W.D.Mo.1999) (citations omitted); see also In re McNichols, 249 B.R. 160," }, { "docid": "6800243", "title": "", "text": "which is received by the debtor and which is not reasonably necessary to be expended for the maintenance or support of the debtor or a dependent of the debtor.....” Although 11 U.S.C. § 1325(b)(2) only refers to “debtor,” it has been held that the income and expenses of the non-filing spouse are to be considered when determining whether all of a debtor’s disposable income is being applied to the Plan. In re McNichols, 249 B.R. 160, 169 (Bankr.N.D.Ill.2000). In addition, the Plan must “first use all of the non-filing spouse’s income to pay expenses.....” Id. 11 U.S.C. § 1322(a)(2) Requirements Are Met In this case, the joint unsecured total U.S. and Illinois tax debt of $59,339.09 (not including penalties) is an unsecured priority claim under 11 U.S.C. § 507(a)(8). Thus, the Plan must provide as it does for the full payment of the joint tax debt of the Debtor and her husband. In his Objection to Confirmation and Motion to Dismiss, the Chapter 13 Trustee argues that the non-filing spouse is thereby receiving a great benefit through this Plan at the expense of other unsecured creditors. While this may be true, it is not a legal basis to deny confirmation. The Debtor’s Plan meets the requirements of 11 U.S.C. § 1322(a)(2) to the extent it provides for full payment of the total joint tax debt. 11 U.S.C. § 1325(b)(1)(B) Requirements Are Not Met However, the Debtor’s Plan does not meet the disposable income requirements of 11 U.S.C. § 1325(b)(1)(B). The Debtor here agrees that the disposable income test requires an analysis of the family budget, including the income and expenses of the nondebtor spouse. See McNichols, 249 B.R. at 169 and cases cited. Although this case is an individual filing, the non-Debtor’s income and expenses must therefore be taken into consideration. The nondebtor spouse’s income is included in the § 1325(b) analysis not because it is treated as statutorily defined income to the debtor but rather because consideration of that resource is necessary to an accurate assessment of the debtor’s budget. In re Carter, 205 B.R. 733 at 736 (Bankr.E.D.Pa.1996)." }, { "docid": "8400363", "title": "", "text": "170 (Bankr.N.D.Ill.2000); In re Ehret, 238 B.R. 85, 88 (Bankr.D.N.J.1999); In re Saunders, 60 B.R. 187 (Bankr.N.D.Ohio 1986). One recent opinion remarked that a payment made by a nondebtor spouse is “in essence, a payment from the debtor,” especially where the debtor and nondebtor spouse reside together and pool their incomes. See In re Greco, 246 B.R. 226, 232 (Bankr.E.D.Pa.2000) (prefiling attorney fees paid by nondebtor spouse to debtor’s bankruptcy lawyer). In that decision, the court dismissed the notion that the bankruptcy court has no jurisdiction over a nondebtor spouse’s income and expenses as “a decidedly minority viewpoint that a nondebtor spouse’s income and expenses need not be considered in a disposable income calculation in a Chapter 13 case.” Id.; but see In re Harmon, 118 B.R. 68, 69 (Bankr.E.D.Mich.1990). To apply the provisions of § 1325 to a married debtor filing individually, most courts “base their calculations of the debt- or’s disposable income on the debtor’s family budget, including the income and expenses of the nondebtor spouse.” See In re Carter, 205 B.R. 733, 735 (Bankr.E.D.Pa.1996) (citations omitted); see also In re Kern, 40 B.R. 26, 28-29 (Bankr.S.D.N.Y.1984). “Consideration of the non-debtor spouse’s income is seen as necessary because a portion of that spouse’s income is likely to be applied to the basic needs of the debtor, potentially increasing the share of the debtor’s own income that is not reasonably necessary for support.” See Carter, 205 B.R. at 736. The nondebt- or spouse’s income is part of the § 1325 analysis because it is a “resource” the consideration of which “is necessary to an accurate assessment of the debtor’s budget.” Id. at n. 3. “This view recognizes the reality that married couples live as a unit, pooling their income and expenses.” Id. at 736. Unless the parties to a marriage actually maintain separate finances historically or by an agreement between them, usually a “nonfiling spouse’s income is available to defray the debtor’s reasonably necessary expenses, thus freeing a larger portion of the debtor’s separate income for satisfaction of unsecured claims.” See In re Soper, 152 B.R. 985, 988 (Bankr.D.Kan.1993)." }, { "docid": "17780440", "title": "", "text": "court has examined the debtor’s financial circumstances by applying both tests. In re Florio, 187 B.R. 654, 657-58 (Bankr.W.D.Mo.1995) and yet other courts have embraced a test which requires examination of the totality of a debtor’s financial circumstances and which also appears to incorporate elements of the “disposable income” and “undue hardship” tests. In re Huddelston, 194 B.R. 681, 687-88 (Bankr.N.D.Ga.1996); Matter of Cleveland, 198 B.R. 394, 398 (Bankr.N.D.Ga.1996); In re Smither, 194 B.R. 102, 107-8 (Bankr.W.D.Ky.1996). In any event, as observed in In re Jodoin, 209 B.R. 132, 142 (B.A.P. 9th Cir.1997) the disposable income test is an “excellent starting point” for measuring a debtor’s ability to pay. In the context of confirmation of a Chapter 13 plan, most courts which have addresséd the issue have concluded that a non — debtor spouse’s income and expenses must be combined with the debtor’s income and expenses in order to determine the debtor’s disposable income which should be devoted tó a plan. In re Cardillo, 170 B.R. 490, 491 (Bankr.D.N.H.1994); Matter of Belt, 106 B.R. 553, 561 (Bankr.N.D.Ind.1989); Matter of Saunders, 60 B.R. 187, 188 (Bankr.N.D.Ohio 1986); In re Kern, 40 B.R. 26, 29 (Bankr.S.D.N.Y.1984). The court in Belt also observed that the non-filing spouse’s income has been considered by courts reviewing whether a debtor’s student loan should be discharged due to undue hardship, and when determining whether a petition should be dismissed for substantial abuse. 106 B.R. at 562. But see, In re Harmon, 118 B.R. 68, 69 (Bankr.E.D.Mich.1990) (finding that debtor and non-filing spouse had an arrangement to split living expenses equally, and therefore, the debtor’s net disposable income was properly calculated by deducting one-half of total family expenses from his after-tax income). The court was not able to find any reported ease which included the income of a live-in companion in the calculus of a debtor’s disposable income for plan payments. In applying § 523(a)(15)(A), most courts have held that a debtor’s new spouse’s finances should be considered as part of a determination of the debtor’s ability to pay. See Smither, 194 B.R. at 108; In re Adams," }, { "docid": "22947973", "title": "", "text": "with the income-based approach to consumer credit. S.Rep. No. 65, 98th Cong. 1st Sess. 20 (1983). Allowing debtors with exempt income to exclude it from the amount they are required to pay under a Chapter 13 plan would thwart the legislative intent that consumer lenders be able to look to the debtor’s future income as a basis for consumer loans. To hold otherwise would inhibit the extension, or increase the cost, of consumer credit, undermining the amendments. (b) Non-debtor Spouse’s Income The Debtor maintains that even if his social security and pension payments comprise disposable income, his non-debtor wife’s social security payments should not. He nonetheless includes her share of expenses as part of his overall living expenses. Such a proposal in effect suggests that the Debtor's creditors subsidize his wife’s living expenses — a result not contemplated by the statute. See In re Belt, 106 B.R. 553, 562 (Bkrtcy.N.D.Ind.1989). Most courts take into account the non-debt- or spouse’s income and expenses. See Lun-din, supra, § 5.32; see, e.g., Belt; Matter of Saunders, 60 B.R. 187 (Bkrtcy.N.D.Ohio 1986). Similarly, courts have included the non-filing spouse’s income when determining whether a case should be dismissed under § 707(b), Matter of Strong, 84 B.R. 541, 543 (Bkrtcy.N.D.Ind.1988), and whether a debtor’s student loan should be discharged due to undue hardship, In re Bagley, 4 B.R. 248, 249 (Bkrtcy.D.Ariz.1980). The Court finds that this non-debtor wife’s income also must be included. It would be unfair and unjust, in a joint household, to conclude otherwise. (c) Business Expenses The Creditor and the Trustee assert that the Debtor’s real estate development aspirations do not constitute a “business” under § 1325. Section 1325(b)(2)(B) excludes income of the debtor that is rea sonably necessary for business expenses, if the debtor is “engaged in business.” If the debtor is not engaged in business, the $410.00 per month that the Debtor has allocated for business expenses must be included in disposable income. “[T]he creditor has the initial burden of production on an objection to confirmation pursuant to section 1325(b). Once that burden is met, the ultimate burden of persuasion" }, { "docid": "23658744", "title": "", "text": "substantial abuse exists. An example of this tendency is found in the case of In re Bryant, 47 B.R. 21 (Bankr.W.D.N.C.1984). There debtor filed a Chapter 7 petition individually and listed monthly income for both himself and his non-debtor spouse totaling $3,420.00. Bryant, 47 B.R. at 24. In holding that a substantial abuse of Chapter 7 was present, the court considered the total family income and expenses as a matter of course. Bryant, 47 B.R. at 24-26. The importance accorded the income and expenses of a non-petitioning spouse in substantial abuse cases should be similar to the significance given this same factor in considering Chapter 13 plan confirmations and the undue hardship discharge of student loans. In Chapter 13 cases where a married debtor files a single petition, courts commonly consider the debtor’s income from all sources, including a non-debtor spouse, when assessing compliance with the plan confirmation requirements of 11 U.S.C. § 1325. In re Sellers, 33 B.R. 854, 857 (Bankr.D.Col.1983). Indeed, an accurate analysis of Chapter 13’s disposable income test (11 U.S.C. § 1325(b)) is impossible unless the income of a non-debtor spouse is included in the budget. Matter of Saunders, 60 B.R. 187 (Bankr.N.D.Ohio 1986). Similarly, various courts have included the non-filing spouse’s income when examining whether a debtor’s student loan should be discharged, due to undue hardship. In re Bagley, 4 B.R. 248, 249 (Bankr.D.Az.1980). In re Lezer, 21 B.R. 783, 789 (Bankr.N.D.N.Y.1982). In this court’s estimation, the circumstances surrounding a substantial abuse inquiry are analogous to those present in Chapter 13 plan confirmation and undue hardship situations. All three necessitate a determination of how much disposable income, after subtracting reasonable and necessary expenses, will be available to a given debtor. There is no justification for ignoring the impact of a non-petitioning spouse’s income on a debt- or’s financial situation. In re Kern, 40 B.R. 26 (Bankr.S.D.N.Y.1984). Accordingly, we conclude that the income of a non-debtor spouse must be taken into account in order to properly determine whether a case constitutes a substantial abuse of the provisions of Chapter 7. IV The foregoing resolution simplifies the" }, { "docid": "1869663", "title": "", "text": "a Chapter 13 Plan Confirmation and also to undue hardship situations. See also In re Bryant, 47 B.R. 21 (Bankr.W.D.N.C.1984). The court in Strong concluded that all three (3) of those situations “necessitate a determination of how much disposable income, after subtracting the reasonable and necessary expenses will be available to a given debtor. There is no justification for ignoring the impact of a non-petitioning spouse’s income on a debtor’s financial situation.” Strong at 543, (citing In re Kern, 40 B.R. 26 (Bankr.S.D.N.Y.1984)). The present case is a prime example of the importance of the nondebtor spouse’s income to the Debtor. In the schedule which Debtor originally filed, Debtor lists monthly income of Eight Hundred Dollars ($800.00) and monthly expenses for herself of One Thousand Nine Hundred Thirty-four Dollars ($1,934.00). Debtor stated that her nondebt- or spouse contributes to the expenses. Because of nondebtor spouse’s contribution of income towards the expenses, the Debtor can afford a much better lifestyle than without such income. The nondebtor spouse’s income allows Debtor to live in a house with mortgage payments that exceed half her monthly income. Debtor and her husband also have a boat, something which Debtor probably could not afford on Eight Hundred Dollars ($800.00) per month. But most importantly, it is because of the nondebtor spouse’s income that Debtor has stated that she will reaffirm all her debts other than the debt to Fidelity. Debtor has taken into consideration her nondebtor spouse’s income in determining what debts she can afford to reaffirm. This Court, in looking at the nondebtor spouse’s income, is simply using the same standard that Debtor has used to assess her ability to pay. This Court finds that Debtor has the ability to pay the debt to Fidelity Guaranteed Mortgage in twenty (20) months if her husband contributes to the payments. If Debtor does choose to pay off the debt in as little as twenty (20) months, she can maintain her current standard of living, even retaining the boat which the Trustee in his Motion for Dismissal considered to be a luxury that Debtor could do without. Therefore," }, { "docid": "22203237", "title": "", "text": "is $2,994.00 plus 12% interest from November 24, 1994. There are no specific repayment terms on this obligation other than the original award by the state court. Next, the Court must calculate the Debtor’s income and post-petition property. In determining the amount of income which a Debtor earns for purposes of the 11 U.S.C. § 523(a)(15) tests, courts should look to the well-developed caselaw under 11 U.S.C. § 1325(b)(2) which governs the determination of what constitutes “disposable income” for the purposes of confirming a Chapter 13 plan. The wording of the two sections of the Bankruptcy Code are virtually identical and courts which have considered this question of determining a debtor’s income for purposes of Section 523(a)(15) have adopted the “disposable income” test case law of 11 U.S.C. § 1325(b). See In re Hesson, 190 B.R. at 236. This Court finds that the Debtor’s current annual gross income is approximately $80,-000.00 including his annual bonus. This works out to an average gross monthly income of $6,667.00 with an approximate monthly take home pay of $4,000.00, adopting a 40% tax rate to be used in determining the Debtor’s net take home pay. This amount seems to be a reasonable approximation of the income which the debtor can expect to earn in the near future given the evidence which was presented to the court. However, the Debtor is currently married and the combined annual gross income of the Debtor and his present spouse is $122,000.00. This fact is important as we hold that where a debtor has remarried prior to the trial of the 11 U.S.C. § 523(a)(15) action, his or her spouse’s income should be included in the calculation of the debtor’s disposable income. The majority of Chapter 13 cases discussing the concept of disposable income have reached the same conclusion, as well as the sole 11 U.S.C. § 523(a)(15) case addressing with that issue. See In re Comisky, 183 B.R. 883 (Bkrtcy.N.D.Cal.1995) (11 U.S.C. § 523(a)(15) case); Matter of Belt, 106 B.R. 553 (Bkrtcy.N.D.Ind.1989); In re Strong, 84 B.R. 541 (Bkrtcy.N.D.Ind.1988); In re Kern, 40 B.R. 26 (Bkrtcy.S.D.N.Y.1984). In the" }, { "docid": "4605689", "title": "", "text": "“substantial abuse” of Chapter 7. In re Strong, 84 B.R. 541, 543 (Bankr.N.D.Ind.1988); see In re Bryant, 47 B.R. 21, 24-26 (Bankr.W.D.N.C.1984). Moreover, the non-debtor spouse’s income is factored in when determining whether to discharge a debtor spouse’s student loan due to “undue hardship” under 11 U.S.C. § 523(a)(8)(B). See Lezer v. New York State Higher Educ. Serv. Cory. (In re Lezer), 21 B.R. 783, 789 (Bankr.N.D.N.Y.1982); Bagley v. Connecticut Student Loan Found. (In re Bagley), 4 B.R. 248, 249 (Bankr.D.Ariz.1980). There is no justification for disregarding the impact of a non-debtor spouse’s income and assets on a debtor’s financial situation. In re Strong, supra, 84 B.R. at 543. Consideration of the non-debtor spouse’s income and assets in the basic needs analysis is a necessary counterbalance to the potential for inequity created by the Bankruptcy Code fiction that a non-debtor spouse is a dependent of the debtor spouse regardless of actual dependency. Failure to take into account the non-debtor spouse’s income and assets along with that spouse’s expenses would effectively place a burden upon debtor’s creditors to subsidize some, if not all, of the spouse’s daily living expenses, a result not intended by the Code. In re Kern, 40 B.R. 26, 29 (Bankr.S.D.N.Y.1984); In re Saunders, supra, 60 B.R. at 188. Moreover, ignoring the non-debtor spouse’s income and assets creates an opportunity for abuse by an astute potential debtor in the form of a transfer of assets and streams of income into the name of the non-debtor spouse prior to and in contemplation of filing the petition absent, of course, some remedial statutory provision. Cf. 26 U.S.C. § 2035 (adjustment in value of decedent’s estate for gifts made within three years of death). Without inclusion of the income and assets of the non-debtor spouse in the basic needs analysis, the debtor would receive not only a fresh start, but also an undeserved windfall. While it would be unquestionably defensible to include all of a non-debtor spouse’s assets and income in the computation of basic needs, I am mindful of according a liberal construction of the exemption in favor of the" }, { "docid": "3312437", "title": "", "text": "month toward the support of her adult son, $663.00 per month toward her unspecified insurance, and $800.00 towards a step grandson’s daycare. In fact, her individual expenses, which total $4,522.00 exceed her monthly net income by $859.00, leaving her with nothing to contribute toward the parties’ joint expenses, including rent, utilities, food, clothing, transportation or medical and dental expenses. Consequently, I find that the Debtor is paying all of the parties’ day to day living expenses, with his wife contributing nothing from her earnings toward their joint expenses. I must, therefore, determine whether, given these facts, the Debtor has the ability to fund a Chapter 13 plan. As noted, the test for determining whether a debtor has the ability to fund a Chapter 13 plan is identical to that used to determine whether the debtor is committing all of his disposable income to a proposed Chapter 13 plan. Disposable income is defined as “income which is received by the debtor and which is not reasonably necessary to be expended— (A) for the maintenance or support of the debtor or a dependent of the debtor ....” 11 U.S.C. § 1325(b)(2)(A). The Ninth Circuit has not addressed the issue of whether the income of a non debt- or spouse should be included with that of the debtor for purposes of this test. However, most courts which have addressed the issue have, at a minimum, required the consideration of the non debtor spouse’s income, see, e.g., In re Engskow, 247 B.R. 314 (Bankr.M.D.Fla.2000); In re Cardillo, 170 B.R. 490 (Bankr.D.N.H.1994); In re Bottorff, 232 B.R. 171 (Bankr.W.D.Mo. 1999) while others have required that the income of the non debtor spouse be included with that of the debtor. In re Staub, 256 B.R. 567 (Bankr.M.D.Pa.2000), In re Carter, 205 B.R. 733 (Bankr.E.D.Pa.1996); In re Saunders, 60 B.R. 187 (Bankr. N.D.Ohio 1986). “Congress expressed no intention that 707(b) should effect a non-debtor or that any non-debtor should be required to tighten his or her belt in order to assist the debtor in paying debts.” In re Attanasio, 218 B.R. 180, 235 (Bankr.N.D.Ala. 1998). Nevertheless, “[i]n" }, { "docid": "8400365", "title": "", "text": "The Official Bankruptcy Forms also appear to contemplate the financial unity of marriage by requiring a married debtor in a Chapter 13 case to report the income and expenses of the debtor and the nonfil-ing spouse in Schedules I and J. See Saunders, 60 B.R. at 187; Carter, 205 B.R. at 736; Hanlin, 211 B.R. at 148; see also 2 K. Lundin, Chapter 13 Bankruptcy § 5.35 at 5-96-5-97. (2d ed.1997). One court that has concluded that the income and expenses “of the non-debtor spouse must be included in the debtor’s Chapter 13 Statement” agreed that “an accurate analysis” of disposable income under § 1325 “is impossible unless the income and expenses of the non-debtor spouse are included in the budget.” See In re Belt, 106 B.R. 553, 563 (Bankr.N.D.Ind.1989), citing In re Strong, 84 B.R. 541, 543 (Bankr.N.D.Ind.1988). The same court noted that in certain dischargeability proceedings, particularly undue hardship discharges of student loans, and in substantial abuse inquiries under § 707(b), courts have considered a nondebtor spouse’s income necessary information to make an accurate determination. Id. at 562 (citations omitted). The Court agrees that in order to make an accurate determination of the debtor’s disposable income, all of the nondebtor spouse’s income and expenses must be disclosed and must be included in the calculation. Mrs. Bottelberghe’s and the debtor’s testimony suggests that Mrs. Bottelberghe’s undisclosed additional income and expenses are of equal and modest amounts, such that consideration of the same would be in effect a wash and of no moment. However, the Court and only the Court must determine the reasonableness of all of the debtor’s necessary household expenses and whether the debtor’s budget therefore reflects his “best efforts” under § 1325(b)(1)(B). Neither the debtor nor the nondebtor spouse may “cherry pick the family expense budget and have luxury” or other unreasonable expenses “paid for through allocation to the non-debtor spouse so that the net effect is to maintain a luxurious lifestyle but only pay a small dividend to unsecured creditors.” See McNichols, 249 B.R. at 170. Necessity And Reasonableness Of Scheduled Expenses. The creditors’ objections to" }, { "docid": "20973377", "title": "", "text": "court must consider the income of a non-debtor spouse in calculating the debtor’s disposable income. See In re Williamson, 296 B.R. 760, 764 (Bankr.N.D.Ill.2003)(stating that the failure to consider the impact of the non-debtor spouse’s income would leave the debtor’s unsecured creditors to subsidize the spouse’s expenses); In re McNichols, 249 B.R. 160, 170 (Bankr.N.D.Ill.2000)(stating that the totality of the family’s income is appropriately considered in calculating a debtor’s disposable income); In re Ehret, 238 B.R. 85, 88 (Bankr.D.N.J.1999)(stating that the inclusion of a non-debtor spouse’s income is appropriate when determining a debtor’s disposable income); but see In re Nahat, 278 B.R. 108, 114 (Bankr.N.D.Tex.2002)(stating that section 1325(b)(2) defines disposable income as income “received by the debtor”). However, as stated previously, Congress amended the definition of disposable income, in section 1325(b)(2), to state that disposable income means “current monthly income received by the debtor ... less amounts reasonably necessary to be expended — (A)(i) for the maintenance or support of the debtor or a dependent of the debtor....” 11 U.S.C. § 1325(b)(2) (2005) (emphasis added). According to section 101(10A), “[t]he term ‘current monthly income’ — (A) means the average monthly income from all sources that the debtor receives (or in a joint case the debtor and the debtor’s spouse receive) without regard to whether such income is taxable ... derived during the 6-month period ending on — (i) the last day of the calendar month immediately preceding the date of the commencement of the case....” 11 U.S.C. § 101(10A) (2005) (emphasis added). The parenthetical stating that, in a joint case, a debtor’s current monthly income shall include the debtor’s spouse’s income suggests that, in a single case, the spouse’s income is not included in the debtor’s current monthly income; otherwise, the parenthetical would be superfluous. However, part (B) of section 101(10A), states that current monthly income also “includes any amount paid by any entity other than the debtor (or in a joint case the debtor and the debtor’s spouse), on a regular basis for the household expenses of the debtor or the debtor’s dependents (and in a joint case the" }, { "docid": "20973376", "title": "", "text": "determined according to the amounts set forth in section 707(b). If a debtor has current monthly income less than the state median family income, then the “amounts reasonably necessary to be expended” by the Debtor are determined under section 1325(b)(2)(A) and (B). In either scenario, the BAPCPA changes do not obviate the explicit requirement that a debtor use all of his or her disposable income to fund the plan. Therefore, the Debtor is required to contribute of all his - disposable income to his Chapter 13 plan. Alternatively, the Debtor argues that if he is required to contribute disposable income to his Chapter 13 plan, his non-filing spouse’s income should not be included in the disposable income calculation. As a result, the Debtor will not have any disposable income to contribute. Prior to BAPCPA, several courts addressed the issue of whether a debtor’s non-filing spouse’s income should be considered when determining whether all of a debtor’s disposable income is being applied to the debtor’s Chapter 13 plan. The majority of courts have held that the court must consider the income of a non-debtor spouse in calculating the debtor’s disposable income. See In re Williamson, 296 B.R. 760, 764 (Bankr.N.D.Ill.2003)(stating that the failure to consider the impact of the non-debtor spouse’s income would leave the debtor’s unsecured creditors to subsidize the spouse’s expenses); In re McNichols, 249 B.R. 160, 170 (Bankr.N.D.Ill.2000)(stating that the totality of the family’s income is appropriately considered in calculating a debtor’s disposable income); In re Ehret, 238 B.R. 85, 88 (Bankr.D.N.J.1999)(stating that the inclusion of a non-debtor spouse’s income is appropriate when determining a debtor’s disposable income); but see In re Nahat, 278 B.R. 108, 114 (Bankr.N.D.Tex.2002)(stating that section 1325(b)(2) defines disposable income as income “received by the debtor”). However, as stated previously, Congress amended the definition of disposable income, in section 1325(b)(2), to state that disposable income means “current monthly income received by the debtor ... less amounts reasonably necessary to be expended — (A)(i) for the maintenance or support of the debtor or a dependent of the debtor....” 11 U.S.C. § 1325(b)(2) (2005) (emphasis added)." }, { "docid": "8400364", "title": "", "text": "735 (Bankr.E.D.Pa.1996) (citations omitted); see also In re Kern, 40 B.R. 26, 28-29 (Bankr.S.D.N.Y.1984). “Consideration of the non-debtor spouse’s income is seen as necessary because a portion of that spouse’s income is likely to be applied to the basic needs of the debtor, potentially increasing the share of the debtor’s own income that is not reasonably necessary for support.” See Carter, 205 B.R. at 736. The nondebt- or spouse’s income is part of the § 1325 analysis because it is a “resource” the consideration of which “is necessary to an accurate assessment of the debtor’s budget.” Id. at n. 3. “This view recognizes the reality that married couples live as a unit, pooling their income and expenses.” Id. at 736. Unless the parties to a marriage actually maintain separate finances historically or by an agreement between them, usually a “nonfiling spouse’s income is available to defray the debtor’s reasonably necessary expenses, thus freeing a larger portion of the debtor’s separate income for satisfaction of unsecured claims.” See In re Soper, 152 B.R. 985, 988 (Bankr.D.Kan.1993). The Official Bankruptcy Forms also appear to contemplate the financial unity of marriage by requiring a married debtor in a Chapter 13 case to report the income and expenses of the debtor and the nonfil-ing spouse in Schedules I and J. See Saunders, 60 B.R. at 187; Carter, 205 B.R. at 736; Hanlin, 211 B.R. at 148; see also 2 K. Lundin, Chapter 13 Bankruptcy § 5.35 at 5-96-5-97. (2d ed.1997). One court that has concluded that the income and expenses “of the non-debtor spouse must be included in the debtor’s Chapter 13 Statement” agreed that “an accurate analysis” of disposable income under § 1325 “is impossible unless the income and expenses of the non-debtor spouse are included in the budget.” See In re Belt, 106 B.R. 553, 563 (Bankr.N.D.Ind.1989), citing In re Strong, 84 B.R. 541, 543 (Bankr.N.D.Ind.1988). The same court noted that in certain dischargeability proceedings, particularly undue hardship discharges of student loans, and in substantial abuse inquiries under § 707(b), courts have considered a nondebtor spouse’s income necessary information to make an" }, { "docid": "4605688", "title": "", "text": "her income and assets be considered in the computation of the basic needs of debtor and his dependents. Although no reported decision of which I am aware addresses the treatment of income and assets of a non-debtor spouse under § 522(d)(10)(E), the income of a non-debtor spouse has been considered along with the debtor spouse’s income in closely analogous circumstances under the Bankruptcy Code involving subsistence calculations. Perhaps most significantly, for purposes of the confirmation of a Chapter 13 plan under 11 U.S.C. § 1325(b)(1), compliance with the minimum requirements for funding the plan mandates inclusion of a non-debtor spouse’s income, as well as expenses, when determining the debtor spouse’s “disposable income.” In re Belt, 106 B.R. 553, 563 (Bankr.N.D.Ind.1989); see In re Rose, 101 B.R. 934, 943 (Bankr.S.D.Ohio 1989); see also In re Saunders, 60 B.R. 187, 188 (Bankr.N.D.Ohio 1986). Furthermore, income of the non-debtor spouse must be considered when analyzing under 11 U.S.C. § 707(b) whether dismissal of a case filed by a debtor spouse whose debts are primarily consumer-related would be a “substantial abuse” of Chapter 7. In re Strong, 84 B.R. 541, 543 (Bankr.N.D.Ind.1988); see In re Bryant, 47 B.R. 21, 24-26 (Bankr.W.D.N.C.1984). Moreover, the non-debtor spouse’s income is factored in when determining whether to discharge a debtor spouse’s student loan due to “undue hardship” under 11 U.S.C. § 523(a)(8)(B). See Lezer v. New York State Higher Educ. Serv. Cory. (In re Lezer), 21 B.R. 783, 789 (Bankr.N.D.N.Y.1982); Bagley v. Connecticut Student Loan Found. (In re Bagley), 4 B.R. 248, 249 (Bankr.D.Ariz.1980). There is no justification for disregarding the impact of a non-debtor spouse’s income and assets on a debtor’s financial situation. In re Strong, supra, 84 B.R. at 543. Consideration of the non-debtor spouse’s income and assets in the basic needs analysis is a necessary counterbalance to the potential for inequity created by the Bankruptcy Code fiction that a non-debtor spouse is a dependent of the debtor spouse regardless of actual dependency. Failure to take into account the non-debtor spouse’s income and assets along with that spouse’s expenses would effectively place a burden upon debtor’s" }, { "docid": "1869662", "title": "", "text": "provisions of this chapter. There shall be a presumption in favor granting the relief requested by the debtor. DISCUSSION This is a core proceeding pursuant to 28 U.S.C. § 157(b)(0). This case presents the primary issue of whether granting relief to this Debtor would be a substantial abuse of the provisions of Chapter 7, thus requiring dismissal pursuant to 11 U.S.C. § 707(b). However, in order to resolve this issue, another issue must be addressed first. The secondary issue is whether the Court should consider the income of a nondebtor spouse when making its inquiry and determination. This Court, in In re Deandria Smith, 157 B.R. 348 (1993), and other Bankruptcy courts, have held that the income of a non-debtor spouse must be taken into account in an inquiry as to whether a ease constitutes a substantial abuse under the provisions of Chapter 7 of the Bankruptcy Code. In the Deandria Smith case this Court relied on Matter of Strong, 84 B.R. 541 (Bankr. N.D.Ind.1988), in which the court compared a substantial abuse inquiry to a Chapter 13 Plan Confirmation and also to undue hardship situations. See also In re Bryant, 47 B.R. 21 (Bankr.W.D.N.C.1984). The court in Strong concluded that all three (3) of those situations “necessitate a determination of how much disposable income, after subtracting the reasonable and necessary expenses will be available to a given debtor. There is no justification for ignoring the impact of a non-petitioning spouse’s income on a debtor’s financial situation.” Strong at 543, (citing In re Kern, 40 B.R. 26 (Bankr.S.D.N.Y.1984)). The present case is a prime example of the importance of the nondebtor spouse’s income to the Debtor. In the schedule which Debtor originally filed, Debtor lists monthly income of Eight Hundred Dollars ($800.00) and monthly expenses for herself of One Thousand Nine Hundred Thirty-four Dollars ($1,934.00). Debtor stated that her nondebt- or spouse contributes to the expenses. Because of nondebtor spouse’s contribution of income towards the expenses, the Debtor can afford a much better lifestyle than without such income. The nondebtor spouse’s income allows Debtor to live in a house with" }, { "docid": "17780441", "title": "", "text": "561 (Bankr.N.D.Ind.1989); Matter of Saunders, 60 B.R. 187, 188 (Bankr.N.D.Ohio 1986); In re Kern, 40 B.R. 26, 29 (Bankr.S.D.N.Y.1984). The court in Belt also observed that the non-filing spouse’s income has been considered by courts reviewing whether a debtor’s student loan should be discharged due to undue hardship, and when determining whether a petition should be dismissed for substantial abuse. 106 B.R. at 562. But see, In re Harmon, 118 B.R. 68, 69 (Bankr.E.D.Mich.1990) (finding that debtor and non-filing spouse had an arrangement to split living expenses equally, and therefore, the debtor’s net disposable income was properly calculated by deducting one-half of total family expenses from his after-tax income). The court was not able to find any reported ease which included the income of a live-in companion in the calculus of a debtor’s disposable income for plan payments. In applying § 523(a)(15)(A), most courts have held that a debtor’s new spouse’s finances should be considered as part of a determination of the debtor’s ability to pay. See Smither, 194 B.R. at 108; In re Adams, 200 B.R. 630, 633-34 (N.D.Ill.1996); In re Hill, 184 B.R. 750, 755 (Bankr.N.D.Ill.1995). Some courts have extended this analysis to include consideration of a live-in companion’s income. See In re Cleveland, 198 B.R. 394, 398 (Bankr.N.D.Ga.1996) (holding that when supplemental income from a live-in companion alters the debtor’s financial situation, the court must factor the companion’s income into § 523(a)(15)(A)’s “ability to pay” test); Koons, 206 B.R. at 773 (holding that all of the income of, a debtor’s immediate household is relevant when determining the debt- or’s ability to pay). After noting that § 523(a)(15)(A) refers to those obligations that the debtor cannot satisfy “from income or property of the debtor not reasonably necessary to be expended for the maintenance or support,” the Cleveland court reasoned that the inclusion of the “reasonably necessary” qualifier necessitates a two-part inquiry: 1) examination of debtor’s income producing abilities; and 2) inspection of the extent to which that in come is necessary for the support of debtor and her or his dependents. See Cleveland, 198 B.R. at 399. The" }, { "docid": "17114233", "title": "", "text": "is defined as that amount of the debtor’s income which is not reasonably necessary to be expended for maintenance and support of the debtor or the debtor’s dependants. 11 U.S.C. § 1325(b)(2)(A). The debtor in this case does not have a regular income to fund a Chapter 13 plan and his prospects for employment in the future are minimal because of his conviction. However, the U.S. Trustee argues that the debtor’s wife’s income should be substituted for the debtor’s to create the necessary income to fund a plan. The method for calculating disposable income for purposes of 11 U.S.C. § 707(b) boils down to a fairly simple formula. You calculate the debtor’s gross income (I); subtract such things as federal and state withholding taxes and FICA (W); then subtract the necessary expenses for the maintenance or support of the debtor or the debtor’s dependants (E). The result is disposable income (DI). For the debtor, I = 0, W = 0, E = 8,390.37. The resulting disposable income equals - 8,390.37. In cases in which the debtor is married and the spouse has not filed bankruptcy, it is widely accepted that the nondebtor spouse’s income should be considered in determining the debtor’s disposable income. In all these cases however, both the debtor and the nondebtor spouse have income. The debtor in this case has no income to contribute. The cases cited differ in how they consider the nondebtor spouse’s income. In In re Berndt, the court indicated that the non-debtor spouse’s income should not be made liable for debts incurred by the debt- or. The court stated that the nondebtor spouse’s income is “simply being considered in determining whether the debtor himself has available discretionary income by virtue of the fact that he and the non-debtor spouse share a joint household.” In re Berndt, 127 B.R. at 225 (emphasis added). The court in In re Reese took the same approach by considering the effect the nondebtor spouse’s percentage contribution to the household reduces the debt- or’s expenses. In re Reese, 236 B.R. at 376. In terms of the formula, the spouse’s" }, { "docid": "23658745", "title": "", "text": "1325(b)) is impossible unless the income of a non-debtor spouse is included in the budget. Matter of Saunders, 60 B.R. 187 (Bankr.N.D.Ohio 1986). Similarly, various courts have included the non-filing spouse’s income when examining whether a debtor’s student loan should be discharged, due to undue hardship. In re Bagley, 4 B.R. 248, 249 (Bankr.D.Az.1980). In re Lezer, 21 B.R. 783, 789 (Bankr.N.D.N.Y.1982). In this court’s estimation, the circumstances surrounding a substantial abuse inquiry are analogous to those present in Chapter 13 plan confirmation and undue hardship situations. All three necessitate a determination of how much disposable income, after subtracting reasonable and necessary expenses, will be available to a given debtor. There is no justification for ignoring the impact of a non-petitioning spouse’s income on a debt- or’s financial situation. In re Kern, 40 B.R. 26 (Bankr.S.D.N.Y.1984). Accordingly, we conclude that the income of a non-debtor spouse must be taken into account in order to properly determine whether a case constitutes a substantial abuse of the provisions of Chapter 7. IV The foregoing resolution simplifies the task of deciding whether substantial abuse exists in the present case. In relevant part, 11 U.S.C. § 707(b) provides: (b) After notice and hearing, the court, on its own motion or on a motion by the U.S. Trustee, ... may dismiss a case filed by an individual debtor under this Chapter whose debts are primarily consumer debts if it finds that the granting of relief would be a substantial abuse of the provisions of this Chapter. There shall be presumption in favor of granting the relief requested by the debtor. This subsection was added to Section 707 by the Bankruptcy Amendments and Federal Judgeship Act of 1984 (BAFJA). The addition of this provision was largely due to Congress’s concerns that Chapter 7 relief was increasingly being sought by debtors with the ability to repay a substantial portion of their debts. In re Grant, 51 B.R. 385, 389-392 (Bankr.N.D.Ohio 1985). See 130 Cong.Rec. H1810-12 (daily ed. March 21, 1984). Thus, it was designed to provide the bankruptcy court with the means to deny Chapter 7 relief" } ]

[ { "docid": "5434617", "title": "", "text": "Permits. The purpose of the Taylor Grazing Act is to stabilize the livestock industry and to permit the use of the public range according to the needs and the qualifications of the livestock operators with base holdings. To carry out this purpose, the Act and the Range Code authorized by the Act contemplate that the officials, with the advice of an advisory board composed of permit holders within the district, shall exercise their judgment and discretion in granting permits, and in determining the extent to which lands within the district shall be grazed. A livestock owner does not have the right to take matters into his own hands and graze public lands without a permit. If there is dissatisfaction with the action of the officials in the granting of permits, or as to other decisions, the livestock owner’s remedy is by appeal as provided for in the Act and the Code (43 C.F.R. 161.9). Oman v. United States, 10 Cir., 179 F.2d 738. It seems clear to us that the grant ing or rejection of the applications here was within the discretionary function of the range officials as contemplated by Sec. 2680 (a) of the Federal Tort Claims Act. Sickman v. United States, 7 Cir., 184 F.2d 616, certiorari denied 341 U.S. 939, 71 S.Ct. 999, 95 L.Ed. 1366; Coates v. United States, 8 Cir., 181 F.2d 816, 199 A.L.R.2d 840; Cromelin v. United States, 5 Cir., 177 F.2d 275, certiorari denied 339 U.S. 944, 70 S.Ct. 790, 94 L.Ed. 1359; Kendrick v. United States, D.C.N.D.Ala., 82 F.Supp. 430. We do not agree that the refusal to grant the permits amounted to an unlawful coercion of the plaintiff which required him to execute an exchange of use agreement sufficient to sustain this action, but even if it did the case should not be reversed. On conflicting testimony, the trial court held that there was no such coercion and that the exchange use agreement was entered into voluntarily by the plaintiff. The same is true as to the claim that the Range Manager permitted the lands of the plaintiff to be" } ]

[ { "docid": "3184032", "title": "", "text": "The defendant challenges the jurisdiction of the court on three grounds: 1) The suit is barred by 28 U.S.C. § 2680(h) which bars “[a]ny claim arising out of assault [or] battery.” 2) The suit is barred by that part of 28 U.S.C. § 2680(a) which bars “[a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation.” 3) The suit is barred by that part of 28 U.S.C. § 2680(a) which bars any claim “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty.” 1. THE SECTION 2680(h) DEFENSE The government urges that because the acts here complained of arose out of an assault and battery, the instant case falls under the exception to the Federal Torts Claims Act stated in 28 U.S.C. § 2680(h). In support of this position, it cites a host of cases. In each one, however, the assault and/or battery inflicted upon the complaining party came at the hand of a government employee or his agent: United States v. Hambleton, 185 F.2d 564, 23 A.L.R.2d 568 (9 Cir. 1950) (mental suffering resulting from interrogation by sergeant from Army Criminal Investigation Division); Lewis v. United States, 194 F.2d 689 (3 Cir. 1951) (injury inflicted by army sentry on duty when plaintiff failed to obey orders to halt at gate); Stepp v. United States, 207 F.2d 909 (4 Cir. 1953), cert. denied 347 U.S. 933, 74 S.Ct. 627, 98 L.Ed. 1084 (1954) (civilian seaman shot by army guard on duty at dock upon refusal of seaman to stop for search); Jones v. United States, 249 F.2d 864 (7 Cir. 1957) (injury caused by heavy labor and inadequate medical attention while federal prisoner) ; Alaniz v. United States, 257 F.2d 108 (10 Cir. 1958) (shooting by F. B.I.-appointed agent [a deputy sheriff] while agent was seeking to apprehend thief); Hall v. United States, 274 F.2d 69 (10 Cir. 1959) (negligent performance of tests by Department of Agriculture inspectors which resulted in plaintiff selling cattle at a price" }, { "docid": "20969072", "title": "", "text": "OYER THE SUBJECT MATTER: THE DISCRETIONARY FUNCTION EXCEPTION. Jurisdiction in this matter is based on 28 U.S.C. § 1346(b), and the Tort Claims Act, 28 U.S.C. § 2671 et seq., which provides that the federal courts shall have jurisdiction of cases against the government for the negligent acts or omissions of its agents and employees. The government contends that this case falls within the exception to the Tort Claims Act for conduct involving the exercise of a discretionary function. The relevant code section, 28 U.S.C. § 2680(a), provides in pertinent part, as follows: “The provisions of this chapter and section 1346(b) of this title shall not apply to— “(a) Any claim * * * based upon the exei'cise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” In defining the meaning of “discretionary function”, the Supreme Court in Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953), adopted a distinction between decisions made on the “planning level” and those made on the “operations level”. Although portions of the Dalehite opinion are no longer controlling, see Rayonier, Inc. v. United States, 352 U.S. 315, 319, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957), the planning level-operations level distinction has been adopted by several circuits. United States v. Hunsucker, 314 F.2d 98 (9th Cir., 1962); American Exchange Bank of Madison, Wisconsin v. United States, 257 F.2d 938, 78 A.L.R.2d 879 (7th Cir., 1958) ; Eastern Air Lines v. Union Trust Company, 95 U.S.App.D.C. 189, 221 F.2d 62 (1955). In a strict sense, every action of a government employee, except perhaps a conditioned reflex action, involves the use of some degree of discretion. The planning level notion refers to decisions involving questions of policy, that is, the evaluation of factors such as the financial, political, economic, and social effects pf a given plan or policy. For example, courts have found that a decision to reactivate an Air Force Base, United States v. Hunsucker," }, { "docid": "5408729", "title": "", "text": "The question to be resolved here, broadly stated, is whether the Federal Tort Claims Act Authorizes suit against the United States for damages caused by the negligent performance, conduct, discharge or execution of nuclear tests or experiments by the Government. Because the issue is raised by motion to dismiss the complaint for its alleged failure to state a claim on which relief can be granted, we are not concerned with the niceties of pleading. Only if it appears that plaintiff would not be entitled to relief under any set of facts which could be proved in support of the allegations of the complaint, should the motion be granted. Thomas v. Pick Hotels Corporation, 10 Cir., 1955, 224 F.2d 664; Clyde v. Broderick, 10 Cir., 1944, 144 F.2d 348; United States ex rel. Peters v. Carson, D.C.W.D.Pa.1954, 126 F.Supp. 137. The Tort Claims Act, including its exceptions, is too well known and has been too frequently construed to justify here a detailed review of its terms or legislative history, or a general survey of the cases interpreting it. See Annotation 1 A.L.R.2d 222. The principle controlling in this case is that there can be no recovery against the Government on any claim based upon the exercise or performance, or the failure to exercise or perform, a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved was abused. 28 U.S.C.A. § 2680(a); annotation 19 A.L.R.2d 845. Where the acts or omissions relied upon are those directly involving the exercise of discretion, the Courts have not hesitated to deny recovery, whether the discretion was regarded as properly, improperly or negligently exercised. Smart v. United States, 10 Cir., 1953, 207 F.2d 841; Chournos v. United States, 10 Cir., 1951, 193 F.2d 321, certiorari denied 343 U.S. 977, 72 S.Ct. 1074, 96 L.Ed. 1369; Coates v. United States, 8 Cir., 1950, 181 F.2d 816, 19 A.L.R.2d 840; North v. United States, D.C.D.Utah, Cent.D., 1950, 94 F.Supp. 824, 19 A.L.R.2d 845. Where it is clear, as here, that the major, or overall," }, { "docid": "13949300", "title": "", "text": "the father’s action for consequential damages is brought properly; that none of the exceptions enumerated in 28 U.S. C.A. § 2680 exclude the claims of the plaintiffs; and that the United States, if a private person, would be liable to the plaintiffs, in accordance with the law of Kansas, where the act occurred. The reasons for these conclusions are set forth below. Judgment will be presented and entered in conformity with these findings and conclusions. This case is clearly not the usual type of action brought under the Federal Tort Claims Act, 28 U.S.C.A. § 2671, et seq. The defendant has argued that the court is without jurisdiction to adjudicate the claims asserted in the complaint, by reason of the provisions of Title 28, U.S.C.A. § 2680(a) which reads: “The provisions of this chapter and section 1346(b) of this title shall not apply to — (a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” As stated herein before, the defendant earlier brought a motion to dismiss the complaint, contending that this subsection applies. The motion was denied on June 19, 1950, the court stating in its memorandum that the facts in the case are squarely on all fours with those in a case decided by the United States Court of Appeals for the Fifth Circuit, Costley v. United States, 5 Cir., 181 F.2d 723. Congress has denied jurisdiction to the district courts for the adjudication (1) of any claim based upon an act or an omission of a government employee in the execution of a statute or regulation exercising due care, whether or not the statute or regulation is valid, and (2) of any claim based upon the performance or failure to perform ¡a" }, { "docid": "6305975", "title": "", "text": "upon the failure of the employees of the United States to issue permits, the United States has not consented to be sued for claims based upon “the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government”. For the protection of its Indian wards the United States, in dealing with Indian lands, should, when called upon to issue permits for the use of the lands, make all of the judgment determinations natural persons bargaining for the use of the lands would make. Congress did not intend that this exercise of judgment should subject the United States to liability. Any failure here were failures in the area of discretion and there is no liability. The judgment is affirmed. . 25 U.S.C. §§ 403, 415. . Mr. Justice Holmes, in Sage v. Hampe, 235 U.S. 99, 35 S.Ct. 94. 59 L.Ed. 147 (1914) characterized the language of Section 348, supra, in these words: “the universality of the invalidating language of the statute (‘any contract’) * * * ” Supra at 104, 35 S.Ct. at 95. . 28 U.S.C. § 2680. . See Chournos v. United States, 193 F.2d 321 (10 Cir. 1951), cert. den. 343 U.S. 977, 72 S.Ct. 1074, 96 L.Ed. 1369 (1952); United States v. Morrell, 331 F.2d 498 (10 Cir. 1964), cert. den. Chournos v. United States, 379 U.S. 879, 85 S.Ct. 146, 13 L.Ed.2d 86 (1964)." }, { "docid": "18228216", "title": "", "text": "may have been committed while serving that government, and in the belief that it was for its interest. In such cases, where it is proper for the nation to furnish a remedy, Congress has wisely reserved the matter for its own determination. It certainly has not conferred it on the Court of Claims.” Gibbons v. United States, supra, 75 U.S. (8 Wall.) at 275-76. [178 Ct. Cl. at 611, 372 F. 2d at 1011.] Again in Bulloch v. United States, 133 F. Supp. 885, 887 (D. Utah. 1955), the court stated the correct rule as follows: The Tort Claims Act, including its exceptions, is too well known and has been too frequently construed _ to justify here a detailed review of its terms or legislative history, or a general survey of the cases interpreting it. See Annotation 1 A.L.R. 2d 222. The principle controlling in this case is that there can be no recovery against the Government on any claim based upon the exercise or performance, or the failure to exercise or perform, a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved was abused. 28 U.S.C.A. § 2680(a); annotation 19 A.L.B. 2d 845. Where the acts or omissions relied upon are those directly involving the exercise of discretion, the Courts have not hesitated to deny recovery, whether the discretion was regarded as properly, improperly or negligently exercised. Smart v. United States, 10 Cir., 1953, 207 F. 2d 841; Chournos v. United States, 10 Cir., 1951, 193 F. 2d 321, certiorari denied 343 U.S. 977, 72 S. Ct. 1074, 96 L. Ed. 1369; Coates v. United States, 8 Cir., 1950, 181 F. 2d 816, 19 A.L.R. 2d 840; North v. United States, D.C.D. Utah, Cent. D., 1950, 94 F. Supp. 824, 19 A.L.R. 2d 845. * * * See also United States v. Morrell, 331 F. 2d 498 (10th Cir. 1964); and Morton v. United States, 228 F. 2d 431 (D.C. Cir. 1955). The foregoing authorities show beyond any question that plaintiff’s claim sounds in tort" }, { "docid": "18228461", "title": "", "text": "the refusal of the Maritime Commission to issue a permit for the plaintiff to sell ships, and which caused damages to be suffered, sounded in tort under Section 2680(a) and a suit for damages based thereon could not be maintained in this court. That was very similar to the situation here. The plaintiffs’ claim fits squarely within the terms of the statute and is, therefore, a non-suable tort claim by statutory definition. See Bulloch v. United States, 138 F. Supp. 885 (D. Utah 1955); 19 A.L.R. 2d 845; United States v. Morrell, 331 F. 2d 498 (10th Cir. 1964); and Morton v. United States, 228 F. 2d 431 (D.C. Cir. 1955). After oral argument in this case, counsel for the plaintiffs referred us to the recent decision of the United States District Court for the District of Columbia in the case of Watkins v. Washington, Civil Action No. 2977-69, decided July 8, 1971, in support of the plaintiffs’ case here. A reading of that case shows that it does not help the plaintiffs in the case before us. That case began as a racial discrimination complaint against the City of Washington, D.C. The Mayor dismissed the complaint after concluding that it did not call for any action on his part. Suit was then filed asking the court to set aside the Mayor’s action and “order appropriate relief.” It cannot be determined from reading the opinion whether the plaintiffs were suing for money or salaries. The suit was a class action wherein the plaintiffs were complaining that they as non-white employees of a city department had not been promoted properly for several years. The court on Ms own motion (as far as the opinion shows) awarded 14 of the plaintiffs the sum of $32,400, although he did not promote any of them. That case is not in point here because the City of Washington is a municipality like any other city and is not a part of the Government of the United States. See John McShain, Inc. v. United States, 179 Ct. Cl. 632, 375 F. 2d 829 (1967); Sweeney v." }, { "docid": "16988426", "title": "", "text": "this case the government has again advanced the exceptions claimed under 28 U.S.C.A. § 2680(a) and (h). This statute provides for freedom of governmental liability upon: “(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” (the “discretionary” exception) “(h) Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.” (the “assault” exception) Muniz, without specifically ruling on the applicability of either exception to a particular case, concluded that none of the exceptions (of 28 U.S.C.A. § 2680) precluded bringing suits such as this. United States v. Muniz, supra, 374 U.S. at 153, 83 S.Ct. 1850. The determination of either exception was left for the district courts on the facts of the particular claim. Undoubtedly the “discretionary” exception would apply to many claims, such as visitation rights, place of confinement, transfers, disciplinary forfeitures, and the like of the type constantly sought to be raised by habeas corpus. All of such matters are discretionary functions and duties under the overall supervision of the Attorney-General. Thus there is no hesitancy in sustaining such exceptions as to an administrative decision imposed on the claimant. See Morton v. United States, 97 U.S.App.D.C. 84, 228 F.2d 431. The point was inferentially raised at the Circuit level in Muniz when the court rejected the theory that the grant of authority over prisons to the Bureau of Prisons insulated the government from any liability in its execution. Muniz v. United States, 2 Cir., 305 F.2d 285(1). The exclusion is properly limited to the planning level and not the operational level; and to acts of a governmental and not a ministerial function. See Dalehite v. United States, 346" }, { "docid": "23569092", "title": "", "text": "184 N.Y.S.2d 161 (1959), aff’d, 11 A.D.2d 1047, 206 N.Y.S.2d 355 (1960); 1 Restatement of Torts § 35. Thus, this claim is barred by 28 U.S.C. § 2680(h). Klein v. United States, 268 F.2d 63 (2 Cir. 1959). In our view of this portion of the complaint we do not have to pass upon the government’s claim that the action is barred because the acts complained of were within the “discretionary function” provision of 28 U.S.C.A. § 2680(a). Cf. Morton v. United States, 97 U.S.App.D.C. 84, 228 F.2d 431 (1955), cert. denied, 350 U.S. 975, 76 S.Ct. 452, 100 L.Ed. 845 (1956). Appellant also charges mistreatment at the hands of employees of Bellevue Hospital, who were, of course, not federal personnel, while she was held there. Under ordinary principles of tort law, liability can be imposed for the acts of a third person in these circumstances only if the negligence is the “proximate cause” of the injury or, better put, only where such acts are among the foreseeable consequences of defendant’s conduct. 2 Harper & James, Torts, § 18.2 (1956). This principle is obviously applicable to suits under the Federal Tort Claims Act. United States v. Hutchins, 268 F.2d 69, 83 A.L.R.2d 447 (6 Cir. 1959); Voytas v. United States, 256 F.2d 786 (7 Cir. 1958). In the absence of an allegation that agents of the United States knew or should have known that injuries were likely to be inflicted on plaintiff while she was at Bellevue, the complaint in this regard is insufficient. The third portion of the complaint alleges failure of officers and employees of the Veterans Hospital of the Bronx to treat plaintiff for “recurrent fevers” and “fever of undetermined origin.” Instead, it is alleged, employees of the hospital “applied other psychological pressures to plaintiff.” The question here is whether this decision of the Veterans Hospital officials to examine for psychiatric symptoms rather than fever symptoms was a decision that involved the “discretionary function” exception of section 2680(a). We are convinced that each case in this area must stand on its own record. Recently we held: “There" }, { "docid": "23304946", "title": "", "text": "place where the act or omission occurred. * * * ” “§ 2674. Liability of United States “The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages. * * ” “§ 2680. Exceptions “The provisions of this chapter and section 1346(a) of this title shall not apply to— “(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” . Kendrick v. United States, D.C.N.D.Ala. 1949, 82 F.Supp. 430; Smith v. United States, D.C.Del., 113 F.Supp. 131; and Smart v. United States, 10 Cir., 1953, 207 F.2d 841. . Williams v. United States, 1955, 350 U.S. 857, 76 S.Ct. 100, reversing Williams v. United States, 9 Cir., 1954, 215 F.2d 800. Indian Towing Co. v. United States, 1955, 350 U.S. 61, 76 S.Ct. 122, reversing Indian Towing Co. v. United States, 5 Cir., 1954, 211 F.2d 886. United States v. Union Trust Co., 1955, 350 U.S. 907, 76 S.Ct. 192, affirming United States v. Union Trust Co. (and companion case, Eastern Air Lines, Inc., v. Union Trust Company), 1955, 95 U.S.App.D.C. 189, 221 F.2d 62, which in turn affirmed Union Trust Co. v. United States, D.C.D.C.1953, 118 F.Supp. 80. And cf. Dahlstrom v. United States, 8 Cir., 1956, 228 F.2d 819, reversing same case, D.C.Minn.1955, 129 F.Supp. 772. . United States v. Yellow Cab Co., 1950, 340 U.S. 543, 550, 71 S.Ct. 399, 404, 95 L.Ed. 523: “The proceedings emphasized the benefits to be derived from relieving Congress of the pressure of private claims. Recognizing such a clearly defined breadth" }, { "docid": "23569091", "title": "", "text": "to exercise or perform a discretionary function or duty on the part of a federal agency or an-employee of the Government, whether- or not the discretion involved be abused,”' or for those “arising out of assault, battery, false imprisonment, false arrest”' and other intentional torts. While the allegations in this-complaint concerning the visit to the Veterans Hospital in New York City charge-wanton and wilful “negligence” over and. over again, the actual facts pleaded make; out a claim for false imprisonment. It is, of course, the substance of the claim, and not the language used in stating it, that controls. Klein v. United States, 268 F.2d 63 (2 Cir. 1959); Miller Harness Co. v. United States, 241 F.2d 781 (2 Cir. 1957). Here the basis of the claim is the intentional detention of the plaintiff and the refusal to permit her to leave the Veterans Hospital before the agents from Bellevue arrived. False imprisonment means wrongful or unlawful detention. Schultz v. Greenwood Cemetery, 190 N.Y. 276, 83 N.E. 41 (1907); Guzy v. Guzy, 16 Misc.2d 975, 184 N.Y.S.2d 161 (1959), aff’d, 11 A.D.2d 1047, 206 N.Y.S.2d 355 (1960); 1 Restatement of Torts § 35. Thus, this claim is barred by 28 U.S.C. § 2680(h). Klein v. United States, 268 F.2d 63 (2 Cir. 1959). In our view of this portion of the complaint we do not have to pass upon the government’s claim that the action is barred because the acts complained of were within the “discretionary function” provision of 28 U.S.C.A. § 2680(a). Cf. Morton v. United States, 97 U.S.App.D.C. 84, 228 F.2d 431 (1955), cert. denied, 350 U.S. 975, 76 S.Ct. 452, 100 L.Ed. 845 (1956). Appellant also charges mistreatment at the hands of employees of Bellevue Hospital, who were, of course, not federal personnel, while she was held there. Under ordinary principles of tort law, liability can be imposed for the acts of a third person in these circumstances only if the negligence is the “proximate cause” of the injury or, better put, only where such acts are among the foreseeable consequences of defendant’s conduct. 2 Harper &" }, { "docid": "14816177", "title": "", "text": "315b. . 43 C.F.R. §§ 161.1-161.19. . 43 C.F.R. § 161.6(b). . 43 C.F.R. § 161.6(c). . 43 U.S.C. § 315o-1; 43 C.F.R. §§ 161.9, 161.13. . 43 U.S.C. § 315o-l(b) ; 43 C.F.R. § 161.-9(a). Applications by district advisors are first considered by the district manager without reference to the advisory board. . 43 C.F.R. § 161.10. . Much of Chournos’ land was acquired from the Southern Pacific Land Company. The situation is detailed in our opinion in Chournos v. United States, 10 Cir., 193 F.2d 321, 322, certiorari denied 343 U.S. 977, 72 S.Ct. 1074, 96 L.Ed. 1369. . Chournos v. United States, 10 Cir., 193 F.2d 321, 323, certiorari denied 343 U.S. 977, 72 S.Ct. 1074, 96 L.Ed. 1369. . 28 U.S.C. § 2680(a) provides that the Tort Claims Act does not apply to: “Any claim based * * * upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” . Plaintiffs claim that the federal officials managed the range. There is no evidence that the federal officials, by regulating water holes, placing salt, or doing any acts other than the grant of the permits, did anything which resulted in the trespasses asserted. . Chournos v. United States, 10 Cir., 193 F.2d 321, 323-324, certiorari denied 343 U.S. 977, 72 S.Ct. 1074, 96 L.Ed. 1369. . 43 C.F.R. § 161.8. The holders of exchange of use permits do not pay a fee. 43 C.F.R. § 161.6(c). . Brownlee v. Landers, Tex.Civ.App., 166 S.W.2d 734, 737. . Green v. Asher Coal Mining Co., Ky.Ct. App., 377 S.W.2d 68. See also 53 A.L.R. 327. . Judge Christensen said, 208 F.Supp. 85: “Accordingly, it is concluded that the agents of the government were guilty of no acts or omissions which could be considered to have negligently or intentionally caused damage to the plaintiff as asserted herein by him, except that they granted grazing permits to the James brothers and denied grazing permits" }, { "docid": "18228217", "title": "", "text": "function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved was abused. 28 U.S.C.A. § 2680(a); annotation 19 A.L.B. 2d 845. Where the acts or omissions relied upon are those directly involving the exercise of discretion, the Courts have not hesitated to deny recovery, whether the discretion was regarded as properly, improperly or negligently exercised. Smart v. United States, 10 Cir., 1953, 207 F. 2d 841; Chournos v. United States, 10 Cir., 1951, 193 F. 2d 321, certiorari denied 343 U.S. 977, 72 S. Ct. 1074, 96 L. Ed. 1369; Coates v. United States, 8 Cir., 1950, 181 F. 2d 816, 19 A.L.R. 2d 840; North v. United States, D.C.D. Utah, Cent. D., 1950, 94 F. Supp. 824, 19 A.L.R. 2d 845. * * * See also United States v. Morrell, 331 F. 2d 498 (10th Cir. 1964); and Morton v. United States, 228 F. 2d 431 (D.C. Cir. 1955). The foregoing authorities show beyond any question that plaintiff’s claim sounds in tort and her case should be dismissed for lack of jurisdiction. There would be no purpose served by transferring her case to a district court, as Section 2680 (a) bars her claim there as well as here. II The Facts Show There Was No Racial Discrimination Against The Plaintiff In This Case Badal discrimination means to discriminate against a member of one race of people or in favor of a member of a different race ¡because of race. That did not happen here. The plaintiff is a member of the Black race. She is a Negro. When she was denied a government job, her cousin, who was also a member of the Black race and a Negro, was appointed to the job. No other race of people was involved and no member of any other race was even considered, much less appointed to the job. If there was any discrimination, it was between two Negroes as individuals and without regard to race. All of this is shown in the letter from Mr. Dewberry, Regional Assistant Commissioner" }, { "docid": "18228460", "title": "", "text": "us jurisdiction of the plaintiffs’ case here. This is in line with the decision of the Supreme Court in United States v. King, supra, to the effect that this court does not have jurisdiction of a claim that is not “limited to actual presently due damages from the United States.” Finally, we do not have jurisdiction of this case because it sounds in tort. The plaintiffs’ claims are based on the alleged acts or omissions of government employees in the execution of a statute and regulation, and the failure of such employees to perform the discretionary function of promoting them because of racial discrimination. This is exactly the kind of tort action described in 28 U.S.'C. § 2680(a), known as the Tort Claims Act. The statute provides that the government cannot be sued in this kind of a case. Of course, this court has no tort jurisdiction. This kind of tort action cannot be brought even in a district court which has tort jurisdiction. We held in Eastport Steamship Corp. v. United States, supra, that the refusal of the Maritime Commission to issue a permit for the plaintiff to sell ships, and which caused damages to be suffered, sounded in tort under Section 2680(a) and a suit for damages based thereon could not be maintained in this court. That was very similar to the situation here. The plaintiffs’ claim fits squarely within the terms of the statute and is, therefore, a non-suable tort claim by statutory definition. See Bulloch v. United States, 138 F. Supp. 885 (D. Utah 1955); 19 A.L.R. 2d 845; United States v. Morrell, 331 F. 2d 498 (10th Cir. 1964); and Morton v. United States, 228 F. 2d 431 (D.C. Cir. 1955). After oral argument in this case, counsel for the plaintiffs referred us to the recent decision of the United States District Court for the District of Columbia in the case of Watkins v. Washington, Civil Action No. 2977-69, decided July 8, 1971, in support of the plaintiffs’ case here. A reading of that case shows that it does not help the plaintiffs in the" }, { "docid": "5408730", "title": "", "text": "interpreting it. See Annotation 1 A.L.R.2d 222. The principle controlling in this case is that there can be no recovery against the Government on any claim based upon the exercise or performance, or the failure to exercise or perform, a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved was abused. 28 U.S.C.A. § 2680(a); annotation 19 A.L.R.2d 845. Where the acts or omissions relied upon are those directly involving the exercise of discretion, the Courts have not hesitated to deny recovery, whether the discretion was regarded as properly, improperly or negligently exercised. Smart v. United States, 10 Cir., 1953, 207 F.2d 841; Chournos v. United States, 10 Cir., 1951, 193 F.2d 321, certiorari denied 343 U.S. 977, 72 S.Ct. 1074, 96 L.Ed. 1369; Coates v. United States, 8 Cir., 1950, 181 F.2d 816, 19 A.L.R.2d 840; North v. United States, D.C.D.Utah, Cent.D., 1950, 94 F.Supp. 824, 19 A.L.R.2d 845. Where it is clear, as here, that the major, or overall, activity involved the exercise of a discretionary function or duty on the part of a federal agency or its employees, but where the acts or omissions relied upon may be substantially independent of, or merely incidental to, any authorized discretionary performance, difficulty and conflict are indicated in the decisions. There is a line of authority which at least infers that any act or omission which arises within the scope and in the course of performance of a discretionary function of government, cannot furnish the basis of a valid claim under the Act. Williams v. United States, D.C.N.D.Fla., Marianna D., 1953, 115 F.Supp. 386, affirmed 5 Cir., 218 F.2d 473; Olson v. United States, D.C.D.N.D.N.W.D.1950, 93 F.Supp. 150; Thomas v. United States, D.C.W.D.Mo.St.Jo.D.1949, 81 F.Supp. 881. There is another line of authority which distinguishes between acts or omissions arising from the exercise or performance of a discretionary function and those occurring within the scope or area of the discretionary function but which themselves do not involve any proper element of discretion. Ford v. United States, 10" }, { "docid": "3000811", "title": "", "text": "has been set forth to indicate clearly the nature of the grounds upon which appellant would rest his claims against the Government. While the United States has waived its traditional immunity under certain circumstances, it has made explicitly certain that it is not to be subject to liability for claims which might be said .to be based upon the “exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” Appellant, after conviction of second degree murder, was sentenced on December 17, 1943, to the custody of the Attorney General for imprisonment for the period of fifteen years to life. This court affirmed on January 22, 1945. On April 19, 1948, he was ordered transferred to the Medical Center for federal prisoners at Springfield, Missouri. Provision for the care, as well as for the protection of persons convicted of offenses against the United States is a function of the Bureau of Prisons, and to the extent that the allegations charge improper exercise of discretionary functions of the officers or federal agencies involved, they come squarely within the exception quoted. Insofar as the complaint otherwise sounds in tort, its allegations are encompassed within the statutory exception of claims “arising out of assault, battery, false imprisonment, false arrest and the like. The complaint was properly dismissed for failure to state a cause of action for which relief may be granted, and the judgment of the District Court is affirmed. . See, e. g„ 28 U.S.C. § 1346(b) (1952). . 28 U.S.C. § 2680(a) (1952). . Morton v. United States, 1945, 79 U.S.App.D.C. 329, 147 F.2d 28 certiorari denied 1945, 324 U.S. 875, 65 S.Ct. 1015, 89 L.Ed. 1428. . 18 U.S.C. § 4042 (1952) ; and see 18 U.S.C. §§ 4081-4082 (1952). . Cf. Dalehite v. United States, 1953, 346 U.S. 15, 32, 73 S.Ct. 956, 97 L.Ed. 1427; Smart v. United States, D.C.W.D. Okl.1953, 111 F.Supp. 907, affirmed 10 Cir., 1953, 207 F.2d 841. . 28" }, { "docid": "11217029", "title": "", "text": "still be within (a) of the Exceptions for it necessarily would derive directly from the Internal Revenue Code and regulations. The legislative history of the Tort Claims Act clearly reveals that the revision of the discretionary exception as it had first appeared in the then bill was “designed to preclude * * * application of the act to a claim against a regulatory agency * * *. Since the language used * * * exempts from the act claims against federal agencies growing out of their regulatory activities it is not necessary expressly to except such agencies * * * by name * * *. ii is well settled that “discretionary function” embraces regulation. Dalehite v. United States, 1953, 346 U.S. 15, footnote 21, at pages 29, 34, 73 S.Ct. 956, 964, 97 L.Ed. 1427; Coates v. United States, 8 Cir., 1950, 181 F.2d 816, 818, 19 A.L.R.2d 840. The Dalehite case revolved around a Coast Guard regulation of shipboard loading of cargo. Other decisions where the discretionary exception of the Act was held to bar claims based upon governmental regulations are Schmidt v. United States, 7 Cir., 1952, 198 F.2d 32, certiorari denied 1952, 344 U.S. 896, 73 S.Ct. 276, 97 L.Ed. 693; Matveychuk v. United States, 2 Cir., 1952, 195 F.2d 613, certiorari denied 1952, 344 U.S. 845, 73 S.Ct. 61, 97 L.Ed. 657; Chournos v. United States, 10 Cir., 1951, 193 F.2d 321, certiorari denied 1952, 343 U.S. 977, 72 S.Ct. 1074, 96 L.Ed. 1369; Powell v. United States, 10 Cir., 1956, 233 F.2d 851. The Dalehite opinion governs this phase of the case. Under it the taxwise regulation of the Publicker plant was a discretionary function barred by Exception (a) from the operation of the Tort Claims Act. Those were the facts -presented by the complaints and by rea•'‘son’of them the defendant was entitled -tó'dismissal on that ground also. The judgments of the district court 'are affirmed. . 26 U.S.C. § 5305 reads in full: “The Secretary or his delegate shall issue regulations respecting the establishment, bonding, and operation of industrial alcohol plants, denaturing plants, and" }, { "docid": "14816176", "title": "", "text": "by the officials. The point is that abuse of discretion does not impose liability on the United States. All that the officials are shown to have done is to grant permits to persons whose cattle trespassed on the lands of the plaintiffs. These permits covered only federal land. The issuance of the permits was discretionary. Knowledge of conditions which will result from the performance of discretionary duty does not eliminate the discretionary character of the act done. The Tort Claims Act bars recovery from the United States for the discretionary acts of its agencies and employees regardless of whether the discretion be abused. Accordingly, these actions may not be maintained under the Tort Claims Act. In the circumstances it is not necessary to consider the issues relating to damages. The judgment in each case is reversed and each case is remanded with instructions to dismiss the complaint. . 28 U.S.C. §§ 1346(b) and 2671 et seq. . 43 U.S.C. § 315 et seq. . 28 U.S.C. § 2680(a). . 43 U.S.C. §§ 315, 315a, and 315b. . 43 C.F.R. §§ 161.1-161.19. . 43 C.F.R. § 161.6(b). . 43 C.F.R. § 161.6(c). . 43 U.S.C. § 315o-1; 43 C.F.R. §§ 161.9, 161.13. . 43 U.S.C. § 315o-l(b) ; 43 C.F.R. § 161.-9(a). Applications by district advisors are first considered by the district manager without reference to the advisory board. . 43 C.F.R. § 161.10. . Much of Chournos’ land was acquired from the Southern Pacific Land Company. The situation is detailed in our opinion in Chournos v. United States, 10 Cir., 193 F.2d 321, 322, certiorari denied 343 U.S. 977, 72 S.Ct. 1074, 96 L.Ed. 1369. . Chournos v. United States, 10 Cir., 193 F.2d 321, 323, certiorari denied 343 U.S. 977, 72 S.Ct. 1074, 96 L.Ed. 1369. . 28 U.S.C. § 2680(a) provides that the Tort Claims Act does not apply to: “Any claim based * * * upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or" }, { "docid": "11217028", "title": "", "text": "or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” Both of the charges arise squarely under the above exception. They are wholly based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of the government. The first deals with the locking of the building itself which was in accordance with regulations under Section 5305 of the Code and the second cites failure to promulgate further regulations for the protection of persons employed in the building. Appellants’ idea seems to be that at the trial of this case the complete Internal Revenue Code and regulations would be introduced or at least everything relevant to the supervision of the production and distribution of alcohol; all this in the hope that some regulation might be found which would be of assistance to their averment of government negligence. But even if some apparently helpful language were revealed it would still be within (a) of the Exceptions for it necessarily would derive directly from the Internal Revenue Code and regulations. The legislative history of the Tort Claims Act clearly reveals that the revision of the discretionary exception as it had first appeared in the then bill was “designed to preclude * * * application of the act to a claim against a regulatory agency * * *. Since the language used * * * exempts from the act claims against federal agencies growing out of their regulatory activities it is not necessary expressly to except such agencies * * * by name * * *. ii is well settled that “discretionary function” embraces regulation. Dalehite v. United States, 1953, 346 U.S. 15, footnote 21, at pages 29, 34, 73 S.Ct. 956, 964, 97 L.Ed. 1427; Coates v. United States, 8 Cir., 1950, 181 F.2d 816, 818, 19 A.L.R.2d 840. The Dalehite case revolved around a Coast Guard regulation of shipboard loading of cargo. Other decisions where the discretionary exception of the Act was held to" }, { "docid": "18228215", "title": "", "text": "Id. at 27-30. [178 Ct. Cl. at 610, 372 F. 2d at 1010.] ***** * * * If plaintiff had sued under the Tort Claims Act, its action would undoubtedly have fallen afoul of Section 2680(a), the “discretionary function” exception. If the suit in this court had asserted, without relying directly on Section 9 as the basis of the claim, a wrongful refusal by the Maritime Commission to approve the transfer, the petition would clearly have to be dismissed as a demand, founded in tort, for business damages due to misconduct. See Part II, infra. We cannot evade these barriers by incorporating into Section 9 something which is not there, either in terms or by fair implication — a mandate for compensation. Rather, we must follow the admonition of the Supreme Court, almost a century ago, “to be cautious that we do not permit the decisions of this court to become authority for the righting, in the Court of Claims, of all wrongs done to individuals by the officers of the General Government, though they may have been committed while serving that government, and in the belief that it was for its interest. In such cases, where it is proper for the nation to furnish a remedy, Congress has wisely reserved the matter for its own determination. It certainly has not conferred it on the Court of Claims.” Gibbons v. United States, supra, 75 U.S. (8 Wall.) at 275-76. [178 Ct. Cl. at 611, 372 F. 2d at 1011.] Again in Bulloch v. United States, 133 F. Supp. 885, 887 (D. Utah. 1955), the court stated the correct rule as follows: The Tort Claims Act, including its exceptions, is too well known and has been too frequently construed _ to justify here a detailed review of its terms or legislative history, or a general survey of the cases interpreting it. See Annotation 1 A.L.R. 2d 222. The principle controlling in this case is that there can be no recovery against the Government on any claim based upon the exercise or performance, or the failure to exercise or perform, a discretionary" } ]

[ { "docid": "7470873", "title": "", "text": "of Credit § 3.04[7], at 3-117 (1996). Unlike the issuer-beneficiary relationship, where special letter of credit rules apply, usual contractual principles govern the issuer-applicant relationship. See Dibrell Bros. Int’l S.A. v. Banca Nazionale Del Lavoro, 38 F.3d 1571, 1579 (11th Cir.1994) (“[T]he relationship between the issuer and customer is of a contractual nature governed by the reimbursement agreement rather than the letter of credit.”); see also Indu Craft, Inc. v. Bank of Baroda, 47 F.3d 490, 494-96 (2d Cir.1995); Dolan I, supra, ¶ 2.09[4], at 2-45. As one commentator has noted: When the applicant disputes the issuer’s conduct, that dispute generally involves the respective rights and duties of the two parties under the reimbursement agreement, an ordinary contract. In that context, the independence principle and Code rules fashioned for the letter of credit do not apply.... Those actions are normal contract actions governed by the law of contracts. Dolan I, supra, ¶2.09[7], at 2-60-2-61; see also Nutro Prods, Corp. v. NCNB Texas Nat’l Bank, 35 F.3d 1021, 1023 (5th Cir.1994). Here, plaintiffs’ action is an applicant-issuer suit based on the Application Agreement. A. Strict vs. Substantial Compliance To determine whether Citibank breached its contract and is liable for wrongful honor, we must look to the contract. The Application Agreement provides that “The Applicant will pay you [Citibank] on demand ... the amount of each draft or other request for payment ... drawn under the Credit.” (Compl., Ex. A ¶ 1) However, it provides also that: Any action, inaction or omission taken or suffered by you or by any of your correspondents under or in connection with the Credit or any relative drafts, documents or property, if in good faith and in conformity with foreign or U.S. laws, regulations or customs applicable thereto, shall be binding upon the Applicant and shall not place you or any of your correspondents under any resulting liability to the Applicant. (Compl., Ex. A ¶ 4) Under the Application Agreement, therefore, Citibank is in breach if it does not properly carry out its responsibilities as a letter of credit issuer in conformity with laws, regulations, or" } ]

[ { "docid": "13048984", "title": "", "text": "in this respect are greater than those of Franklin. We need not elaborate upon this line of reasoning, however, for this is not even a case in which a court, recognizing a letter of credit’s commercial purposes, would have refused to enjoin a letter of credit payment. Rather, it is a case — far stronger for Emery — in which a court injunction forbidding at least some of FNB’s payments would have been proper. A well recognized exception to the “no injunction” doctrine exists in cases of fraud. The Uniform Commercial Code states: Unless otherwise agreed, when documents appear on their face to comply with the terms of a credit but a required document ... is forged or fraudulent or there is fraud in the transaction (a) the issuer must honor the draft ... if honor is demanded by ... a holder in due course ...; and (b) in all other cases ... an issuer acting in good faith may honor the draft ... but a court ... may enjoin such honor. R.I.Gen.Laws § 6A-5-114(2) (emphasis added). The facts shown here bring this case within the exception that allows injunctions. First, a “required document” was “fraudulent.” The required certification included a statement that “demand for payment” had been made upon Emery. The record reveals that this statement was false. Given the “standby” status of the letter, the “demand” requirement was critical, for it was designed to allow Emery and Franklin a chance to explore differ enees prior to a call. Hospital Trust Bank now suggests that we read the “demand requirement” to mean only that Franklin must send an original invoice to Emery. Such a reading, however, would make the requirement’s insertion in the letter of credit redundant. Regardless, Hospital Trust Bank’s counsel conceded at trial that no “demand” was made. Second, there was “fraud in the transaction.” We have previously noted that this exception recognizes the unfairness of allowing a beneficiary to call a letter of credit under circumstances where the underlying contract plainly shows that he is not to do so. And, we have held that when a" }, { "docid": "12008358", "title": "", "text": "law controlling. Tennessee Code Annotated section 47-5-101 et seq. governs letters of credit and provides in relevant part: 47-5-109 Issuer’s obligation to its customer.— (1) An issuer’s obligation to its customer includes good faith and observance of any general banking usage but unless otherwise agreed does not include liability or responsibility (a) for performance of the underlying contract for sale or other .transaction between the customer and the beneficiary; or * * * * * * (2) An issuer must examine documents with care so as to ascertain that on their face they appear to comply with the terms of the credit but unless, otherwise agreed assumes no liability or responsibility for the genuineness, falsification or effect of any document which appears on such examination to be regular on its face. A pertinent comment to the above section provides: The purpose of the examination is to determine whether the documents appear regular on their face. The fact that the documents may be false or fraudulent or lacking in legal effect is not one for which the issuer is bound to examine. His duty is limited to apparent regularity on the face of the documents. The duties, privileges and rights of an issuer who has received documents which are regular on their face but are in fact improper because forged or fraudulent are dealt with in Section 5-114. Comments to Official Text 2. 45-5-111 Warranties on transfer and presentment.— (1) Unless otherwise agreed the beneficiary by transferring or presenting a documentary draft or demand for payment warrants to all interested parties that the necessary conditions of the credit have been complied with. This is in addition to any warranties arising under chapters 3, 4, 7 and 8, of this title. 47-5-114 Issuer’s duty and privilege to honor — Right to reimbursement.— (1) An issuer must honor a draft or demand for payment which complies with the terms of the relevant credit regardless of whether the goods or documents conform to the underlying contract for sale or other contract between the customer and the beneficiary. * * * (2) Unless otherwise agreed" }, { "docid": "12008359", "title": "", "text": "the issuer is bound to examine. His duty is limited to apparent regularity on the face of the documents. The duties, privileges and rights of an issuer who has received documents which are regular on their face but are in fact improper because forged or fraudulent are dealt with in Section 5-114. Comments to Official Text 2. 45-5-111 Warranties on transfer and presentment.— (1) Unless otherwise agreed the beneficiary by transferring or presenting a documentary draft or demand for payment warrants to all interested parties that the necessary conditions of the credit have been complied with. This is in addition to any warranties arising under chapters 3, 4, 7 and 8, of this title. 47-5-114 Issuer’s duty and privilege to honor — Right to reimbursement.— (1) An issuer must honor a draft or demand for payment which complies with the terms of the relevant credit regardless of whether the goods or documents conform to the underlying contract for sale or other contract between the customer and the beneficiary. * * * (2) Unless otherwise agreed when documents appear on their face to comply with the terms of a credit but a required document does not in fact conform to the warranties made on negotiation or transfer of a document of title (§ 47-7-507) or of a security (§ 47-8-306) or is forged or fraudulent or there is fraud in the transaction (a) the issuer must honor the draft or demand for payment if honor is demanded by a negotiating bank or other holder of the draft or demand which has taken the draft or demand under the credit and under circumstances which would make it a holder in due course (§ 47-3-302) and in an appropriate case would make it a person to whom a document of title has been duly negotiated (§ 47-7-502) or a bona fide purchaser of a security (§ 47-8-302); and (b) in all other cases as against its customer, an issuer acting in good faith may honor the draft or demand for payment despite notification from the customer of fraud, forgery or other defect not" }, { "docid": "3779697", "title": "", "text": "because of pending proceedings in Brazil. Banco has been advised by its Brazilian attorneys that if it honors the draft in contravention of the Brazilian injunction, it could lose its substantive rights to recover against All Service. But, Judge Haight properly concluded that Banco, having entered the New York letter of credit market on its own free will, was bound by the prevailing law of that forum. See Chuidian v. Philippine Nat’l Bank, 734 F.Supp. 415, 420 (C.D.Cal.1990). Accordingly, since the acceptance unconditionally obligated the issuing bank to hon- or the draft drawn pursuant to a letter of credit even as against an alleged defrauding seller, we affirm the district court’s denial of the motion for a preliminary injunction. . U.C.C. § 5-114(2) states: [W]hen documents appear on their face to comply with the terms of a credit but a required document does not in fact conform to the warranties made on negotiation or ... there is fraud in the transaction (a) the issuer must honor the draft or demand for payment if honor is demanded by a negotiating bank or other holder of the draft ... in due course ... and (b) in all other cases as against its customer, an issuer acting in good faith may honor the draft or demand for payment despite notification from the customer of fraud, forgery or other defect not apparent on the face of the documents but a court of appropriate jurisdiction may enjoin such honor. . U.C.C. § 4-303(1) provides: Any knowledge, notice or stop-order received by, legal process served upon or setoff exercised by a payor bank, whether or not effective under other rules of law to terminate, suspend or modify the bank's right or duty to pay an item or to charge its customer’s account for the item, comes too late to so terminate, suspend or modify such right or duty if the ... legal process is received or served ... after the bank has done any of the following: (a) accepted or certified the item...." }, { "docid": "13866418", "title": "", "text": "has taken the draft or demand under the credit and under circumstances which would make it a holder in due course (Section 3-302) and in an appropriate case would make it a person to whom a document of title has been duly negotiated (Section 7-502) or a bona fide purchaser of a security (Section 8-302); and “(b) in all other cases as against its customer, an issuer acting in good faith may honor the draft or demand for payment despite notification from the customer of fraud, forgery or other defect not apparent on the face of the documents but a court of appropriate jurisdiction may enjoin such honor.” Thus, the first step in determining whether Toronto-Dominion justifiably refused to make payments under the final two drafts is to determine whether there was “fraud in the transaction.” In United Bank Limited v. Cambridge Sporting Goods Corp., 41 N.Y.2d 254, 392 N.Y.S.2d 265, 360 N.E.2d 943 (1976), the New York Court of Appeals commented that Section 5-114(2) “represents a codification of precode case law most eminently articulated in the landmark case of Sztejn v. Schroder Banking Corp., 177 Misc. 719, 31 N.Y.S.2d 631, Shientag, J., where it was held that the shipment of cowhair in place of bristles amounted to more than mere breach of warranty but fraud sufficient to constitute grounds for enjoining payment of drafts to one not a holder in due course .... Even prior to the Sztejn case, forged or fraudulently procured documents were proper grounds for avoidance of payment of drafts drawn under a letter of credit (Pinkelstein, Legal Aspects of Commercial Letters of Credit, pp. 231-236-247....” Id. 372 N.Y.S.2d at 270-71, 360 N.E.2d at 948-49 (citations omitted). The Court also noted that the drafters of the Section, in attempting to codify the Sztejn case and in utilizing the phrase “fraud in the transaction,” rejected a dogmatic approach in favor of a flexible standard “to be applied as the circumstances of a particular situation mandate.” Id. at 271, 360 N.E.2d at 949 (footnote omitted). Based on the facts of the present case, it is clear that the" }, { "docid": "1184606", "title": "", "text": "I request that you cancel same effective immediately.” Since the court has already determined that this letter of credit is irrevocable, it can be revoked or modified only with the beneficiary’s consent pursuant to Article 5-106(2). Since the plaintiff has obviously not consented to a revocation, clearly Sro-ka’s letter could not operate as such. The final possible defense of the Bank is that Sroka’s letter may constitute notice of fraud pursuant , to Article 5-114(2)(a). It appears to the court from. studying comment 2 to Article 5-114 and the text of the code itself that 5-114(2)(a) raises defenses when innocent third parties are involved but that 5-114(2)(b) is the proper section to apply when, as here, solely the original parties to the transaction are involved and the bank receives a direction from its customer to stop payment. Article 5-114(2)(b) reads as follows: “(b) in all other cases as against its customer, an issuer acting in good faith may honor the draft or demand for payment despite notification from the customer of fraud, forgery or other defect not apparent on the face of the documents but a court of appropriate jurisdiction may enjoin such honor.” While this language is not as clear as it could be, the court understands it to mean the following. If the bank has received no notice of fraud, forgery, or of a defect on the instrument, it has no privilege to dishonor. If the bank receives notice of any one of these defenses, it has the option to either dishonor or to honor. Neither the Code nor its comments give any hint as to what type of fraud gives the bank an option to pay or not to pay under this section. It is the court’s conclusion that the traditional elements of common law fraud are not present here. While the courts have been reluctant to define fraud, it generally is thought to include an element of intentional misrepresentation in order to profit from another. See 37 Am. Jur.2d § 1, et seq., Fraud and Deceit; Dev-itt and Blackmar, Federal Jury Practice and Instructions Civil and" }, { "docid": "13866417", "title": "", "text": "§ 5-103. This obligation of the issuer to pay the beneficiary generally is independent of any obligation involved in the underlying sales contract. U.C.C. § 5-114(1); White and Summers, Uniform Commercial Code, § 18-2 pp. 711-12. The letter of credit itself is not a negotiable instrument, although the drafts under it may be. Id. at 715. Despite this general rule, the U.C.C. recognizes certain exceptions that excuse the issuing bank from honoring drafts under a letter of credit. Subdivision (2) of Section 5-114 of the U.C.C. provides that “[ujnless otherwise agreed when documents appear on their face to comply with the terms of a credit but a required document does not in fact conform to the warranties made on negotiation or transfer of a document of title (Section 7-507) or of a security (Section 8-306) or is forged or fraudulent or there is fraud in the transaction “(a) the issuer must honor the draft or demand for payment if honor is demanded by a negotiating bank or other holder of the draft or demand which has taken the draft or demand under the credit and under circumstances which would make it a holder in due course (Section 3-302) and in an appropriate case would make it a person to whom a document of title has been duly negotiated (Section 7-502) or a bona fide purchaser of a security (Section 8-302); and “(b) in all other cases as against its customer, an issuer acting in good faith may honor the draft or demand for payment despite notification from the customer of fraud, forgery or other defect not apparent on the face of the documents but a court of appropriate jurisdiction may enjoin such honor.” Thus, the first step in determining whether Toronto-Dominion justifiably refused to make payments under the final two drafts is to determine whether there was “fraud in the transaction.” In United Bank Limited v. Cambridge Sporting Goods Corp., 41 N.Y.2d 254, 392 N.Y.S.2d 265, 360 N.E.2d 943 (1976), the New York Court of Appeals commented that Section 5-114(2) “represents a codification of precode case law most eminently articulated" }, { "docid": "23700446", "title": "", "text": "the Ministry to warrant a finding of “irreparable harm.” That is to say, if Itek is otherwise entitled to the injunction, there is no “alternative legal remedy” that would bar a court from issuing the injunction. Ill Fraud Massachusetts law, Mass.Gen.Laws ch. 106 § 5-114(2)(b), authorizes a court to enjoin payment on a letter of credit when it finds “fraud in the transaction.” That Massachusetts Uniform Commercial Code provision states (2) Unless otherwise agreed when documents appear on their face to comply with the terms of a credit but a required document ... is forged or fraudulent or there is fraud in the transaction (a) the issuer must honor the draft ... if honor is demanded by ... a holder in due course ...; and (b) in all other cases as against its customer, an issuer acting in good faith may honor the draft or demand for payment despite notification from the customer of fraud, forgery or other defect not apparent on the face of the documents but a court of appropriate jurisdiction may enjoin such honor. The basic legal question in this case is whether the circumstances surrounding Melli’s calls on FNBB’s letters of credit establish “fraud in the transaction” within the meaning of this U.C.C. provision. We answer this question fully aware of the need to interpret the “fraud” provision narrowly. The very object of a letter of credit is to provide a near foolproof method of placing money in its beneficiary’s hands when he complies with the terms contained in the letter itself — when he presents, for example, a shipping document that the letter calls for or (as here) a simple written demand for payment. Parties to a contract may use a letter of credit in order to make certain that contractual disputes wend their way towards resolution with money in the beneficiary’s pocket rather than in the pocket of the contracting party. Thus, courts typically have asserted that such letters of credit are “independent” of the underlying contract. See, e.g., Pringle-Associated Mortgage Corp. v. Southern National Bank, 571 F.2d 871 (5th Cir.1978); Venizelos, S.A. v." }, { "docid": "23309506", "title": "", "text": "in certain limited and specified instances, an issuer must honor facially complying documents: Issuer’s duty and privilege to honor; right to reimbursement (1) An issuer must honor a draft or demand for payment which complies with the terms of the relevant credit regardless of whether the goods or documents conform to the underlying contract between the customer and the beneficiary. The issuer is not excused from honor of such a draft or demand by reason of an additional general term that all documents must be satisfactory to the issuer, but an issuer may require that specified documents must be satisfactory to it. (2) Unless otherwise agreed when documents appear on their face to comply with the terms of a credit but a required document does not in fact conform to the warranties made on negotiation or transfer of a document of title or of security or is forged or fraudulent or there is fraud in the transaction (a) the issuer must honor the draft or demand for payment if honor is demanded by a negotiating bank or other holder of the draft or demand which has taken the draft or demand under the credit and under circumstances which would make it a holder in due course and in an appropriate case would make it a person to whom a document of title had been duly negotiated or a bona fide purchaser of a security; and (b) in all other cases as against its customer, an issuer acting in good faith may honor the draft or demand for payment despite notification from the customer of fraud, forgery or other defect not apparent on the face of the document but a court of appropriate jurisdiction may enjoin such honor. (3)Unless otherwise agreed an issuer which had duly honored a draft or demand for payment is entitled to immediate reimbursement of any payment made under the credit and to be put in effectively available funds not later than the day before maturity of any acceptance made under the credit. La.R.S. 10:5-114. . A letter of credit contract is a bilateral agreement between the" }, { "docid": "23700445", "title": "", "text": "(Iran-U.S. Claims Tribunal, Nov. 5, 1982), interprets the jurisdictional bar so narrowly that in fact the contract’s “Iranian court” language would not have deprived the Tribunal of jurisdiction. This Tribunal case, however, was decided in November 1982, nearly ten months after the January 1982 filing deadline. The record supports the district court’s conclusion that the November 1982 interpretation was far from obvious ten months earlier. See Itek Corp. v. First National Bank of Boston, 511 F.Supp. at 1349 n. 17; see also Itek Corp. v. First National Bank of Boston, 704 F.2d at 11 n. 9 (noting that Tribunal had appeared to lack jurisdiction, before Ford Aerospace decision). Thus, we accept its conclusion that the Tribunal remedy reasonably appeared inadequate before January 1982 and plainly was inadequate after January 1982. We need not consider the other problems Itek raises about the adequacy of a Tribunal remedy, for this jurisdictional problem alone sufficiently spoils this “alternative” legal route. There is sufficient risk that, without an injunction, Itek would be without means to recover its money from the Ministry to warrant a finding of “irreparable harm.” That is to say, if Itek is otherwise entitled to the injunction, there is no “alternative legal remedy” that would bar a court from issuing the injunction. Ill Fraud Massachusetts law, Mass.Gen.Laws ch. 106 § 5-114(2)(b), authorizes a court to enjoin payment on a letter of credit when it finds “fraud in the transaction.” That Massachusetts Uniform Commercial Code provision states (2) Unless otherwise agreed when documents appear on their face to comply with the terms of a credit but a required document ... is forged or fraudulent or there is fraud in the transaction (a) the issuer must honor the draft ... if honor is demanded by ... a holder in due course ...; and (b) in all other cases as against its customer, an issuer acting in good faith may honor the draft or demand for payment despite notification from the customer of fraud, forgery or other defect not apparent on the face of the documents but a court of appropriate jurisdiction may enjoin" }, { "docid": "2370255", "title": "", "text": "fact,” id.; see Dynamics Corp. of America, 356 F.Supp. at 999; where the beneficiary’s conduct has “ ‘ “so vitiated the entire transaction that the legitimate purposes of the independence of the issuer’s obligation would no longer be served,” ’ ” Itek, 730 F.2d at 25 (quoting Roman Ceramics Corp. v. Peoples National Bank, 714 F.2d 1207, 1212 n. 12, 1215 (3d Cir.1983) (quoting Intraworld Industries, Inc., 336 A.2d at 324-25)); then a court may enjoin payment. The Uniform Commercial Code, as adopted in most states, says: Unless otherwise agreed when documents appear on their face to comply with the terms of a credit but a required document ... is forged or fraudulent or there is fraud in the transaction: (b) [except in certain circumstances listed in subsection (a) not here applicable] an issuer acting in good faith may honor the draft or demand for payment despite notification from the customer of fraud, forgery or other defect not apparent on the face of the documents but a court of appropriate jurisdiction may enjoin such honor. U.C.C. 5-114(2) (emphasis added). The “fraud” exception does not apply in this case, however, for the record shows nothing “fraudulent” about Westates’ demand for payment, nor did the district court find to the contrary. As our earlier discussion of the contract dispute makes clear, see pp. 1270-71 supra, the record reveals that Westates’ claims and defenses are, at the least, “colorable.” Since the letter of credit at issue is an ordinary “standby” or “guarantee” letter, since Westates can readily fulfill the letter’s expressed “call” conditions, and since, in doing so, Westates’ call would not amount to “fraud,” commercial law, as embodied in the law of most states, would forbid a court to enjoin Westates from calling the letter, whether or not that court believed that eventually Westates would lose its case on the underlying contract. See cases cited at p. 1272 supra. The only remaining question on this appeal is whether California’s law significantly deviates from the norm. III. California Law California letter of credit law quite obviously differs from the norm in one important" }, { "docid": "12008360", "title": "", "text": "when documents appear on their face to comply with the terms of a credit but a required document does not in fact conform to the warranties made on negotiation or transfer of a document of title (§ 47-7-507) or of a security (§ 47-8-306) or is forged or fraudulent or there is fraud in the transaction (a) the issuer must honor the draft or demand for payment if honor is demanded by a negotiating bank or other holder of the draft or demand which has taken the draft or demand under the credit and under circumstances which would make it a holder in due course (§ 47-3-302) and in an appropriate case would make it a person to whom a document of title has been duly negotiated (§ 47-7-502) or a bona fide purchaser of a security (§ 47-8-302); and (b) in all other cases as against its customer, an issuer acting in good faith may honor the draft or demand for payment despite notification from the customer of fraud, forgery or other defect not apparent on the face of the documents but a court of appropriate jurisdiction may enjoin such honor. (3) Unless otherwise agreed an issuer which has duly honored a draft or demand for payment is entitled to immediate reimbursement of any payment made under the credit and to be put in effectively available funds not later than the day before maturity of any acceptance made under the credit. (Emphasis supplied.) The letter of credit constitutes an independent contract between the issuer and the beneficiary. If the beneficiary presents to the issuer his draft accompanied by the document(s) in proper form called for in the letter of credit, the draft must be honored. See Banco Espanol de Credito v. State Street Bank and Trust Company, 385 F.2d 230 (1st Cir. 1967) cert. den. 390 U.S. 1013, 88 S.Ct. 1263, 20 L.Ed.2d 163; Dynamics Corporation of America v. Citizens and Southern National Bank, 356 F.Supp. 991 (N.D.Ga.1973). As stated in T.C.A. 47-5-114 the issuer must honor the draft despite a nonconformity in the underlying contract. The Comments to" }, { "docid": "18887393", "title": "", "text": "this definition, and nothing in Article 9 suggests that its drafters meant to exclude guarantors from its safeguards. We agree with Kristin that it would be odd indeed if the Code allowed a creditor to avoid the protections established for debtors merely by taking the readily available step of forcing the debtor’s principals to sign personal guarantees. In sum, the weight and trend of New York law holds a guarantor may not waive the defense of commercial reasonableness. As a consequence, any waiver in the guaranty executed by Chan is null and void. There remains the question of whether Chan raised a genuine issue of material fact respecting the commercial reasonableness of the Bank’s handling of the letters of credit. Ill Commercial Reasonableness of the Bank’s Actions In the context of this case, commercial reasonableness must be assessed with reference to the special rules applicable to letters of credit. The Code's definition of a letter of credit provides a good starting point. A letter of credit is “an engagement by a bank ... made at the request of a customer ... that the issuer will honor drafts of other demands for payment upon compliance with the conditions specified in the credit.” U.C.C. § 5-103(l)(a). A bank’s obligation to its customer “includes good faith and observance of any general banking usage” but does not include liability for the performance of the underlying contract. § 5-109(1). A bank to which a draft is presented may defer honoring the draft for three days following the receipt of the documents, but after that time, the bank is deemed to have dishonored the draft unless the party presenting the draft has consented to further delays. See § 5-112(1). Further, An issuer must honor a draft or demand for payment which complies with the terms of the relevant credit regardless of whether the goods or documents conform to the underlying contract for sale or other contract between the customer and the beneficiary. U.C.C. § 5-114. Letters of credit, it has been long recognized, are a mercantile specialty adaptable to a broad range of commercial uses. Note," }, { "docid": "23309507", "title": "", "text": "bank or other holder of the draft or demand which has taken the draft or demand under the credit and under circumstances which would make it a holder in due course and in an appropriate case would make it a person to whom a document of title had been duly negotiated or a bona fide purchaser of a security; and (b) in all other cases as against its customer, an issuer acting in good faith may honor the draft or demand for payment despite notification from the customer of fraud, forgery or other defect not apparent on the face of the document but a court of appropriate jurisdiction may enjoin such honor. (3)Unless otherwise agreed an issuer which had duly honored a draft or demand for payment is entitled to immediate reimbursement of any payment made under the credit and to be put in effectively available funds not later than the day before maturity of any acceptance made under the credit. La.R.S. 10:5-114. . A letter of credit contract is a bilateral agreement between the issuer and its customer where the customer makes certain obligations in consideration of the issuer’s issuance of the credit. While the beneficiary is not a direct party to this transaction, it is a protected party. To this end, La.R.S. 10:5-106 provides: (1) Unless otherwise agreed a credit is established (a) as regards the customer as soon as a letter of credit is sent to him or the letter of credit of an authorized written advice of its issuance is sent to the beneficiary; and (b) as regards the beneficiary when he receives a letter of credit or an authorized written advice of its issuance. (2) Unless otherwise agreed once an irrevocable credit is established as regards the customer it can be modified or revoked only with the consent of the customer and once it is established as regards the beneficiary it can be modified or revoked only with his consent. (3) Unless otherwise agreed after a revocable credit is established it may be modified or revoked by the issuer without notice to or consent from" }, { "docid": "920963", "title": "", "text": "agreed when documents appear on their face to comply with the terms of a credit but a required document does not in fact conform to the warranties made on negotiation or transfer of a document of title (Section 7-507) or of a security (Section 8-306) or is forged or fraudulent or there is fraud in the . transaction (a) the issuer must honor the draft or demand for payment if honor is demanded by a negotiating bank or other holder of the draft or demand which has taken the draft or demand under the credit and under circumstances which would make it a holder in due course (Section 3-302) and in an appropriate case would make it a person to whom a document of title has been duly negotiated (Section 7-502) or a bona fide purchaser of a security (Section 8-302); and (b) in all other cases as against its customer, an issuer acting in good faith may honor the draft or demand for payment despite notification from the customer of fraud, forgery or other defect not apparent on the face of the documents but a court of appropriate jurisdiction may enjoin such honor.” A letter of credit is essentially a third party beneficiary contract. A party wishing to transact business induces a bank to issue the letter to a third party. It is a contract between the procuring customer and the issuing bank for the benefit of the payee-beneficiary. In the ordinary letter of credit situation, at the request of one of its customers a bank issues directly to a third party a promise to pay a sum of money on being furnished with certain documents. Anderson, Uniform Commercial Code, Sections 5-101:5 and 5-101:6. As an element of his contractual undertaking, the issuer must honor any draft or demand for payment which complies with the terms of the credit, UCC 5-114(1), Anderson, Uniform Commercial Code, Section 5-114:7. It appears that Dry Dock complied with the terms of the letter of credit and there being no injunction against it, the issuing bank was obliged to pay. The parties then, the" }, { "docid": "2370254", "title": "", "text": "enjoining payment, the random happenstance as to whether beneficiary or issuer is within the court’s jurisdiction, and the practical fact that, in any such case, the real parties in interest are likely the contracting parties (with issuing bank as neutral observer), the roughly parallel reluctance to enjoin both issuer and beneficiary is understandable. See id. at 7-50 to 7-52. We have said throughout that courts may not “normally” issue an injunction because of an important exception to the general “no injunction” rule. The exception, as we also explained in Itek, 730 F.2d at 24-25, concerns “fraud” so serious as to make it obviously pointless and unjust to permit the beneficiary to obtain the money. Where the circumstances “plainly” show that the underlying contract forbids the beneficiary to call a letter of credit, Itek, 730 F.2d at 24; where they show that the contract deprives the beneficiary of even a “colorable ” right to do so, id. at 25; where the contract and circumstances reveal that the beneficiary’s demand for payment has “absolutely no basis in fact,” id.; see Dynamics Corp. of America, 356 F.Supp. at 999; where the beneficiary’s conduct has “ ‘ “so vitiated the entire transaction that the legitimate purposes of the independence of the issuer’s obligation would no longer be served,” ’ ” Itek, 730 F.2d at 25 (quoting Roman Ceramics Corp. v. Peoples National Bank, 714 F.2d 1207, 1212 n. 12, 1215 (3d Cir.1983) (quoting Intraworld Industries, Inc., 336 A.2d at 324-25)); then a court may enjoin payment. The Uniform Commercial Code, as adopted in most states, says: Unless otherwise agreed when documents appear on their face to comply with the terms of a credit but a required document ... is forged or fraudulent or there is fraud in the transaction: (b) [except in certain circumstances listed in subsection (a) not here applicable] an issuer acting in good faith may honor the draft or demand for payment despite notification from the customer of fraud, forgery or other defect not apparent on the face of the documents but a court of appropriate jurisdiction may enjoin such honor." }, { "docid": "13048983", "title": "", "text": "inhibit courts from enjoining payment of a letter of credit. See Itek Corp. v. First National Bank of Boston, supra. But they do not allow Hospital Trust Bank to prevail here. For one thing, suppose a letter’s beneficiary agrees by contract with a customer that it will not call a letter of credit (under certain circumstances). Despite judicial reluctance to examine the contract and to enjoin a call, a court might well later decide that a beneficiary’s call violated its contract with its customer, and it would award the customer damages for the contract’s breach. Here there is strong evidence that Franklin and Emery made such a contract — the letter was to be used only to pay Emery’s actual debts to Franklin, and it was to be called only if Emery, after demand, did not pay them. Franklin’s call upon the letter, in breach of this contract, would presumably have allowed Emery to collect damages from Franklin. And, given Hospital Trust’s involvement in and knowledge of the circumstances, we doubt, that Hospital Trust’s rights in this respect are greater than those of Franklin. We need not elaborate upon this line of reasoning, however, for this is not even a case in which a court, recognizing a letter of credit’s commercial purposes, would have refused to enjoin a letter of credit payment. Rather, it is a case — far stronger for Emery — in which a court injunction forbidding at least some of FNB’s payments would have been proper. A well recognized exception to the “no injunction” doctrine exists in cases of fraud. The Uniform Commercial Code states: Unless otherwise agreed, when documents appear on their face to comply with the terms of a credit but a required document ... is forged or fraudulent or there is fraud in the transaction (a) the issuer must honor the draft ... if honor is demanded by ... a holder in due course ...; and (b) in all other cases ... an issuer acting in good faith may honor the draft ... but a court ... may enjoin such honor. R.I.Gen.Laws § 6A-5-114(2)" }, { "docid": "920962", "title": "", "text": "money or other thing capable of delivery, which, being the subject of litigation, is held by him as trustee for another party, or which belongs or is due to another party, the court may order the same to be deposited in court or delivered to such party, with or without security, subject to the further direction of the court.” Pursuant to 12A Oklahoma Statutes § 5-114 the issuing bank was obliged to honor its letter of credit when Dry Dock presented it for payment. This Statute provides: “(1) An issuer must honor a draft or demand for payment which complies with the terms of the relevant credit regardless of whether the goods or documents conform to the underlying contract for sale or other contract between the customer and the beneficiary. The issuer is not excused from honor or such a draft or demand by reason of an additional general term that all documents must be satisfactory to the issuer, but an issuer may require that specified documents must be satisfactory to it. (2) Unless otherwise agreed when documents appear on their face to comply with the terms of a credit but a required document does not in fact conform to the warranties made on negotiation or transfer of a document of title (Section 7-507) or of a security (Section 8-306) or is forged or fraudulent or there is fraud in the . transaction (a) the issuer must honor the draft or demand for payment if honor is demanded by a negotiating bank or other holder of the draft or demand which has taken the draft or demand under the credit and under circumstances which would make it a holder in due course (Section 3-302) and in an appropriate case would make it a person to whom a document of title has been duly negotiated (Section 7-502) or a bona fide purchaser of a security (Section 8-302); and (b) in all other cases as against its customer, an issuer acting in good faith may honor the draft or demand for payment despite notification from the customer of fraud, forgery or other" }, { "docid": "1184605", "title": "", "text": "West Virginia. TO: United States National Bank 216 Franklin Street Johnstown, Pennsylvania 15901 West Virginia Housing Development Fund, a governmental instrumentality and public body corporate Bv S/John W. Biacucci_ Executive Vice President 900 Charleston National Plaza Charleston, West Virginia 25301” There are no allegations that this sight draft does not conform to the terms of the credit as required by Article 5-114(1) or that the bank breached its responsibility to carefully examine the validity of documents as required by Article 5-109(2). The third possible defense to payment is that the letter of credit was revoked. (The Code’s discussion of revoking irrevocable letters of credit in Article 5 — 106(2) seems to involve some confusion of language.) On July 27, 1973, Sroka sent the following letter to the bank: “On April 20,1972, you. issued a Letter of Credit to the West Virginia Housing Development Fund to cover a projected working capital account for operations in connection with the above-captioned project. “Since this project will not materialize this Letter of Credit will no longer be necessary and I request that you cancel same effective immediately.” Since the court has already determined that this letter of credit is irrevocable, it can be revoked or modified only with the beneficiary’s consent pursuant to Article 5-106(2). Since the plaintiff has obviously not consented to a revocation, clearly Sro-ka’s letter could not operate as such. The final possible defense of the Bank is that Sroka’s letter may constitute notice of fraud pursuant , to Article 5-114(2)(a). It appears to the court from. studying comment 2 to Article 5-114 and the text of the code itself that 5-114(2)(a) raises defenses when innocent third parties are involved but that 5-114(2)(b) is the proper section to apply when, as here, solely the original parties to the transaction are involved and the bank receives a direction from its customer to stop payment. Article 5-114(2)(b) reads as follows: “(b) in all other cases as against its customer, an issuer acting in good faith may honor the draft or demand for payment despite notification from the customer of fraud, forgery or other" }, { "docid": "18887394", "title": "", "text": "the request of a customer ... that the issuer will honor drafts of other demands for payment upon compliance with the conditions specified in the credit.” U.C.C. § 5-103(l)(a). A bank’s obligation to its customer “includes good faith and observance of any general banking usage” but does not include liability for the performance of the underlying contract. § 5-109(1). A bank to which a draft is presented may defer honoring the draft for three days following the receipt of the documents, but after that time, the bank is deemed to have dishonored the draft unless the party presenting the draft has consented to further delays. See § 5-112(1). Further, An issuer must honor a draft or demand for payment which complies with the terms of the relevant credit regardless of whether the goods or documents conform to the underlying contract for sale or other contract between the customer and the beneficiary. U.C.C. § 5-114. Letters of credit, it has been long recognized, are a mercantile specialty adaptable to a broad range of commercial uses. Note, Judicial Development of Letters of Credit Law: A Reappraisal, 66 Cornell L.Rev. 144, 146-47 (1980). A bank issuing a letter of credit has a direct and absolute obligation to pay upon presentation of conforming documentation, entirely independent of claims arising in the underlying sale of goods contract. A major advantage of employing such an instrument is that payment to the beneficiary under the terms of the letter greatly restricts any justification an issuing bank may have to refuse to honor the credit. Otherwise a bank’s refusal to honor the letter compromises its reliability as a payment mechanism. See Voest-Alpine International Corporation v. Chase Manhattan Bank, 707 F.2d 680, 682 (2d Cir.1983). “ ‘[T]he essential requirements of a letter of credit must be strictly complied with by the party entitled to draw against the letter of credit, which means that the papers, documents and shipping descriptions must be as stated in the letter.’ ” Marino Indus. v. Chase Manhattan Bank, N.A., 686 F.2d 112, 114 (2d Cir.1982), quoting Venizelos, S.A. v. Chase Manhattan Bank, 425 F.2d" } ]

[ { "docid": "22642009", "title": "", "text": "the disposition, by a judge of the court, of any motion excepted in subparagraph (A), of applications for posttrial relief made by individuals convicted of criminal offenses and of prisoner petitions challenging conditions of confinement. (C) the magistrate shall file his proposed findings and recommendations under subparagraph (B) with the court and a copy shall forthwith be mailed to all parties. Within ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions. § 636(b)(1)(B) (emphasis added). Our inquiry focuses on the phrase “may serve and file written objections.” The defendant argues that the United States waived its right to appeal by failing to file objections to the magistrate’s report and thereby obtain a de novo review of such issues in the district court. ■ He relies upon United States v. Reeds, 552 F.2d 170 (7th Cir. 1977), to contend that this appeal, in effect, is a direct appeal from the magistrate’s finding. However, Reeds is distinguishable from our case. In Reeds the defendant appealed directly from a magistrate’s finding, while the United States appeals from an order of the district court. Direct appeals from the magistrate’s findings are correctly denied, because only final orders of the district court are appealable pursuant to 28 U.S.C. § 1291. Taylor v. Oxford, 575 F.2d 152, 154 (7th Cir. 1978); Dye v. Cowan, 472 F.2d 1206 (6th Cir. 1977). The United States contends that, in light of the advisory function of the magistrate, Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976), the district judge was still entirely free to “accept, reject or modify in" } ]

[ { "docid": "9686945", "title": "", "text": "Balisok. Defendant Freeburn’s motion to dismiss and/or for summary judgment should be denied. V. Conclusion For the reasons stated above, it is recommended that defendant Freeburn’s motion to dismiss and/or for summary judgment be denied. Any objections to this Report and Recommendation must be filed within ten (10) days of its service. 28 U.S.C. § 636(b)(1); E.D.Mich. LR 72.1(d)(2). Failure to file objections within the specified time constitutes waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Ivey v. Wilson, 832 F.2d 950, 957-58 (6th Cir.1987); United States v. Walters, 638 F.2d 947 (6th Cir.1981). Pursuant to E.D.Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge. Within ten (10) days of service of any objecting party’s timely filed objections, the opposing party may file a response. The response shall be not more than five (5) pages in length unless by motion and order such page limit is extended by the Court. The response shall address specifically, and in the same order raised, each issue contained within the objections. . See, e.g., Ana Leon T. v. Federal Reserve Bank, 823 F.2d 928, 930 (6th Cir.1987) (\"[T]he allegations must be more than mere conclusions, or they will not be sufficient to state a civil rights claim.”), cert. denied, 484 U.S. 945, 108 S.Ct. 333, 98 L.Ed.2d 360 (1987); Chapman v. City of Detroit, 808 F.2d 459, 465 (6th Cir.1986) (\"It is not enough for a complaint ... to contain mere eonclusory allegations of unconstitutional conduct by persons acting under color of state law. Some factual basis for such claims must be set forth in the pleadings.”); Smith v. Rose, 760 F.2d 102, 106 (6th Cir.1985) (eonclusory, unsupported allegations insufficient to state a claim); Keniston v. Roberts, 717 F.2d 1295, 1300 (9th Cir.1983) (dismissal of complaint appropriate if allegations of constitutional deprivation are \"mere conclusions”); Ross v. Meagan, 638 F.2d 646, 650 (3d Cir.1981) (\"[T]his court has consistently demanded that a civil rights complaint contain a modicum of factual specificity, identifying the particular conduct of" }, { "docid": "3301609", "title": "", "text": "act within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v. Sec’y of HHS, 932 F.2d 505 (6th Cir.1991); United States v. Walters, 638 F.2d 947 (6th Cir.1981). Filing of objections which raise some issues but fail to raise others with specificity, will not preserve all the objections a party might have to this report and recommendation. Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this magistrate judge. Within ten (10) days of service of any objecting party’s timely filed objections, the opposing party may file a response. The response shall be not more than twenty (20) pages in length unless by motion and order such limit is extended by the court. The response shall address specifically, and in the same order raised, each issue contained within the objections. . The GAF score is a subjective determination that represents \"the clinician’s judgment of the individual’s overall level of functioning.” AMERICAN PSYCHIATRIC ASSOC., DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, (4th ed.1994) at 30. It ranges from 100 (superior functioning) to 1 (persistent danger of severely hurting self or others, persistent inability to maintain minimal personal hygiene, or serious suicidal act with clear expectation of death). See id. at 32. A GAF score of 31-40 indicates \"some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas such as work or school, family relations, judgment, thinking or mood.” Id. A GAF of 41 to 50 means that the patient has \"[sjerious symptoms ... OR any serious impairment in social, occupational, or school functioning (e.g. no friends, unable to keep a job).” Id. A GAF rating of 51 to 60 signals the existence of moderate difficulty in social or occupational functioning. Id. . See, e.g., Varley v. Sec’y of Health and" }, { "docid": "13659229", "title": "", "text": "and Recommendation. Smith v. Detroit Federation of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.1987); Willis v. Secretary of Health & Human Services, 931 F.2d 390, 401 (6th Cir.1991). Pursuant to E.D.Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge. Within ten (10) days of service of any objecting party’s timely filed objections, the opposing party may file a response. The response shall not be more than five (5) pages in length unless by motion and order such page limit is extended by the Court. The response shall address specifically, and in the same order raised, each issue contained within the objections. . The complaint contains class action allegations; however, on May 22, 1994, the parties agreed that plaintiffs would withdraw their allegations for class certification. . Defendants still are refusing Niece to bring her plastic cup into the visiting room. . No civil lawsuit had been filed at this time. . Counts I and II allege violations of the ADA asserted by Plaintiff Niece and Plaintiff Hen-drick, respectively (Complaint ¶¶ 120-135, 136-144). Defendants have made no motion with respect to plaintiffs' claims under section 504 of the Rehabilitation Act of 1973; 42 U.S.C. § 1983; or the Michigan Handicappers Civil Rights Act. . Plaintiffs do not object to dismissing their ADA complaints with respect to these two defendants (Plaintiff’s Brief at 10). As plaintiffs correctly point out, all other claims against these defendants remain. . In his complaint, plaintiff Hendrick mistakenly cites 28 C.F.R. § 35.13/ (g), instead of the correct cite, § 35.130(g). Defendants point out that there is no such section 35.131(g), and argue that plaintiff fails to make out a claim based on his relationship to plaintiff Niece. Under Fed.R.Civ.P. 8(a)(2), a plaintiff need only make “a short and plain statement of the claim showing that the pleader is entitled to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). The purpose of pleading under Fed.R.Civ.P. 8(a) is to afford the adverse party \"fair notice of the claim asserted ... which" }, { "docid": "1777071", "title": "", "text": "adequately address them in his motion. In the alternative, this court recommends that Adell’s motion be denied on the basis that neither claim preclusion nor issue preclusion applies in this matter. The parties to this action may object to and seek review of this Report and Recommendation, but are required to act within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v. Secretary of HHS, 932 F.2d 505, 508 (6th Cir.1991); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir.1981). The filing of objections which raise some issues, but fail to raise others with specificity, will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Secretary of HHS, 931 F.2d 390, 401 (6th Cir.1991); Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this magistrate judge. Within ten (10) days of service of any objecting party’s timely filed objections, the opposing party may file a response. The response shall be no more than 20 pages in length unless, by motion and order, the page limit is extended by the court. The response shall address each issue contained within the objections specifically and in the same order raised. March 12, 2009. . The Court believes that had the Florida bankruptcy court considered a request for attorney fees in its case pursuant to some other statutory authority, that decision would not have had a directly preclusive effect on the Michigan bankruptcy court as to the amount of post-judgment attorney fees warranted here, but it would certainly have been a factor for the Michigan bankruptcy court to consider when assessing all the circumstances and determining an equitable amount. The Court believes that failure to consider attorney fees recovered elsewhere and from other" }, { "docid": "8529686", "title": "", "text": "petitioners filed their claim within this period; and 6. Conclude that petitioners have raised a genuine issue of material fact with respect to their diligence in prosecuting their claim, precluding application of the doctrine of laches. III. NOTICE TO PARTIES REGARDING OBJECTIONS: The parties to this action may object to and seek review of this Report and Recommendation, but are required to act within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. section 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. United States v. Walters, 638 F.2d 947 (6th Cir.1981); Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v. Secretary of Health & Human Services, 932 F.2d 505 (6th Cir.1991). Filing of objections which raise some issues but fail to raise others with specificity, will not preserve all the objections a party might have to this Report and Recommendation. Smith v. Detroit Federation of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.1987); Willis v. Secretary of Health & Human Services, 931 F.2d 390, 401 (6th Cir.1991). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge. Within ten (10) days of service of any objecting party’s timely filed objections, the opposing party may file a response. The response shall be not more than five (5) pages in length unless by motion and order such page limit is extended by the Court. The response shall address specifically, and in the same order raised, each issue contained within the objections. Dated: Oct. 21,1996. . Ronald Vance is currently a prisoner in the federal prison system serving a sentence for his conviction. Co-Petitioner William Vance was not charged with participation in the drug conspiracy, or with any other crime. . In Williams v. United States Drug Enforcement Administration, 51 F.3d 732 (7th Cir.1995), the district court applied a two-year state statute of limitations to the plaintiff's claim. The plaintiff did not dispute that this was the applicable limitations" }, { "docid": "3301608", "title": "", "text": "771 F.2d 966, 973 (6th Cir.1985). In this case “all essential factual issues” have been not been resolved with regard to impact of Plaintiffs concentration limitations and right leg pain on her vocational capacity. Nor is this a case where “proof of disability is overwhelming, or proof of disability is strong and evidence to the contrary is lacking.” Accordingly, a remand for further administrative proceedings consistent with this Report and Recommendation is necessary. III. Recommendation For the above reasons, It is Reoom-mended that Defendant’s motion for Summary Judgment be Denied, and the Plaintiffs Motion for Remand be Geanted. The ALJ is to determine the extent of Plaintiffs sitting, standing, and walking limitations, and determine through VE testimony how many jobs exist in the region consistent with these limitations. He is also to determine the number of jobs consistent with Plaintiffs moderate limitations in concentration, persistence, and pace through an adequate hypothetical question to the VE. The parties to this action may object to and seek review of this report and recommendation, but are required to act within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v. Sec’y of HHS, 932 F.2d 505 (6th Cir.1991); United States v. Walters, 638 F.2d 947 (6th Cir.1981). Filing of objections which raise some issues but fail to raise others with specificity, will not preserve all the objections a party might have to this report and recommendation. Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this magistrate judge. Within ten (10) days of service of any objecting party’s timely filed objections, the opposing party may file a response. The response shall be not more than twenty (20) pages in length unless by motion and order such limit is extended by the court. The response shall address specifically, and in the same order raised, each issue" }, { "docid": "4872562", "title": "", "text": "the Motion to Remand the Havard claim be GRANTED. III. CONCLUSION AND RECOMMENDATION The Michigan Administrative Hearing System is not a “State court.” Accordingly, the Court RECOMMENDS that the Wage and Hour Division’s Motions to Remand be GRANTED. IV. FILING OBJECTIONS The parties to this action may object to and seek review of this Report and Recommendation within fourteen (14) days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Frontier Ins. Co. v. Blaty, 454 F.3d 590, 596 (6th Cir.2006); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir.2005). The parties are advised that making some objections, but failing to raise others, will not preserve all the objections a party may have to this Report and Recommendation. McClanahan v. Comm’r Soc. Sec., 474 F.3d 830 (6th Cir.2006) (internal quotation marks omitted); Frontier, 454 F.3d at 596-97. Objections are to be filed through the Case Manágement/Electronic Case Filing (CM/ECF) system or, if an appropriate exception applies, through the Clerk’s Office. See E.D. Mich. LR 5.1. A copy of any objections is to be served upon this magistrate judge but this does not constitute filing. See E.D. Mich. LR 72.1(d)(2). Once an objection is filed, a response is due within fourteen (14) days of service, and a reply brief may be filed within seven (7) days of service of the response. E.D. Mich. LR 72.1(d)(3), (4). . MotorCity contends that the Fourth Circuit adopted the First and Seventh Circuit's approach in Kolibash v. Committee on Legal Ethics of West Virginia Bar, 872 F.2d 571 (4th Cir.1989). But that case addressed the removal of suits against federal officers under 28 U.S.C. § 1442, not removal under § 1441. Construction of the two statutes is not parallel. See Sun Buick, Inc. v. Saab Cars USA, Inc., 26 F.3d 1259, 1262 (3d Cir.1994) (“The force of Kolibash on [this issue] is diminished, however, because removal in Kolibash was based on 28" }, { "docid": "1777020", "title": "", "text": "which raise some issues, but fail to raise others with specificity, will not pre serve all the objections a party might have to this Report and Recommendation. Willis v. Secretary of HHS, 931 F.2d 390, 401 (6th Cir.1991); Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this magistrate judge. Within ten (10) days of service of any objecting party’s timely filed objections, the opposing party may file a response. The response shall be no more than 20 pages in length unless, by motion and order, the page limit is extended by the court. The response shall address each issue contained within the objections specifically and in the same order raised. Nov. 19, 2008. REPORT AND RECOMMENDATION APPEAL ON ATTORNEY’S FEES AND COSTS I. Introduction This case involves an appeal by appellants Honigman, Miller Schwartz and Cohn (“HMSC”) and John Richards Homes Building Co., L.L.C. (“JRH”) from a September 21, 2006 order of the United States Bankruptcy Court for the Eastern District of Michigan (the “Bankruptcy Court”) denying HMSC’s request for attorney’s fees and costs incurred as a result of appellee Kevin Adell’s post-award conduct. The matter comes before the court on Adell’s Motion for Partial Dismissal of the Appeal (D/E #28). Adell wishes to preclude review of the bankruptcy court’s denial. Appellants have filed a response in opposition to Adell’s motion (D/E # 30) and Adell has filed a reply to that response (D/E # 34). For the reasons stated below, this court recommends that Adell’s motion be DENIED on the basis that Adell waived his preclusion arguments by failing to raise them in a timely manner and by failing to address them adequately in his motion, and that even if timely raised and adequately argued, neither claim preclusion nor issue preclusion bars appellant review by this court. II. Background A. Underlying Case As described by the Sixth Circuit, the underlying case in this matter involved a dispute between JRH and Kevin Adell: As the bankruptcy court found," }, { "docid": "13659227", "title": "", "text": "see also, Pandazides v. Virginia Board of Education, 13 F.3d 823, 830 & n. 9 (4th Cir.1994); Miener v. Missouri, 673 F.2d 969, 979 (8th Cir) (“damages are available under § 504 as a' necessary remedy for discrimination against an otherwise qualified handicapped individual”), cert. denied, 459 U.S. 909, 103 S.Ct. 215, 74 L.Ed.2d 171 (1982); Smith v. Barton, 914 F.2d 1330, 1338 (9th Cir.1990) (“plaintiffs suing under section 504 of the rehabilitation act ‘may pursue the full panoply of remedies, including ... monetary damages’ ”) (citation omitted), cert. denied, 501 U.S. 1217, 111 S.Ct. 2825, 115 L.Ed.2d 995 (1991); Waldrop v. Southern Co. Services, Inc., 24 F.3d 152, 156-57 & n. 5 (11th Cir.1994). Consequently, compensatory damages are available to plaintiffs asserting claims under 42 U.S.C. §§ 12132 and 12203. D. Conclusion In view of the foregoing, the Court should deny defendants’ motion under Fed.R.Civ.P. 12(b)(6) to dismiss plaintiff’s claims under the Americans with Disabilities Act for failure to state a claim upon which relief may be granted, except as to defendants Lockwood and Roberts. As to the plaintiffs’ ADA claims against defendants Lockwood and Roberts, the court should grant defendants’ motion to dismiss for failure to state a claim because all actions of these defendants took place before the effective date of the Act. However, all other claims against these defendants should remain. III. NOTICE TO PARTIES REGARDING OBJECTIONS: The parties to this action may object to and seek review of this Report and Recommendation, but are required to act within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. section 636(b)(1) and E.D.Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. United States v. Walters, 638 F.2d 947 (6th Cir.1981); Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v. Secretary of Health & Human Services, 932 F.2d 505 (6th Cir.1991). Filing of objections that raise some issues but fail to raise others with specificity, will not preserve all the objections a party might have to this Report" }, { "docid": "9686944", "title": "", "text": "from bringing a § 1983 action to challenge the constitutionality of the procedures involved in the parole revocation, even if the success in that case would necessarily implicate the invalidity of the earlier revocation. In a prison context, where there has been no deprivation of good-time credits (as there was in Preiser and Balisok) and the inmate has served whatever period of time in segregation or top-lock that was imposed by the hearing officer, again there is no concern that a § 1983 action could be used as an end run on the habeas exhaustion requirement or for issue-preclusive effects to force a state court to reach a conclusion that the conviction or disciplinary hearing was invalid. In the present case, the only sanction plaintiff received from the hearing officer was six days in top-lock. This sanction had been served by the time he commenced his § 1983 action, and he was not “in custody” because of any wrongful disciplinary determination. Thus, for the reasons stated above, this suit should not precluded by Heck and Balisok. Defendant Freeburn’s motion to dismiss and/or for summary judgment should be denied. V. Conclusion For the reasons stated above, it is recommended that defendant Freeburn’s motion to dismiss and/or for summary judgment be denied. Any objections to this Report and Recommendation must be filed within ten (10) days of its service. 28 U.S.C. § 636(b)(1); E.D.Mich. LR 72.1(d)(2). Failure to file objections within the specified time constitutes waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Ivey v. Wilson, 832 F.2d 950, 957-58 (6th Cir.1987); United States v. Walters, 638 F.2d 947 (6th Cir.1981). Pursuant to E.D.Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge. Within ten (10) days of service of any objecting party’s timely filed objections, the opposing party may file a response. The response shall be not more than five (5) pages in length unless by motion and order such page limit is extended by the Court. The response shall address specifically, and" }, { "docid": "19719433", "title": "", "text": "of the ADA. must be reasonable, and “reasonable” depends upon the nature of the service or program and the type of modification in question. The policy concerns inherent in the maintenance of state correctional facilities, such as security, discipline, and rehabilitation, will not be frustrated by application of either section 504 or the ADA to state prisons. Cf. Gates, 39 F.3d at 1447 (indicating that under the ADA, as under the Constitution a regulation “ ‘is valid if it is reasonably related to legitimate penological interests.’ ”) (quoting Turner, 482 U.S. at 89, 107 S.Ct. at 2261-62). Accordingly, a consideration of the policy interests involved weighs in favor of applying section 504 and the ADA to state prisons. IV. CONCLUSION In light of the foregoing, the Court should conclude that Congress has properly abrogated the states’ Eleventh Amendment immunity, and thus plaintiffs’ claim is not barred by that Amendment. Further, the Court should conclude that the provisions of Title II and Title IV are applicable to state prisons. Accordingly, because plaintiffs’ have stated a claim upon which relief may be granted, the Court should deny defendants’ motion to dismiss. NOTICE TO PARTIES REGARDING OBJECTIONS The parties to this action may object to and seek review of this Report and Recommendation, but are required to act within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. section 636(b)(1) and E.D.Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of appeal United States v. Walters, 638 F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v. Secretary of Health & Human Services, 932 F.2d 505 (6th Cir.1991). Filing of objections which raise some issues but fail to raise others with specificity, will not preserve all the objections a party might have to this Report and Recommendation. Smith v. Detroit Federation of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.1987); Willis v. Sullivan, 931 F.2d 390, 401 (6th Cir.1991). Pur suant to E.D.Mich. LR 72.1(d)(2), a copy of any objections" }, { "docid": "8893628", "title": "", "text": "sex offender therapy, I will not recommend that the Court find Plaintiffs claim for injunctive relief moot. D. CONCLUSION For the reasons stated above, I recommend that Defendants’ Motion to Dismiss be GRANTED IN PART AND DENIED IN PART. I further recommend that the following claims survive Defendants’ Motion: (1) Plaintiffs claim for injunctive relief under Title II of the ADA and under Section 504 of the Rehab Act; (2) Plaintiffs claim for retaliation under the ADA; (3) Plaintiffs claims under the MPDCRA that accrued before March 10, 2001; and (4) Plaintiffs claim for monetary damages against Defendants in their official capacity under the Rehab Act. III. NOTICE TO PARTIES REGARDING OBJECTIONS: The parties to this action may object to and seek review of this Report and Recommendation, but are required to act within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. Section 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. United States v. Walters, 638 F.2d 947 (6th Cir.1981), Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985), Howard v. Secretary of Health and Human Services, 932 F.2d 505 (6th Cir.1991). Filing of objections that raise some issues but fail to raise others with specificity, will not preserve all the objections a party might have to this Report and Recommendation. Smith v. Detroit Federation of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.1987), Willis v. Sullivan, 931 F.2d 390, 401 (6th Cir.1991). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objection is to be served upon this Magistrate Judge. March 20, 2001. Within ten (10) days of service of any objecting party’s timely filed objections, the opposing party may file a response. The response shall not be more than five (5) pages in length unless by motion and order such page limit is extended by the Court. The response shall address specifically, and in the same order raised, each issue contained within the objections. . It is unclear whether Defendants refused to transfer" }, { "docid": "11835550", "title": "", "text": "parties to this action may object to and seek review of this Report and Recommendation, but are required to act within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v. Secretary of Health & Human Servs., 932 F.2d 505 (6th Cir.1991); United States v. Walters, 638 F.2d 947 (6th Cir.1981). Filing of objections which raise some issues but fail to raise others with specificity, will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Sullivan, 931 F.2d 390, 401 (6th Cir.1991); Smith v. Detroit Federation of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge. Within ten (10) days of service of any objecting party’s timely filed objections, the opposing party may file a response. The response shall be not more than five (5) pages in length unless by motion and order such page limit is extended by the Court. The response shall address specifically, and in the same order raised, each issue contained within the objections. Feb. 7, 2008 . Although plaintiff was actually employed by Beaver Aerospace, his pay checks were issued by PSI, and the parties refer to PSI as plaintiff's employer. . Plaintiff also had multiple surgeries on his left knee in 1999 and 2000. See PL’s Resp., Exs. A-B. . See also International Ass’n of Heat and Frost Insulators and Asbestos Workers Local Union 42 v. Absolute Environmental Services, Inc., 814 F.Supp. 392, 401 (D.Del.1993) (\"When the moving party seeks summary judgment based on a claim or defense upon which the moving party bears the ultimate burden of proof at trial, the moving party must establish every element of that claim or defense as a matter of law such that no reasonable jury could return a verdict" }, { "docid": "19719434", "title": "", "text": "upon which relief may be granted, the Court should deny defendants’ motion to dismiss. NOTICE TO PARTIES REGARDING OBJECTIONS The parties to this action may object to and seek review of this Report and Recommendation, but are required to act within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. section 636(b)(1) and E.D.Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of appeal United States v. Walters, 638 F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v. Secretary of Health & Human Services, 932 F.2d 505 (6th Cir.1991). Filing of objections which raise some issues but fail to raise others with specificity, will not preserve all the objections a party might have to this Report and Recommendation. Smith v. Detroit Federation of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.1987); Willis v. Sullivan, 931 F.2d 390, 401 (6th Cir.1991). Pur suant to E.D.Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge. Within ten (10) days of service of any objecting party’s timely filed objections, the opposing party may file a response. The response shall be not more than five (5) pages in length unless by motion and order such page limit is extended by the Court. The response shall address specifically, and in the same order raised, each issue contained within the objections. Dated: June 27,1996. . The relevánt facts alleged in the complaint are set forth in detail in my Report & Recommendation of August 25, 1995, at pages 1-6. Accordingly, they are not set forth in detail again here. Judge Borman's Order and my Report are reported at Niece v. Fitzner, 922 F.Supp. 1208 (E.D.Mich.1996). . Although Congress did not explicitly state that it was enacting the Rehabilitation Act or the abrogation of Eleventh Amendment immunity under 42 U.S.C. § 2000d-7 pursuant to its enforcement powers under the Fourteenth Amendment, this can be fairly inferred from the findings and purposes behind the Rehabilitation Act, see 29" }, { "docid": "8529685", "title": "", "text": "pursued their claim. See, e.g., Taft v. United States, 824 F.Supp. 455, 466 (D.Vt.1993) (in claim challenging administrative forfeiture two years after seizure of the property, existence of factual disputes precluded finding that plaintiffs delay was unreasonable). E. Conclusion In view of the foregoing, the Court should: 1. Construe petitioners’ “Motion for Return of Property” as a civil complaint seeking equitable relief; 2. Conclude that a valid waiver of the government’s sovereign immunity exists via application of the Administrative Procedures Act; 3. Conclude that petitioners have raised a genuine issue of material fact with respect to whether the government satisfied statutory and constitutional notice requirements regarding the forfeiture of petitioners’ boat, and thus the Court has jurisdiction to consider petitioners’ claims; 4. Conclude that petitioner William Vance has raised a genuine issue of material fact regarding his standing to contest the seizure and forfeiture of his boat; 5. Conclude that the general six-year statute of limitations provision for actions against the United States found in 28 U.S.C. § 2401(a) applies to petitioners’ claim, and that petitioners filed their claim within this period; and 6. Conclude that petitioners have raised a genuine issue of material fact with respect to their diligence in prosecuting their claim, precluding application of the doctrine of laches. III. NOTICE TO PARTIES REGARDING OBJECTIONS: The parties to this action may object to and seek review of this Report and Recommendation, but are required to act within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. section 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. United States v. Walters, 638 F.2d 947 (6th Cir.1981); Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v. Secretary of Health & Human Services, 932 F.2d 505 (6th Cir.1991). Filing of objections which raise some issues but fail to raise others with specificity, will not preserve all the objections a party might have to this Report and Recommendation. Smith v. Detroit Federation of Teachers Local 231, 829 F.2d 1370," }, { "docid": "1777019", "title": "", "text": "all proceedings arising out of the filing of an involuntary petition if that petition is dismissed and, therefore, its decision should be reversed and the matter remanded for a decision on the merits. V. Conclusion For the reasons discussed above, the court recommends that the decision of the Bankruptcy Court be REVERSED and that this case be remanded to the Bankruptcy Court for a decision on the merits of appellants’ motion and a determination of a reasonable fee amount. The parties to this action may object to and seek review of this Report and Recommendation, but are required to act within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v. Secretary of HHS, 932 F.2d 505, 508 (6th Cir.1991); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir.1981). The filing of objections which raise some issues, but fail to raise others with specificity, will not pre serve all the objections a party might have to this Report and Recommendation. Willis v. Secretary of HHS, 931 F.2d 390, 401 (6th Cir.1991); Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this magistrate judge. Within ten (10) days of service of any objecting party’s timely filed objections, the opposing party may file a response. The response shall be no more than 20 pages in length unless, by motion and order, the page limit is extended by the court. The response shall address each issue contained within the objections specifically and in the same order raised. Nov. 19, 2008. REPORT AND RECOMMENDATION APPEAL ON ATTORNEY’S FEES AND COSTS I. Introduction This case involves an appeal by appellants Honigman, Miller Schwartz and Cohn (“HMSC”) and John Richards Homes Building Co., L.L.C. (“JRH”) from a September 21, 2006 order of the" }, { "docid": "13659228", "title": "", "text": "Roberts. As to the plaintiffs’ ADA claims against defendants Lockwood and Roberts, the court should grant defendants’ motion to dismiss for failure to state a claim because all actions of these defendants took place before the effective date of the Act. However, all other claims against these defendants should remain. III. NOTICE TO PARTIES REGARDING OBJECTIONS: The parties to this action may object to and seek review of this Report and Recommendation, but are required to act within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. section 636(b)(1) and E.D.Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. United States v. Walters, 638 F.2d 947 (6th Cir.1981); Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v. Secretary of Health & Human Services, 932 F.2d 505 (6th Cir.1991). Filing of objections that raise some issues but fail to raise others with specificity, will not preserve all the objections a party might have to this Report and Recommendation. Smith v. Detroit Federation of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.1987); Willis v. Secretary of Health & Human Services, 931 F.2d 390, 401 (6th Cir.1991). Pursuant to E.D.Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge. Within ten (10) days of service of any objecting party’s timely filed objections, the opposing party may file a response. The response shall not be more than five (5) pages in length unless by motion and order such page limit is extended by the Court. The response shall address specifically, and in the same order raised, each issue contained within the objections. . The complaint contains class action allegations; however, on May 22, 1994, the parties agreed that plaintiffs would withdraw their allegations for class certification. . Defendants still are refusing Niece to bring her plastic cup into the visiting room. . No civil lawsuit had been filed at this time. . Counts I and II allege violations of the ADA asserted by Plaintiff Niece and Plaintiff" }, { "docid": "8893629", "title": "", "text": "F.2d 947 (6th Cir.1981), Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985), Howard v. Secretary of Health and Human Services, 932 F.2d 505 (6th Cir.1991). Filing of objections that raise some issues but fail to raise others with specificity, will not preserve all the objections a party might have to this Report and Recommendation. Smith v. Detroit Federation of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.1987), Willis v. Sullivan, 931 F.2d 390, 401 (6th Cir.1991). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objection is to be served upon this Magistrate Judge. March 20, 2001. Within ten (10) days of service of any objecting party’s timely filed objections, the opposing party may file a response. The response shall not be more than five (5) pages in length unless by motion and order such page limit is extended by the Court. The response shall address specifically, and in the same order raised, each issue contained within the objections. . It is unclear whether Defendants refused to transfer Plaintiff from Mid-Michigan back to Carson City or to the J. Robert Cotton Facility. However, to which facility Plaintiff sought to be transferred is not pertinent to the resolution of the issues presented in Defendants’ motion. . The Michigan Persons with Disabilities Civil Rights Act was formerly known as the Michigan Handicappers Civil Rights Act. . In a Report and Recommendation dated February 24, 1997, I recommended that the. Court find that Congress validly abrogated the States’ Eleventh Amendment immunity. On April 4, 1997, the Court issued an order adopting my Report and Recommendation. . See, City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). . See, Kimel v. Florida Bd. of Regents, 528 U.S. 62, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000). . As indicated above, the Popovich decision was vacated on December 12, 2000. While it has no value in terms of precedent, nevertheless, several passages in the opinion offer guidance to the Court. . The Court in Niece did not consider the enforcement scheme for Title" }, { "docid": "1777070", "title": "", "text": "1992) (quoting Gargallo v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 918 F.2d 658, 661 (6th Cir.1990)). Here, the parties dispute whether the any issues of fact or law raised in this action were actually litigated and decided in the Florida Bankruptcy Court. As discussed above, this court finds that no issue presented in this appeal was ever litigated in the Florida Bankruptcy case given the fundamental differences between the two actions with respect to the legal basis for each action, the relief sought, and the standards governing the respective cases. The issues of fact and law in this case involve whether appellants are entitled to attorneys’ fees and costs pursuant to 11 U.S.C. § 303(i)(l) with respect to Adell’s post-award conduct and those issues were not actually litigated or decided as part of the Florida Bankruptcy case. V. Conclusion For the reasons discussed above, this court recommends that Adell’s motion be DENIED on the basis that Adell waived his preclusion arguments by failing to raise them in a timely manner and by failing to adequately address them in his motion. In the alternative, this court recommends that Adell’s motion be denied on the basis that neither claim preclusion nor issue preclusion applies in this matter. The parties to this action may object to and seek review of this Report and Recommendation, but are required to act within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v. Secretary of HHS, 932 F.2d 505, 508 (6th Cir.1991); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir.1981). The filing of objections which raise some issues, but fail to raise others with specificity, will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Secretary of HHS, 931 F.2d 390, 401 (6th Cir.1991); Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370," }, { "docid": "11835549", "title": "", "text": "255 F.Supp.2d 417, 445 (E.D.Pa.2002); Marrero v. Camden County Bd. of Soc. Servs., 164 F.Supp.2d 455, 466 (D.N.J. 2001); cf. Willard v. Ingram Constr. Co., Inc., No. 98-6261, 1999 WL 801580, at *2 (6th Cir. Sept.28, 1999) (“Termination for excessive absenteeism during leave protected under FMLA violates the FMLA.”). Thus, to the extent that genuine issues of material fact remain with respect to whether plaintiff was entitled to FMLA leave for his May 2-3, 2005, absences, genuine issues of material fact also remain with respect to his retaliation claim. The Court should accordingly deny the parties’ motions for summary judgment on this claim. D. Conclusion In view of the foregoing, the Court should conclude that genuine issues of material fact remain and that, based on these issues of fact, neither part is entitled to judgment as a matter of law with respect to plaintiffs entitlement and retaliation claims under FMLA. Accordingly, the Court should deny plaintiffs motion for partial summary judgment and deny defendant’s motion for summary judgment. III. NOTICE TO PARTIES REGARDING OBJECTIONS: The parties to this action may object to and seek review of this Report and Recommendation, but are required to act within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v. Secretary of Health & Human Servs., 932 F.2d 505 (6th Cir.1991); United States v. Walters, 638 F.2d 947 (6th Cir.1981). Filing of objections which raise some issues but fail to raise others with specificity, will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Sullivan, 931 F.2d 390, 401 (6th Cir.1991); Smith v. Detroit Federation of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge. Within ten (10) days of service of any objecting party’s timely filed" } ]

[ { "docid": "22623390", "title": "", "text": "that they were located outside the Northern District of Illinois. The contention is that the district court was without power to issue its process for service outside the district. Section 77 (a) provides that after the petition of the railroad company is approved, “ the court in which such order approving the petition is entered shall, during the pendency of the proceedings under this section and for the purposes thereof, have exclusive jurisdiction of the debtor and its property wherever located.” Congress may authorize the civil process of a federal district court to be served upon persons in any other district. Toland v. Sprague, 12 Pet. 300, 328; United States v. Congress Construction Co., 222 U. S. 199, 203-204; First Nat. Bank v. Williams, 252 U. S. 504, 510. There are other cases to the same effect, but it is unnecessary to cite them. Section 77 deals with railway corporations whose lines and activities are not confined to a single district or a single state, but in numerous instances reach into many districts and many states. The lines of the Rock Island system extend into 20 districts and 14 States. Jurisdiction over reorganization proceedings, however extensive the railway lines may be, is conferred upon a single district court. The usefulness of the section would be greatly minimized and in some instances destroyed if that court were powerless to send its process into any State when necessary to effectuate the purposes of the law. As has already been shown, the equity in the collateral remaining in the railroad company is property; and over this property, wherever located, the federal district court is given exclusive jurisdiction by the precise language of § 77, just quoted. As a necessary consequence of that jurisdiction, the court must have the power to preserve and safeguard the property for the benefit of the trust estate so far as that is compatible with the rights of the pledgees. Jurisdiction over the property wherever located carries with it jurisdiction to enjoin, in a proper case, interferences with the property, and this includes, by necessary inference, the power to" } ]

[ { "docid": "22385660", "title": "", "text": "have been properly brought before the district court for the purposes of the present suit, since Congress could provide for service of process anywhere in the United States. Toland v. Sprague, 12 Pet. 300, 328; United States v. Union Pacific R. Co., 98 U. S. 569, 604; Robertson v. Railroad Labor Board, 268 U. S. 619, 622. Congress, having omitted so to direct, the omission was supplied by Rule 4 (f) of the Rules of Civil Procedure, which provides that “All process other than a subpoena may be served anywhere within the territorial limits of the state in which the district court is held.” In the present case the service was made pursuant to Rule 4 (d) (3) by the United States Marshal, who delivered the summons to the agent of petitioner designated to receive the service. If the service of the summons was valid petitioner was properly brought before the court in the northern district, which had venue and jurisdiction of the subject matter of the suit. It is said that petitioner, by appointing an agent to receive service, has only consented to service of process in suits brought in the state courts and in conformity to state statutes regulating the venue, and that in any case Rule 4 (f) was adopted without authority since the Act of June 19, 1934, 48 Stat. 1064, 28 U. S. C. § 723b, which authorized the promulgation of rules of practice for the district courts, directed that they “shall neither abridge, enlarge, nor modify the substantive rights of any litigant,” and because the construction given to Rule 4 (f) by the court below is inconsistent with Rule 82 which provides that the rules “shall not be construed to extend or limit the jurisdiction of the district courts of the United States or the venue of actions therein.” The answer to the suggestion that the consent to suit in the state is a consent to suit only in the state courts and subject to state statutes regulating venue in those courts is plain. Such consent has been uniformly construed to mean suits within" }, { "docid": "22066082", "title": "", "text": "328; United States v. Union Pacific R. R. Co., 98 U. S. 569, 604. But it has not done so either by any general law or in terms by § 310 of Transportation Act, 1920. The precise question is whether it has impliedly done so by that provision. In a civil suit in personam jurisdiction over the defendant, as distinguished from venue, implies,' among other things, either voluntary appearance.by him or service of process upon him at a place where the officer, serving it has authority to execute ,a writ of summons. Under the general ^provisions of law, a United States district court cannot issue process beyond the limits of the district, Harkness v. Hyde, 98 U. S. 476; Ex parte Graham, 3 Wash. 456; and a defendant in a civil suit can be subjected to its jurisdiction in personam only by service within the districts Toland v. Sprague, 12 Pet. 300, 330. Such was the general rule established by the Judiciary Act of September 24, 1789, c. 20, § 11, 1 Stat. 73, 79, in accordance with the practice at the common law. Piquet v. Swan, 5 Mason 35, 39 et seq. And such has been the general rule ever since. Munter v. Weil Corset Co., 261 U. S. 276, 279. No distinction has been drawn between the case where the plaintiff is the Government and where he is a private citizen. Section 51 of the Judicial Code is a general provision regulating venue. The part pertinent here is that, with certain inapplicable exceptions, “ no civil suit shall be brought in any district court against any person by any original process or proceeding in any other district than that whereof he is an inhabitant.” It is obvious that jurisdiction, in the sense of personal service within a district where suit has been brought, does not dispense with the necessity of proper venue. It is equally obvious that proper venue does not eliminate the requisite of personal jurisdiction over the defendant. The general provision as to venue contained in Judicial Code, § 51, has been departed from in various" }, { "docid": "7730888", "title": "", "text": "260 U. S. 653, 43 S. Ct. 230, 67 L. Ed. 443. Under the general provisions of law the District Court has no power to send its process for service outside of the district. Munter v. Weil Corset Co., Inc., supra; Robertson v. Railroad Labor Board, 268. U. S. 619, 45 S. Ct. 621, 69 L. Ed. 1119. But Congress may by legislation provide that process of every District Court shall run into every part of the United States. Robertson v. Railroad Labor Board, supra; Eastman Kodak Co. v. Southern Photo Materials Co., 273 U. S.-, 47 S. Ct. 400, 71 L., Ed. 423, 427. In eases where Congress has provided for the service of process in districts other than that of the court issuing the process, it is proper procedure to direct the process to the United States marshal of the district where the defendant resides or may he found. Eastman Kodak Co. v. Southern Photo Materials Co., supra. It may be worth while to add here that, since the argument in the case at bar, the decision in Eastman Kodak Co. v. Southern Photo Materials Co., supra, has been handed down. It appears in the opinion of Mr. Justice Sanford in that ease, which was a proceeding under section 12 of the Clayton Act (Act Oct. 15, 1914, 38 Stat. 730 [Comp. St. § 8835n]), that process was issued by the District Court for the Northern District of Georgia and served upon the Eastman Kodak Company pursuant to an order of the court, at Rochester, N. Y.-, where the company had its principal place of business. ' This service the court found to be sufficient to duly bring the defendant before the court. From a copy of the order, which I have procured from the District Court for the Northern District of Georgia, I find that the marshal of the Western district of New York, or his deputy, was ordered to serve the process upon the defendant at its principal office in the city of Rochester. There seems, therefore, to be high judicial sanction for the assertion that" }, { "docid": "1569411", "title": "", "text": "see Part II.D.l. infra, that would not end our inquiry. The court must also have had personal jurisdiction over the appellants to enforce the DOE subpoenas against them. On this latter point, there is no doubt that “[ajpart from specific exceptions created by Congress the jurisdiction of the district courts is territorial.” Georgia v. Pennsylvania Railroad, 324 U.S. 439, 467, 65 S.Ct. 716, 731, 89 L.Ed. 1051 (1945). Personal jurisdiction in a civil suit implies, among other things, either voluntary appearance by the defendant or valid service of process on him at the place where he may be found. See Robertson v. Railroad Labor Board, 268 U.S. 619, 622, 45 S.Ct. 621, 622, 69 L.Ed. 111 (1925). Congress, of course, could authorize suits under federal law in any inferior federal tribunal, id. at 622, 45 S.Ct. at 622; Hanes Supply Co. v. Valley Evaporating Co., 261 F.2d 29, 34 (5th Cir.1958); see U.S. Const. art. Ill, § 1, and provide that the process of every district court shall run into every part of the United States, United States v. Union Pacific Railroad, 98 U.S. 569, 604, 25 L.Ed. 143 (1878); Toland v. Sprague, 37 U.S. (12 Pet.) 300, 328, 9 L.Ed. 1093 (1838). But where Congress has not done so, rule 4(f) of the Federal Rules of Civil Procedure normally confines the geographical area in which a district court’s process can be served to “the territorial limits of the state in which the district court is held,” Fed.R. Civ.P. 4(f); service outside the state is permitted only “when authorized by a statute of the United States” or by some other specific provision of the Federal Rules, id.; see Mississippi Publishing Corp. v. Murphree, 326 U.S. 438, 444-46, 66 S.Ct. 242, 245-46, 90 L.Ed. 185 (1946). To assess the propriety of the District Court’s exercise of enforcement jurisdiction on the basis of extraterritorial service of process, therefore, we must determine whether Congress has created a “specific exception” to the usual rule. Such exceptions may be created either explicitly or implicitly. In FTC v. Browning, 435 F.2d 96 (D.C.Cir.1970), for example, this" }, { "docid": "7730895", "title": "", "text": "issued by the District Court of this district while the amendment was in force, could run into any other district after the expiration of the period of operation of the amendment, so that service made September 20th would be due and sufficient service. It will be noted that the purposes of this amendment are two-fold: (1) It increases the number of districts in which the venue of a suit by the United States may be laid; and (2) it enlarges the power of the court having jurisdiction of the action to bring in defendants residing, or found, in other districts. One relates to the venue of the suit; the other to the jurisdiction over the person of the defendant. These are quite separate and distinct purposes. In Robertson v. Railroad Labor Board, supra, Mr. Justice Brandeis makes this observation : “In a civil suit in personam, jurisdiction over the defendant, as distinguished from venue, implies, among other things, either, voluntary appearance by him or service-of process upon him at a place where the officer serving it has authority to execute a. writ of summons. * * * ” The amendment provided that service of process “upon any defendant may be made in any district within the United States * * * in which any such defendant may be found with the same force and effect as if the same had been served within the district in which said suit, action, or proceeding is brought.” These provisions automaticafiy ceased to operate after four years from September 19, 1922. On September 16, 1926, when the writ was issued, this court had power to send its process into the other districts where the defendants resided, but it did not acquire jurisdiction in personam over these defendants until it had exerted that power to the extent of duly completing service upon them. Union Mutual Life Ins. Co. v. University of Chicago (C. C.) 6 F. 443; Owens v. Ohio Central R. Co. (C. C.) 20 F. 10; Rodgers v. Pitt (C. C.) 96 F. 668; United States v. Eisenbeis (C. C. A.) 112 F." }, { "docid": "10315661", "title": "", "text": "of cases only which present the particular question involving the construction of the constitution or the law.’ ” Strachman v. Palmer, 177 F.2d 427, 431, 12 A.L.R.2d 687 (1 Cir. 1949), Magruder, C. J. concurring. Thus, perhaps in part prompted by “considerations of convenience and economy of judicial administration,” the statutory grant of judicial power to the federal district courts over the “action,” 28 U.S.C. § 1331, was interpreted as power over all the ingredients of the “action.” Unlike the instant situation there was no provision of law expressly forbidding a result admittedly based on judicial economy. Here, however, we are faced with the express provisions of federal law that unless otherwise provided by statute, service must be made within the territorial limits of the state in which the district court is held. Rule 4(f), Federal Rules of Civil Procedure. While it clearly would be within the competence of Congress in cases involving pendent claims to allow the process of the district court to run into every part of the United States, Toland v. Sprague, 37 U.S. (12 Pet.) 300, 9 L.Ed. 1093 (1838); United States v. Union Pacific R. R. Co., 98 U.S. 569, 604, 25 L.Ed. 143 (1878), this must be done expressly, and such an intent is not to be read into a statute by implication. Robertson v. Railroad Labor Board, 268 U.S. 619, 45 S.Ct. 621, 69 L.Ed. 1119 (1925). It seems extremely doubtful that in enacting the provisions for extra-territorial service on claims arising out of violations of federal laws, Congress intended out-of-state defendants to be subject to whatever the various peculiarities of distant state law might be. International Ladies’ Garment Workers’ Union v. Shields & Co., 209 F.Supp. 145 (S.D.N.Y.1962); Lasch v. Antkies, 161 F.Supp. 851 (E.D.Pa.1958). Any departure from the general rule of necessity of service within the district must be “clearly expressed,” and once established must be “carefully guarded” against expansion. Robertson v. Railroad Labor Board, supra, 268 U.S. at 624, 45 S.Ct. 621, 69 L.Ed. 1119; 2 Loss, Securities Regulation, 1011-12. See, also, Phillips v. Murchison, 194 F.Supp. 620 (S.D.N.Y.1961); Schwartz" }, { "docid": "22009788", "title": "", "text": "Our inquiry must therefore begin with the question of venue. If venue is appropriate in this jurisdiction, then service of process is authorized in any jurisdiction where SOHIO is found or is an inhabitant. Section 12 was enacted to enlarge venue and jurisdiction over that which existed by virtue of section 7 of the Sherman Act. Section 12, enacted in 1914, added the phrase “transacts business” to the already existing criteria of being “found” or “doing business.” Therefore, even if a corporation is not found or doing -business in a jurisdiction, it is subject to venue in an antitrust suit if it is transacting business there. This provision has received considerable attention in the courts, which have generally construed it as providing plaintiffs with a wide choice of forum, United States v. National City Lines, 334 U.S. 573, 586, 68 S.Ct. 1169, 92 L.Ed. 1584 (1948); Eastman Kodak Co. v. Southern Photo Materials Co., 273 U.S. 359, 372-74, 47 S.Ct. 400, 71 L.Ed. 684 (1927), regardless of harm to the defendant corporations sued under the Act, Ferguson v. Ford Motor Co., 77 F.Supp. 425, 430 (S.D.N.Y.1948), aff’d sub nom. Ford Motor Co. v. Ryan, 182 F.2d 329 (2d Cir.), cert. denied, 340 U.S. 851, 71 S.Ct. 79, 95 L.Ed. 624 (1950). The leading case on the section 12 venue provisions, United States v. Scophony Corp., 333 U.S. 795, 68 S.Ct. 855, 92 L.Ed. 1091 (1948), characterizes judicial construction of the Act as follows: [The Supreme Court in Eastman] relieved persons injured through corporate violations of the antitrust laws from the “often insuperable obstacle” of resorting to distant forums for redress of wrongs done in the places of their business or residence. A foreign corporation no longer could come to a district, perpetrate there the injuries outlawed, and then by retreating or even without retreating to its headquarters defeat or delay the retribution due. 333 U.S. at 808, 68 S.Ct. at 862 (footnotes omitted). It is clear from the pleadings and affidavits submitted here that SOHIO itself does not inhabit, is not found, nor does it transact business in this district." }, { "docid": "22385659", "title": "", "text": "v. Harris, 12 Wall. 65; Lafayette Ins. Co. v. French, 18 How. 404; Ex parte Schollenberger, 96 U. S. 369. In the present suit there was no occasion to establish waiver of objections to venue in the northern district of Mississippi, since the statute had provided in advance that there should be venue in the district court for the northern district, where respondent resided. Unlike the consent to service in the Neirbo case the consent to service of process on petitioner’s agent throughout the state was not significant as a waiver of venue, but it was an essential step in the procedure by which petitioner was brought before the court and rendered amenable to its judgment in the northern district. By consenting to service of process upon its agent residing in the southern district, petitioner rendered itself “present” there for purposes of service. See Ex parte Schollenberger, supra, 377; cf. International Shoe Co. v. Washington, 326 U. S. 310. Had Congress specifically authorized service there for purposes of suit in the northern district, petitioner would have been properly brought before the district court for the purposes of the present suit, since Congress could provide for service of process anywhere in the United States. Toland v. Sprague, 12 Pet. 300, 328; United States v. Union Pacific R. Co., 98 U. S. 569, 604; Robertson v. Railroad Labor Board, 268 U. S. 619, 622. Congress, having omitted so to direct, the omission was supplied by Rule 4 (f) of the Rules of Civil Procedure, which provides that “All process other than a subpoena may be served anywhere within the territorial limits of the state in which the district court is held.” In the present case the service was made pursuant to Rule 4 (d) (3) by the United States Marshal, who delivered the summons to the agent of petitioner designated to receive the service. If the service of the summons was valid petitioner was properly brought before the court in the northern district, which had venue and jurisdiction of the subject matter of the suit. It is said that petitioner, by appointing" }, { "docid": "13116443", "title": "", "text": "v. Goodman, 294 U.S. 623, 55 S.Ct. 553, 79 L.Ed. 1097; Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865; Comment, State In Personam Jurisdiction — Conflicts, Constitution and the Court, 26 Tenn.L.Rev. 379. . Toland v. Sprague, 12 Pet. 300, 37 U.S. 300, 9 L.Ed. 1093; United States v. Union Pacific R. Co., 98 U.S. 569, 25 L.Ed. 143; Robertson v. Railroad Labor Board, 268 U.S. 619, 45 S.Ct. 621, 69 L.Ed. 1119; Mississippi Publishing Corp. v. Murphree, 326 U.S. 438, 66 S.Ct. 242, 90 L.Ed. 185. See Restatement, Judgments, sec. 5, comment 6: “The Federal Rules of Civil Procedure provide in Rule 4(f) that ‘All process •other than a subpoena may be served anywhere within the territorial limits of the state in which the district court is held and, when a statute of the United States so provides, beyond the territorial limits of that state.’ The Congress could constitutionally provide that in actions brought in the federal courts service of process might be made anywhere within the United States; and although an action is brought in a federal district court in a particular State, the Congress could provide for personal service upon the defendant in another State. The inconvenience to defendants which would result is a sufficient reason for the failure of the Congress ordinarily to permit the exercise of jurisdiction in such a manner, although there is no constitutional objection to such exercise of jurisdiction. In certain cases, indeed, the Congress even in proceedings in personam has permitted service of process outside the territorial limits of the State in which the district court is held.” (See note 32. infra.) . Green v. Chicago, B. & Q. Ry., 205 U.S. 530, 27 S.Ct. 595, 51 L.Ed. 916; Philadelphia & R. Ry. v. McKibbin, 243 U.S. 264, 37 S.Ct. 280, 61 L.Ed. 710; People’s Tobacco Co. v. American Tobacco Co., 246 U.S. 79, 38 S.Ct. 233, 62 L.Ed. 587; Bank of America v. Whitney Cent. Nat’l Bank, 261 U.S. 171, 43 S.Ct. 311, 67 L.Ed. 594; Louisville & N. R. R." }, { "docid": "8869089", "title": "", "text": "Apart from specific exceptions created by Congress the jurisdiction of the district courts is territorial. As stated in Robertson v. Railroad Labor Board, 268 U.S. 619, 622, 623, 45 S.Ct. 621, 622, 623, 69 L.Ed. 1119; “ ‘In a civil suit in personam jurisdiction over the defendant, as distinguished from venue, implies, among other things, either voluntary appearance by him or service of process upon him at a place where the officer serving it has authority to execute a writ of summons. Under the general provisions of law, a United States district court cannot issue process beyond the limits of the district, Harkness v. Hyde, 98 U.S. 476, 25 L.Ed. 237; Ex parte Graham, Fed.Cas.No.5,657, 3 Wash. [C.C.] 456, and a defendant in a civil suit can be subjected to its jurisdiction in personam only by service within the district. Toland v. Sprague, 12 Pet. 300, 330, 9 L.Ed. 1093. Such was the general rule established by the Judiciary Act of September 24, 1789, C. 20, § 11, 1 Stat. 73, 79, in accordance with the practice at the common law. Piquet v. Swan, Fed. Cas.No.11,134, 5 Mason 35, 39 et seq. And such has been the general rule ever since. Munter v. Weil Corset Co., 261 U.S. 276, 279, 43 S.Ct. 347, [349] 67 L.Ed. 652.”’ (Emphasis supplied.) See also, Hansen Packing Co. v. Armour & Co., D.S.S.D.N.Y.1936, 16 F.Supp. 784. Counsel for plaintiffs insist, however, that the joinder as defendants of nonresidents of the district is specifically authorized by § 1392(a) of Judicial Code [28 U.S.C.A. § 1392(a)], which provides that: “Any civil action, not of a local nature, against defendants residing in different districts in the same State, may be brought in any of such districts.” The answer to this contention is that §§ 1391-1393 of the Judicial Code are general venue sections applicable to ordinary actions and have no significance where special statutes fix the venue of particular actions, such as treble damage actions under the anti trust laws, or cases under the Employers’ Liability Act, 45 U.S.C.A. § 51 et seq. and patent infringement and" }, { "docid": "22066081", "title": "", "text": "that by the term “any United States district court ” Congress meant. any such court “ of competent jurisdiction ” ; and that, under the applicable law, no district court is of competent jurisdiction to compel a defendant to obey its decree except that of the district of which he is an inhabitant or of one in which he is found. The Board contends that Congress intended by the phrase to confer not. only liberty to invoke the aid of the court for any district, but power to compel the person named as defendant to litigate in the district selected by the Board, although he is not a citizen or inhabitant of it and is not found therein. The question presented is one of statutory construction. Congress clearly has the power to authorize a suit under a federal law to be brought in any inferior federal court. Congress has power, likewise, to provide that the process of every district court shall run into every part of the United States. Toland v. Sprague, 12 Pet. 300, 328; United States v. Union Pacific R. R. Co., 98 U. S. 569, 604. But it has not done so either by any general law or in terms by § 310 of Transportation Act, 1920. The precise question is whether it has impliedly done so by that provision. In a civil suit in personam jurisdiction over the defendant, as distinguished from venue, implies,' among other things, either voluntary appearance.by him or service of process upon him at a place where the officer, serving it has authority to execute ,a writ of summons. Under the general ^provisions of law, a United States district court cannot issue process beyond the limits of the district, Harkness v. Hyde, 98 U. S. 476; Ex parte Graham, 3 Wash. 456; and a defendant in a civil suit can be subjected to its jurisdiction in personam only by service within the districts Toland v. Sprague, 12 Pet. 300, 330. Such was the general rule established by the Judiciary Act of September 24, 1789, c. 20, § 11, 1 Stat. 73, 79," }, { "docid": "7730887", "title": "", "text": "wholly without authority, inasmuch as the writ was directed only to the United States marshal for the district of Massachusetts or his deputies. (2) That at the time of the service upon each of these defendants the process of this court could not run outside the- territorial limits of the district of Massachusetts. Certain underlying principles have been definitely settled by our Supreme Court in comparatively recent decisions. Thus it is established that, in cases where the court has jurisdiction over the subject-matter of the controversy and the suit is brought in a proper district, the court does not acquire jurisdiction in personam over the defendant, unless he is duly served with process, or has voluntarily submitted to the jurisdiction, or waived his right to object. Munter v. Weil Corset Co., Inc., 261 U. S. 276; 43 S. Ct. 347, 67 L. Ed. 652; Seaboard Rice Milling Co. v. Chicago, R. I. & P. R. Co., 270 U. S. 363, 46 S. Ct. 247, 70 L. Ed. 633; Lee v. Chesapeake & Ohio R. Co., 260 U. S. 653, 43 S. Ct. 230, 67 L. Ed. 443. Under the general provisions of law the District Court has no power to send its process for service outside of the district. Munter v. Weil Corset Co., Inc., supra; Robertson v. Railroad Labor Board, 268. U. S. 619, 45 S. Ct. 621, 69 L. Ed. 1119. But Congress may by legislation provide that process of every District Court shall run into every part of the United States. Robertson v. Railroad Labor Board, supra; Eastman Kodak Co. v. Southern Photo Materials Co., 273 U. S.-, 47 S. Ct. 400, 71 L., Ed. 423, 427. In eases where Congress has provided for the service of process in districts other than that of the court issuing the process, it is proper procedure to direct the process to the United States marshal of the district where the defendant resides or may he found. Eastman Kodak Co. v. Southern Photo Materials Co., supra. It may be worth while to add here that, since the argument in the case" }, { "docid": "22643375", "title": "", "text": "be served “in the district of which it is an inhabitant, or wherever it may be found.” This seems to show that Congress neither\" \"'thought'. there,.existed nor wished to create a 7ifed> 1 eral standard” broad enough\" to warrant service of process in antitruitlitightio: in any district where a _ corporation “transacts business’!: it directed íhat transaction of business was to suffice for venue but that process was then to* be served elsewhere. See Eastman Kodak Co. v. Southern Photo Materials Co., 273 U.S. 359, 47 S.Ct. 400, 71 L.Ed. 684 (1927) (venue in action against Eastman laid in Northern District of Georgia but process served at head office in Rochester, N. Y.); United States v. Scophony Corp., 333 U.S. 795, 68 S.Ct. 855, 92 L.Ed. 1091 (1948). A similar scheme was used in § 22 of the Securities Act of 1933, 15 U.S.C. § 77v, in § 27 of the Securities Exchange Act of 1934, 15 U.S.C. § 78aa, in § 25 of the Public Utility Holding Company Act of 1935, 15 U.S.C. § 79y, and in § 44 of the Investment Company Act of 1940, 15 U.S.C. § 80a-43a — all of which, of course, apply to individuals as Wjell as to corporations. See also the legislation as to national banks dealt with in Mercantile Nat. Bank v. Langdeau, 371 U.S. 555, 83 S.Ct. 520, 9 L.Ed.2d 523 (1963), and Michigan National Bank v. Robertson, 372 U.S. 591, 83 S.Ct. 914, 9 L.Ed.2d 961 (1963). We are told, however, that the existence of a “federal standard” of jurisdiction over foreign corporations in diversity cases has been established by binding authority which the many courts of appeals and district courts that have decided otherwisehave failed to perceive or understands. Consideration of this contention requires analysis of the history of the taking of jurisdiction over , foreign corporations. As has often been pointed out, the courts have had difficulty in evolving a satisfying justification for this. At the start, they had to overcome the notion that a corporate entity could have no legal existence outside the state of its creation." }, { "docid": "725092", "title": "", "text": "under the federal antitrust statutes against corporations, provides: Any suit, action or proceeding under the antitrust laws against a corporation may be brought not only in the judicial district whereof it is an inhabitant, but also in any district wherein it may be found or transacts business; and all process in such cases may be served in the district of which it is an inhabitant, or wherever it may be found. This provision authorizes the obtaining of personal jurisdiction by service of process in the district in which the corporate defendant is incorporated (U. S. v. Scophony Corporation, 333 U.S. 795, 809, 68 S.Ct. 855, 862, 92 L.Ed. 1091 (1948)) or is “present . . . by its officers and agents carrying on the business of the corporation” (Eastman Kodak Co. v. Southern Photo Materials Co., 273 U.S. 359, 371, 47 S.Ct. 400, 402, 71 L.Ed. 684 (1927)), if such corporation is subject to venue in the forum district. The only issue the Court need consider here is whether AMA or ACR “transacts business” in this district -so as to meet the venue requirement. If venue is not proper here, plaintiff could not get personal jurisdiction of the moving corporate defendants by extraterritorial service. If venue is proper in this district, this Court has personal jurisdiction over such defendants. A corporation “transacts business” in a district for purposes of § 12 only if in the “ordinary and usual sense” it transacts business of “substantial character”. Eastman Kodak Company, 273 U.S. at 373, 47 S.Ct. at 403; Scophony Corp., 333 U.S. at 807, 68 S.Ct. at 861; Athletes Foot of Delaware, Inc. v. Ralph Libonati Co., Inc., 445 F.Supp. 35, 43 (D.Del.1977); Friends of Animals, Inc. v. American Veterinary Medical Association, 310 F.Supp. 620, 622 (D.C.N.Y. 1970); Philadelphia Housing Authority v. American Radiator & Standard Sanitary Corp., 291 F.Supp. 252, 256 (E.D.Pa.1968). This “transacts business” standard was intended by Congress to be broader than the “may be found” standard, Eastman Kodak Company, 273 U.S. at 372-73, 47 S.Ct. at 403, but “certainly more than a few isolated and peripheral contacts with" }, { "docid": "13116442", "title": "", "text": "Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154; Travelers Health Assn. v. Virginia, 339 U.S. 643, 70 S.Ct. 927, 94 L.Ed. 1154; Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 72 S.Ct. 413; McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223; Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228. In the McGee case the Court observed that “In a continuing process of evolution this Court accepted and then abandoned ‘consent,’ ‘doing business,’ and ‘presence’ as the standard for measuring the extent of state judicial power over such [foreign] corporations.” 355 U.S. at 222, 78 S.Ct. at 200. It appears that the constitutional prerequisites for an exercise of personal jurisdiction over a non-resident individual are now substantially the same as those applying to a foreign corporation, and, in fact, that there is little if any reason for applying a test of jurisdiction in the case of individuals which is different than that which is applied in the case of corporations. See Henry L. Doherty & Co. v. Goodman, 294 U.S. 623, 55 S.Ct. 553, 79 L.Ed. 1097; Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865; Comment, State In Personam Jurisdiction — Conflicts, Constitution and the Court, 26 Tenn.L.Rev. 379. . Toland v. Sprague, 12 Pet. 300, 37 U.S. 300, 9 L.Ed. 1093; United States v. Union Pacific R. Co., 98 U.S. 569, 25 L.Ed. 143; Robertson v. Railroad Labor Board, 268 U.S. 619, 45 S.Ct. 621, 69 L.Ed. 1119; Mississippi Publishing Corp. v. Murphree, 326 U.S. 438, 66 S.Ct. 242, 90 L.Ed. 185. See Restatement, Judgments, sec. 5, comment 6: “The Federal Rules of Civil Procedure provide in Rule 4(f) that ‘All process •other than a subpoena may be served anywhere within the territorial limits of the state in which the district court is held and, when a statute of the United States so provides, beyond the territorial limits of that state.’ The Congress could constitutionally provide that in actions brought in the federal courts service of process might be made anywhere" }, { "docid": "11947566", "title": "", "text": "below. Pennroad, however, appeared specially in order to move the dismissal of the suit for want of jurisdiction of the subject matter, or, in lieu thereof, to quash the return of service of the summons upon Pennroad. The court below declined to quash the return of service and we think its action in such regard was entirely proper. Section 51 of the Judicial Code as amended by the Act of April 16, 1936, c. 230, 49 Stat. 1213, 28 U.S.C.A. § 112, provides that “suit by a stockholder on behalf of a corporation may be brought in any district in which suit against the defendant or defendants in said stockholders’ action, other than said corporation, might have been brought by such corporation and process in such cases may be served upon such corporation in any district wherein such, corporation resides or may be found”. The plain words of this statutory provision admit of no departure from their meaning by way of interpretation. The power of Congress to determine the venue of an action and to provide for service of process elsewhere has been expressly confirmed. See Eastman Kodak Co. of New York v. Southern Photo Materials Co., 273 U.S. 359, at page 374, 47 S.Ct. 400, 71 L.Ed. 684, citing United States v. Union Pacific R. R. Co., 98 U.S. 569, 604, 25 L.Ed. 143; Robertson v. Railroad Labor Board, 268 U. S. 619, 622, 45 S.Ct. 621, 69 L.Ed. 1119. It cannot be disputed that Pennroad, a Delaware corporation, could have maintained a suit in the court below for the same cause of action on the ground of diversity of citizenship. All of the present defendants except for Pennroad are citizens and residents of Pennsylvania. Applying, then, the clear intent of the statute to the facts in this case, it follows conclusively that Pennroad was amenable to service of the summons in the district wherein it resides or may be found. And that is precisely where Pennroad was served. The appellees’ supplemental motion to quash, itself, recites that the “alias summons was served by the United States Marshal at" }, { "docid": "23552953", "title": "", "text": "settled policy that federal courts should apply state substantive law in diversity cases does not go to the extent of requiring the contrary. The requirement of personal service in the district (except for the special exceptions made by Congress) is an old one going back to the Judiciary Act of 1789, § 11, 1 Stat. 79, and continued in Rev. Stat. § 739, Judicial Code § 51, and the former 28 U.S.C. § 112. During all this period the requirements as to service and venue were treated together, a not unnatural course in view of their close connection. With the revision of Title 28, United States Code, the provisions were separated, the venue requirements going to 28 U.S.C. § 1391 and the service requirements going to 28 U.S.C. § 1693. The latter act seems particularly important as bringing the original requirements of 1789 down into modern law. At any rate the requirement has been steadily applied and as yet has been changed by Congress and the Rules in only limited and particular ways. See Robertson v. Railroad Labor Board, 268 U.S. 619, 622, 45 S.Ct. 621, 69 L.Ed. 1119, also Toland v. Sprague, 12 Pet. 300, 37 U.S. 300, 330, 9 L.Ed. 1093; Big Vein Coal Co. of West Virginia v. Read, 229 U.S. 31, 33 S.Ct. 694, 57 L.Ed. 1053; Ex parte Railway Co., 103 U.S. 794, 26 L.Ed. 461; Rorick v. Devon Syndicate, 307 U.S. 299, 310, 59 S.Ct. 877, 83 L.Ed. 1303. Wholly consistent and apparently required by this background is the parallel condition that a corporation must be “present,” i.e., doing business, within the district in order to be subject to suit there. Philadelphia & Reading Ry. Co. v. McKibbin, 243 U.S. 264, 37 S.Ct. 280, 61 L.Ed. 710; James-Dickinson Farm Mortgage Co. v. Harry, 273 U.S. 119, 122, 47 S.Ct. 308, 71 L.Ed. 569; cases and other authorities cited in 2 Moore’s Federal Practice 969 (2d Ed. 1948). This evinces a deliberate and long-avowed federal practice with reference to the basis of federal judicial action. Thus it seems to us without the Erie principle for" }, { "docid": "11947567", "title": "", "text": "provide for service of process elsewhere has been expressly confirmed. See Eastman Kodak Co. of New York v. Southern Photo Materials Co., 273 U.S. 359, at page 374, 47 S.Ct. 400, 71 L.Ed. 684, citing United States v. Union Pacific R. R. Co., 98 U.S. 569, 604, 25 L.Ed. 143; Robertson v. Railroad Labor Board, 268 U. S. 619, 622, 45 S.Ct. 621, 69 L.Ed. 1119. It cannot be disputed that Pennroad, a Delaware corporation, could have maintained a suit in the court below for the same cause of action on the ground of diversity of citizenship. All of the present defendants except for Pennroad are citizens and residents of Pennsylvania. Applying, then, the clear intent of the statute to the facts in this case, it follows conclusively that Pennroad was amenable to service of the summons in the district wherein it resides or may be found. And that is precisely where Pennroad was served. The appellees’ supplemental motion to quash, itself, recites that the “alias summons was served by the United States Marshal at Wilmington, Delaware, on April 27, 1939, by delivering a true copy thereof to S. H. Ogden, treasurer of The Pennroad Corporation, at the principal and only office and place of business of said Delaware corporation,” etc. The court below, therefore, rightly refused to quash the return of service of the summons. The appellees’ motion to dismiss rests upon two grounds, (1) that the court lacked jurisdiction “because the present action involves the internal affairs and management of a Delaware corporation not transacting business in the Commonwealth of Pennsylvania or the Eastern District thereof”, and (2) that the court should not exercise jurisdiction “because the subject matter of the present action is now at issue and pending before the domiciliary Court of Chancery of the State of Delaware * * * in a proceeding in equity brought by one Joseph W. Perrine * * * [and wife] on behalf of themselves and of all other stockholders and holders of Voting Trust Certificates issued in respect of the stock of The Pennroad Corporation,” etc. A copy of" }, { "docid": "22366102", "title": "", "text": "Massachusetts v. Missouri, supra, p. 19. No such showing has been made. Once a state makes out a case which comes within our original jurisdiction, its right to come here is established. There is no requirement in the Constitution that it go further and show that no other forum is available to it. ■ It is true that § 5 of the Sherman Act empowers the court before whom proceedings under § 4 are pending to bring in parties who reside outside the district in which the court is held. That procedure is available in civil suits brought by the United States. Standard Oil Co. v. United States, 221 U. S. 1, 46. But since § 4 is limited to suits brought by the United States, § 5 is similarly confined. See Greer, Mills & Co. v. Stoller, 77 F. 1; Hansen Packing Co. v. Armour & Co., 16 F. Supp. 784, 787. Apart from specific exceptions created by Congress-the jurisdiction of the district courts is territorial. As stated in Robertson v. Railroad Labor Board, 268 U. S. 619, 622-623: “In a civil suit in personam jurisdiction over the defendant, as distinguished from venue, implies, among other things, either voluntary appearance by him or service of process upon him at a place where the officer serving it has authority to execute a writ of summons. Under the general provisions of law, a United States district court cannot issue process beyond the limits of the district, Harkness v. Hyde, 98 U. S. 476; Ex parte Graham, 3 Wash. 456; and a defendant in a civil suit can be subjected to its jurisdiction in personam only by service within the district. Toland v. Sprague, 12 Pet. 300, 330. Such was the general rule established by the Judiciary Act of September 24, 1789, c. 20, § 11, 1 Stat. 73, 79, in accordance with the practice at the common law. Piquet v. Swan, 5 Mason 35, 39 et seq. And such has been the general rule ever since. Munter v. Weil Corset Co., 261 U. S. 276, 279.” It follows that we should" }, { "docid": "8869088", "title": "", "text": "court in which a treble damage action is pending has no authority to bring in defendants who reside outside the district in which the court is held. This was specifically held in Georgia v. Pennsylvania Railroad Co., 324 U.S. 439, at page 466, 65 S.Ct. 716, at page 730, 89 L.Ed. 1051 where the Supreme Court of the United States said, “It is true that § 5 of the Sherman Act [15 U.S.C.A. § 5] empowers the court before whom proceedings under § 4 [15 U.S.C.A. § 4] are pending to bring in parties who reside outside the district in which the court is held. That procedure is available in civil suits brought by the United States. Standard Oil Co. v. United States, 221 U.S. 1, 46, 31 S.Ct. 502, 510, 54 L.Ed. 619. But since § 4 is limited to suits brought by the United States, § 5 is similarly confined. See Greer Mills & Co. v. Stoller, C.C., 77 F. 1; Hansen Packing Co. v. Armour & Co., D.C., 16 F.Supp. 784, 787. Apart from specific exceptions created by Congress the jurisdiction of the district courts is territorial. As stated in Robertson v. Railroad Labor Board, 268 U.S. 619, 622, 623, 45 S.Ct. 621, 622, 623, 69 L.Ed. 1119; “ ‘In a civil suit in personam jurisdiction over the defendant, as distinguished from venue, implies, among other things, either voluntary appearance by him or service of process upon him at a place where the officer serving it has authority to execute a writ of summons. Under the general provisions of law, a United States district court cannot issue process beyond the limits of the district, Harkness v. Hyde, 98 U.S. 476, 25 L.Ed. 237; Ex parte Graham, Fed.Cas.No.5,657, 3 Wash. [C.C.] 456, and a defendant in a civil suit can be subjected to its jurisdiction in personam only by service within the district. Toland v. Sprague, 12 Pet. 300, 330, 9 L.Ed. 1093. Such was the general rule established by the Judiciary Act of September 24, 1789, C. 20, § 11, 1 Stat. 73, 79, in accordance with" } ]

[ { "docid": "22710099", "title": "", "text": "seq.], ... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” Knighton v. Watkins, 616 F. 2d 795 (1980). Rule 54(d) provides: “(d) Costs “Except when express provision therefor is made either in a statute of the United States or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs .... Costs may be taxed by the clerk on one day’s notice. On motion served within 5 days thereafter, the action of the clerk may be reviewed by the court.” Unless so defined by statute, attorney’s fees are not generally considered “costs” taxable under Rule 54(d). Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240 (1975). Rule 58 states in pertinent part: “Entry of the judgment shall not be delayed for taxing of costs.” Courts of Appeals for the Fifth, Sixth, and Seventh Circuits have held that postjudgment requests for attorney’s fees are not motions to alter or amend a judgment under Rule 59(e), but rather applications for “costs” under Rules 54(d) and 58. See Johnson v. Snyder, 639 F. 2d 316, 317 (CA6 1981); Bond v. Stanton, 630 F. 2d 1231, 1234 (CA7 1980); Knighton v. Watkins, supra, at 797-798. Like the Court of Appeals for the First Circuit in this case, the Court of Appeals for the Tenth Circuit has held squarely that postjudgment requests for fees are motions to alter or amend a judgment under Rule 59(e). Glass v. Pfeffer, 657 F. 2d 252 (1981). The Court of Appeals for the Eighth Circuit has taken still a third position: that a postjudgment motion for attorney’s fees raises a “collateral and independent claim” that is not governed either by Rule 59(e) or by the “costs” provisions of Rules 54(d) and 58. Obin v. District No. 9, Int’l Assn. of Machinists and Aerospace Workers, 651 F. 2d 574, 582 (1981). 451 U. S. 982 (1981). Notes of Advisory Committee on 1946 Amendment to Rules, 28 U. S. C., p. 491; 5 F. R." } ]

[ { "docid": "22745191", "title": "", "text": "imprisonment, 18 U. S. C. § 401; award costs, expenses, and attorney’s fees against attorneys who multiply proceedings vexatiously, 28 U. S. C. § 1927; sanction a party and/or the party’s attorney for filing groundless pleadings, motions, or other papers, Fed. Rule Civ. Proc. 11; sanction a party and/or his attorney for failure to abide by a pretrial order, Fed. Rule Civ. Proc. 16(f); sanction a party and/or his attorney for baseless discovery requests or objections, Fed. Rule Civ. Proc. 26(g); award expenses caused by a failure to attend a deposition or to serve a subpoena on a party to be deposed, Fed. Rule Civ. Proc. 30(g); award expenses when a party fails to respond to discovery requests or fails to participate in the framing of a discovery plan, Fed. Rules Civ. Proc. 37(d) and (g); dismiss an action or claim of a party that fails to prosecute, to comply with the Federal Rules, or to obey an order of the court, Fed. Rule Civ. Proc. 41(b); punish any person who fails to obey a subpoena, Fed. Rule Civ. Proc. 46(f); award expenses and/or contempt damages when a party presents an affidavit in a summary judgment motion in bad faith or for the purpose of delay, Fed. Rule Civ. Proc. 56(g); and make rules governing local practice that are not inconsistent with the Federal Rules, Fed. Rule Civ. Proc. 81. See also 28 U. S. C. § 1912 (power to award just damages and costs on affirmance); Fed. Rule App. Proc. 38 (power to award damages and costs for frivolous appeal). The Court holds nonetheless that a federal court may ignore these provisions and exercise inherent power to sanction bad-faith misconduct “even if procedural rules exist which sanction the same conduct.” Ante, at 49. The Court describes the relation between express sanctioning provisions and inherent power to shift fees as a sanction for bad-faith conduct in a number of ways. At one point it states that where “neither the statute nor the Rules are up to the task \\i. e., cover all the sanctionable conduct], the court may safely rely" }, { "docid": "53645", "title": "", "text": "See W&O, Inc., 213 F.3d at 623. Accordingly, we vacate the award of costs with instructions to retax costs in accordance with this opinion. The judgment is otherwise affirmed. JUDGMENT AFFIRMED; AWARD OF COSTS VACATED AND REMANDED WITH INSTRUCTIONS. . The district court calculated the total of “'exhibit fees” as $16,317.19. Our calculation of the sums enumerated in the order amounts to $16,011.19. . MPW also argues that the district court erred in: (1) excluding evidence of prior and subsequent tube failures; (2) allowing Arcadian’s contract theory; (3) not applying comparative negligence principles; (4) allowing the jury to award interest; (5) excluding the leslimony of a former employee of Nooter; (5) not excluding Arcadian's computer animation; and in (6) denying MPW’s motions for directed verdict on liability and on damages. MPW also raises objections to the taxation of costs unrelated to the computer animation and trial exhibit issues with which we concern ourselves infra. We find no merit in these arguments and reject them without discussion. See 11th Cir. R. 36-1. . The text of Rule 54(d)(1): Except when express provision therefor is made either in a statute of the United States or in these rules, costs other than attorneys’ fees shall be allowed as of course to the prevailing party unless the court otherwise directs; but costs against the United States, its officers, and agencies shall be imposed only to the extent permitted by law. Such co.sts may be taxed by the clerk on one day’s notice. On motion served within 5 days thereafter, the action of the clerk may be reviewed by the court. Fed. R. Civ. Pro. 54(d)(1). . In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981. . It is not clear from the record whether the videotape exhibits are actually excerpts of videotape depositions, which may be taxed separately as costs pursuant to 28 U.S.C. § 1920(2), provided that the deposition meets the requirements outlined in Morrison v. Reichhold Chemicals," }, { "docid": "14010758", "title": "", "text": "it is the opinion of the Court that the costs submitted as taxable are hardly unreasonable. This statement, along with the fact that the costs BDT objects to are covered by § 1920, demonstrates that the district court was within its broad discretion in taxing costs. See Wilkerson v. Johnson, 699 F.2d 325, 330 (6th Cir.1983). III. For the foregoing reasons, the judgment of the district court is affirmed. . The judgment is the subject of the appeal in case number 03-6293. . According to appellee's brief, Lexmark also filed a motion asking the district court to award reasonable attorneys' fees and nontaxable costs pursuant to Federal Rule of Civil Procedure 54(d)(2). The district court stayed the motion pending the outcome of BDT's appeal of the underlying judgment. . Fed.R.Civ.P. 54(d)(1) states: Costs Other than Attorneys’ Fees. Except when express provision therefor is made either in a statute of the United States or in these rules, costs other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs; but costs against the United States, its officers, and agencies shall be imposed only to the extent permitted by law. Such costs may be taxed by the clerk on one day’s notice. On motion served within 5 days thereafter, the action of the clerk may be reviewed by the court. . 28 U.S.C. § 1920 states: A judge or clerk of any court of the United States may tax as costs the following: (1) Fees of the clerk and marshal; (2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case; (3) Fees and disbursements for printing and witnesses; (4) Fees for exemplification and copies of papers necessarily obtained for use in the case; (5) Docket fees under section 1923 of this title; (6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title. . BDT argues, and the dissent agrees, that it was never given an opportunity to" }, { "docid": "22704127", "title": "", "text": "the United States or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs; but costs against the United States, its officers, and agencies shall be imposed only to the extent permitted by law. Costs may be taxed by the clerk on one day’s notice. On motion served within 5 days thereafter, the action of the clerk may be reviewed by the court.” This is precisely how Rule 68 has been applied with respect to ordinary items of taxable costs. See generally 12 Wright & Miller §§3001, 3005; 7 Moore ¶ 68.06. Hensley v. Eckerhart, 461 U. S. 424, 429, n. 2 (1983). See also Hughes v. Rowe, 449 U. S. 5, 14-16 (1980) (per curiam); Christiansburg Garment Co. v. EEOC, 434 U. S. 412, 421 (1978); H. R. Rep. No. 94-1558, at 7. It also might be argued that a defendant may not recover postoffer attorney’s fees under the “plain language” of Rule 68 because he is not the “prevailing party” within the meaning of § 1988. We have made clear, however, that a party may “prevail” under § 1988 on some elements of the litigation but not on others. See, e. g., Hensley v. Eckerhart, supra, at 434-437. Thus while the plaintiff would prevail for purposes of preoffer fees, the defendant could be viewed as the prevailing party for purposes of the postoffer fees. Shifting fees to the defendant in such circumstances would plainly violate § 1988 for the reasons set forth above in text, and the substantive standards of § 1988 must therefore override the otherwise “plain language” approach taken by the Court. Congress also has enacted statutes providing for the award of “costs and expenses, including attorney’s fees.” See infra, at 24. It is unclear how the “plain language” of these provisions interacts with Rule 68. If “including attorney’s fees” is read as referring at least in part to “costs,” fees awards under these statutes are subject to Rule 68. If “including attorney’s fees” is more naturally read as modifying only the preceding word, “expenses,” fees awards" }, { "docid": "19806384", "title": "", "text": "on July 31, 1973 $ 96.60 b) Deposition of Dr. Van Ralph Williams, on July 31, 1973 79.05 c) Deposition of Dr. Richard A. Miller on July 31, 1973 52.05 d) Deposition of Mrs. Brenda Burke, on July 20, 1973 29.40 e) Deposition of Dr. Edward C. Seagerson, on August 16, 1973 91.00 f) Deposition of Dr. Van Ralph Williams, on August 16, 1973 75.00 g) Deposition of Dr. Ralph A. Miller, on September 11, 1973 75.00 h) Deposition of Dr. Matthew Wood, on September 10, 1973 74.00 572.10 for witness fee for discovery deposition on July 31, 1973 100.00 8) Paid to Dr. Richard A. Miller for witness fee for discovery deposition on July 31, 1973 ' 100.00 9) Paid to Dr, Richard A. Miller for witness fee for deposition on September 11, 1973 150.00 10) Paid to Dr. Matthew Wood for physical examination of Plaintiff and for deposition on September 10, 1973 190.00 11) Paid to Dr. Van Ralph Williams for witness fee for deposition on July 31, 1973 100.00 1,723.15 covery deposition taken on April 26, 1973 $ 20.00 6. Witness fee of Mrs. Mabel Carnathan for discovery deposition taken on Oct. 2, 1973 20.00 7. Witness fee Jim Carnathan discovery deposition taken on October 2, 1973 20.00 8. Mileage—Jim Carnathan discovery deposition taken on October 2, 1973 3.40 63.40 TOTAL ?2,137.39 . Rule 54(d) F.R.Civ.P. provides: Except when express provision therefor is made either in a statute of the United States or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs; but costs against the United States, its officers, and agencies shall be imposed only to the extent permitted by law. Costs may be taxed by the clerk on one day’s notice. On motion served within 5 days thereafter, the action of the clerk may be reviewed by the court. . 313 F.2d at 840. . Id. at 840." }, { "docid": "22704125", "title": "", "text": "for which the Court has no plausible explanation. In the absence of any indication that the drafters or Congress intended a “schizophrenic” application of the Rules, Delta Air Lines, Inc. v. August, supra, at 353, “the most reasonable inference,” ante, at 9, contrary to the Court’s pronouncement, is that Rule 68 was intended to conform to § 1920 and to the general policy of uniformity in applying the Rules. See generally 2 M. Derfner & A. Wolf, Court Awarded Attorney Fees, chs. 23-24 (1984); 3 id., ehs. 25-27. See Fed. Rules Civ. Proc. 11 (signing of pleadings, motions, or other papers in violation of the Rule), 16(f) (noncompliance with rules respecting pretrial conferences), 26(g) (certification of discovery requests, responses, or objections made in violation of Rule), 30(g)(1) (failure of party giving notice of a deposition to attend), 30(g)(2) (failure of party giving notice of a deposition to serve subpoena on witness), 37(a)(4) (conduct necessitating motion to compel discovery), 37(b) (failure to obey discovery orders), 37(c) (expenses on failure to admit), 37(d) (failure of party to attend at own deposition, serve answers to interrogatories, or respond to request for inspection), 37(g) (failure to participate in good faith in framing of a discovery plan), 56(g) (summary-judgment affidavits made in bad faith). Ante, at 9, citing Fulps v. Springfield, Tenn. 715 F. 2d 1088, 1091-1095 (CA6 1983); Waters v. Heublein, Inc., 485 F. Supp. 110, 113-117 (ND Cal. 1979); Scherijf v. Beck, 452 F. Supp. 1254, 1259-1260 (Colo. 1978). For cases to the contrary, see, e. g., Dowdell v. Apopka, Fla., 698 F. 2d 1181, 1188-1189, and n. 2 (CA11 1983); White v. New Hampshire Dept. of Employment Security, 629 F. 2d 697, 702-703 (CA1 1980), rev’d on other grounds, 455 U. S. 445 (1982); Piguead v. McLaren, 699 F. 2d 401, 403 (CA7 1983); Association for Retarded Citizens v. Olson, 561 F. Supp. 495, 498 (ND 1982), modified, 713 F. 2d 1384 (CA8 1983); Greenwood v. Stevenson, 88 F. R. D. 225, 231-232 (RI 1980). Rule 54(d) provides in full: “Except when express provision therefor is made either in a statute of" }, { "docid": "53646", "title": "", "text": "Rule 54(d)(1): Except when express provision therefor is made either in a statute of the United States or in these rules, costs other than attorneys’ fees shall be allowed as of course to the prevailing party unless the court otherwise directs; but costs against the United States, its officers, and agencies shall be imposed only to the extent permitted by law. Such co.sts may be taxed by the clerk on one day’s notice. On motion served within 5 days thereafter, the action of the clerk may be reviewed by the court. Fed. R. Civ. Pro. 54(d)(1). . In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981. . It is not clear from the record whether the videotape exhibits are actually excerpts of videotape depositions, which may be taxed separately as costs pursuant to 28 U.S.C. § 1920(2), provided that the deposition meets the requirements outlined in Morrison v. Reichhold Chemicals, Inc., 97 F.3d 460 (11th Cir.1996). Morrison, 97 F.3d at 464-65 (holding that “when a party notices a deposition to be recorded by nonstenographic means, or by both stenographic and non-stenographic means, and no objection is raised at that time by the other party to the method of recordation pursuant to Federal Rule of Civil Procedure 26(c), it is appropriate under § 1920 to award the cost of conducting the deposition in the manner noticed.”). Should the district court determine on remand that the videotape exhibits are indeed excerpts of videotape depositions that have not previously been accounted for in the court’s calculations, and that Arcadian has met the requirements of Morrison, the court may in its discretion tax the costs of such exhibits." }, { "docid": "10212318", "title": "", "text": "pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur, including reasonable attorney’s fees, and any offending party or attorney may be adjudged guilty of contempt. . At a proceeding some weeks after the filing of its opinion, the bankruptcy court took the view that denial of discharge pursuant to 11 U.S.C. § 727(a)(2) — (5) was a \"sanction\". We address the bankruptcy court's view below, but we note here that the bankruptcy court was not addressing attorney’s fees, only costs. We therefore assume that the reasoning of that statement applies only to the application for costs pursuant to Rule 7054. . Because the bankruptcy court opinion amounts to a finding of bad faith, we do not view our holding — that Rule 56(g) requires imposition of costs and fees associated with bad faith affidavits — as inconsistent with the observation in one distinguished treatise that the award of expenses is within the discretion of the court. Wright, Miller & Kane, Federal Practice & Procedure: Civil 2d § 2742, at 563 (1983). That observation is premised in large part on the practical significance of a court’s discretion to determine an absence of bad faith altogether. Once a court has found affidavits to have been presented in \"bad faith” or \"solely for the purpose of delay” (as the bankruptcy court in essence found here), the plain meaning of the Rule requires the assessment of costs and fees. See Fed.R.Civ.Pro. 56(g). . Bankruptcy Rule 7054(b) provides: (b) Costs The court may allow costs to the prevailing party except when a statute of the United States or these rules otherwise provides. Costs against the United States, its officers and agencies shall be imposed only to the extent permitted by law. Costs may be taxed by the clerk on one day's notice; on motion served within five days thereafter, the action of the clerk may be reviewed by the court. .We need not address whether § 727(a)(2)-(5) is a \"sanction\" in other contexts. Certainly, the provisions of § 727 deter some" }, { "docid": "23112104", "title": "", "text": "court of the United States, shall be paid the fees and allowances provided by this section. ****** (b) A witness shall be paid an attendance fee of $30 per day for each day’s attendance. A witness shall also be paid the attendance fee for the time necessarily occupied in going to and returning from the place of attendance at the beginning and end of such attendance or at any time during such attendance. .Compare Daly v. Hill, 790 F.2d 1071, 1084 (4th Cir.1986); Dowdell v. City of Apopka, Fla., 698 F.2d 1181, 1188-89 (11th Cir.1983); Bennett v. Central Tel. Co. of Ill., 619 F.Supp. 640, 643 n. 1 (N.D.Ill.1985) with Bennett v. Department of the Navy, 699 F.2d 1140, 1143 (Fed.Cir.1983); Twentieth Century Fox Film Corp. v. Goldwyn, 328 F.2d 190, 224 (9th Cir.), cert. denied, 379 U.S. 880 (1964); Machinery Corp. of Am. v. Gullfiber AB, 225 USPQ 743, 746 n. 7 (E.D.Pa.1984), [available on WESTLAW, 1984 WL 1774], vacated on other grounds, 774 F.2d 467, 227 USPQ 368 (Fed.Cir.1985); see generally Bartell, Taxa tion of Costs and Awards of Expenses in Federal Court, 101 F.R.D. 553, 589-96 (1984). . 42 U.S.C. § 1988 (1982) reads in pertinent part: In any action or proceeding to enforce a provision of sections 1981,1982, 1983,1985, and 1986 of this title, title IX of Public Law 92-318 [20 U.S.C. 1681 et seq.], or title VI of the Civil Rights Act of 1964 [42 U.S.C. 2000d et seq.], the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs. . District court decisions interpretable as holding to the contrary are not, of course, precedent in this court. See, e.g., Machinery Corp., 225 USPQ at 746; Stickle v. Heublein, Inc., 590 F.Supp. 630, 640, 224 USPQ 910, 917 (W.D.Wis.1984); U.S. Indus., Inc. v. Norton Co., 578 F.Supp. 1561, 1568, 223 USPQ 779, 783 (N.D.N.Y.1984). . Not every prevailing defendant, even in “exceptional” cases, can be said to have been injured or \"damaged\" by the filing and prosecution of the litigation. The role" }, { "docid": "22704077", "title": "", "text": "15 U. S. C. §§78i(e), 78r(a) (1934 ed.). The authors of Federal Rule of Civil Procedure 68 were fully aware of these exceptions to the American Rule. The Advisory Committee’s Note to Rule 54(d), 28 U. S. C. App., p. 621, contains an extensive list of the federal statutes which allowed for costs in particular cases; of the 35 “statutes as to costs” set forth in the final paragraph of the Note, no fewer than 11 allowed for attorney’s fees as part of costs. Against this background of varying definitions of “costs,” the drafters of Rule 68 did not define the term; nor is there any explanation whatever as to its intended meaning in the history of the Rule. In this setting, given the importance of “costs” to the Rule, it is very unlikely that this omission was mere oversight; on the contrary, the most reasonable inference is that the term “costs” in Rule 68 was intended to refer to all costs properly awardable under the relevant substantive statute or other authority. In other words, all costs properly awardable in an action are to be considered within the scope of Rule 68 “costs.” Thus, absent congressional expressions to the contrary, where the underlying statute defines “costs” to include attorney’s fees, we are satisfied such fees are to be included as costs for purposes of Rule 68. See, e. g., Fulps v. Springfield, Tenn., 715 F. 2d 1088, 1091-1095 (CA6 1983); Waters v. Heublein, Inc., 485 F. Supp. 110, 113-117 (ND Cal. 1979); Scheriff v. Beck, 452 F. Supp. 1254, 1259-1260 (Colo. 1978). See also Delta Air Lines, Inc. v. August, 450 U. S., at 362-363 (Powell, J., concurring). Here, respondent sued under 42 U. S. C. § 1983. Pursuant to the Civil Rights Attorney’s Fees Awards Act of 1976, 90 Stat. 2641, as amended, 42 U. S. C. § 1988, a prevailing party in a § 1983 action may be awarded attorney’s fees “as part of the costs.” Since Congress expressly included attorney’s fees as “costs” available to a plaintiff in a § 1983 suit, such fees are subject to" }, { "docid": "22910477", "title": "", "text": "items of costs is in dispute, or where there is a claim as to abuse of discretion. The latter version of the rule would seem to encompass any ground on which an appeal would normally be based. See 6 Moore’s Federal Practice, 2d ed., § 54.70(5), pages 1308-1313, for a review of the cases. . “4. Accounting fees: “(a) Joseph A. Walsli (10-30-54 to 8-19-60) $71,850.00 (b) Price Waterhouse & Co. (5-2-55 to 1-58) 36,929.50 (c) Comptometer Operators (1-56 to 3-58) 6,757.95 (d) Office Machines, Inc. (1-24^56 to 12-28-57) (Accounting machine rental) 1,869.13 (e) Marchant Co. (11-54 to 1-56) (Accounting machine rental) 375.00” . Rule 54(d) reads: “(d) Costs. Except when express provision therefor is made either in a statute of the United States or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs; but costs against the United States, its officers, and agencies shall be imposed only to the extent permitted by law. Costs may be taxed by the clerk on one days’ notice. On motion served within 5 days thereafter, the action of the clerk may be reviewed by the court.” 28 U.S.C. § 1920, which is also relevant, reads: “§ 1920. Taxation of costs “A judge or clerk of any court of the United States may tax as costs the following : “(1) Fees of the clerk and marshal; “(2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case; “ (3) Fees and disbursements for printing and witnesses; “(4) Fees for exemplification and copies of papers necessarily obtained for use in the case; “ (5) Docket fees under section 1923 of this title. “A bill of costs shall be filed in the case and upon allowance, included in the judgment or decree.” . To the same effect, see Clapper v. Original Tractor Cab Co., S.D.Ind., 165 F.Supp. 565, 599, reversed on other grounds, 7 Cir., 270 F.2d 616. . Costs against a defendant, in addition to those enumerated in 28 U.S.C. § 1920, are allowable" }, { "docid": "22945327", "title": "", "text": "F.3d 1179, 1186 n. 4 (9th Cir.1997) (holding that before an argument will be considered on appeal, it must be raised sufficiently for the trial court to rule on it). . For examples of statutes and rules that address abuses of the judicial process, see 18 U.S.C. §§ 401 & 402 (criminal contempt); 18 U.S.C. § 1501 et seq. (obstruction of justice); 28 U.S.C. § 1927 (award cost expenses, attorney’s fees against attorneys who multiply proceedings); 28 U.S.C. § 1826 (recalcitrant witnesses); Fed.RXiv.P. 11 (sanction a party or the party’s attorney for filing groundless pleadings, motions or other papers); Fed. R.Civ.P. 16(0 (sanction a party or party’s attorney for failure to abide by a pretrial order); Fed.R.Civ.P. 26(g) (sanction a party or party's attorney for baseless discovery requests or objections); Fed.R.Civ.P. 30(g) (award expenses caused by failure to attend a deposition or to serve a subpoena on a party to be deposed); Fed.R.Civ.P. 37(d), (g) (award expenses when a party fails to respond to discovery requests or fails to participate in the framing of a discover}' plan); Fed.R.Civ.P. 41(b) (dismiss an action or claim of a party that fails to prosecute, to comply with the Federal Rules or to obey an order of the court); Fed.R.Civ.P. 45(f) (punish any person who fails to obey a subpoena); Fed.R.Civ.P. 56(g) (award expenses or contempt damages when a party presents an affidavit in a sum-maty judgment motion in bad faith or for the purpose of delay); Fed.R.Crim.P. 42 (procedures for criminal conlempt); Fed. R.App. P. 38 (power to award damages and costs for frivolous appeal). . Whether a fine is payable to the court — or as here, the United States — as opposed to the complainant is a relevant, although not necessarily determinative, factor in determining whether a sanction is punitive. See Hicks v. Feiock, 485 U.S. 624, 631-32, 108 S.Ct. 1423, 99 L.Ed.2d 721 (1988); see also Bingman v. Ward, 100 F.3d 653, 655-56 (9th Cir.1996); Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 779 (9th Cir.1983). . Many of the procedural protections applicable to criminal contempt proceedings are" }, { "docid": "22423309", "title": "", "text": "1988 and Title VII, then the period of time within which fee claims must be filed under the two statutes should not differ. Nor do we see any reason to apply a different time limitation to claims for attorney’s fees founded on the bad-faith exception to the American rule. We recognize that the Fifth Circuit, in contrast to our view, applies a ten-day limitation to motions for attorney’s fees predicated on the court’s inherent power to allow fees in instances of bad faith, but imposes no express time limit on motions for fees filed pursuant to § 1988. Compare Knighton v. Watkins, 616 F.2d 795, 797-98 (5th Cir. 1980) (§ 1988) with Stacy v. Williams, 446 F.2d 1366, 1367 (5th Cir. 1971) (bad-faith exception). We believe, however, practical considerations argue against this distinction. As illustrated by this case, a prevailing defendant in a multi-count action including a Title VII claim will file for an award of attorney’s fees on both statutory and equitable grounds and similar considerations will underlie the court’s determination of whether to allow fees under either or both theories. Thus, similar procedural rules should govern the timeliness of fee applications. . Rule 58 states in pertinent part: Entry of the judgment shall not be delayed for the taxing of costs. Rule 54(d) provides: (d) Costs. Except when express provision therefor is made either in a statute of the United States or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs; but costs against the United States, its officers, and agencies shall be imposed only to the extent permitted by law. Costs may be taxed by the clerk on one day’s notice. On motion served within 5 days thereafter, the action of the clerk may be reviewed by the court. . We recognize that the Supreme Court in Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978), attached significance to Congress’ characterization of attorney’s fees as part of the “costs\" allowable under § 1988. That characterization, however, occurred in the context of the Court’s" }, { "docid": "22384258", "title": "", "text": "Wash. 1941) (after taxing certain disputed costs against defendant, court noted that the costs could have been avoided by taking advantage of Rule 68); Nabors v. Texas Co., 32 F. Supp. 91, 92 (WD La. 1940) (a defendant may “save himself in the matter of costs if the recovery does not exceed what was tendered” if he proves that he made an offer of judgment). See also Scheriff v. Beck, 452 F. Supp. 1254 (Colo. 1978); Waters v. Heublein, Inc., 485 F. Supp. 110 (ND Cal. 1979). Justice Powell, concurring in the result. I agree with most of the views expressed in the dissenting opinion of Justice Rehnquist, and do not agree with the Court’s reading of Rule 68. It is anomalous indeed that, under the Court’s view, a defendant may obtain costs under Rule 68 against a plaintiff who prevails in part but not against a plaintiff who loses entirely. I nevertheless concur in the result reached by the Court because I do not think that the terms of the offer made in this case constituted a proper offer of judgment within the scope of Rule 68. I Rule 68 provides, in pertinent part: “At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against him for the money or property or to the effect specified in his offer, with costs then accrued” (emphasis added). In Title YII eases, the scope of “costs” is defined in the statute itself. Except in unusual circumstances, Title VII requires that a prevailing plaintiff receive “a reasonable attorney’s fee as part of the costs.” 42 U. S. C. § 2000e-5 (k) ; see Christiansburg Garment Co. v. EEOC, 434 U. S. 412, 416-417 (1978); Newman v. Piggie Park Enterprises, Inc., 390 U. S. 400, 401-402 (1968). We held last Term in Maher v. Gagne, 448 U. S. 122, 129 (1980), that a claim to an attorney’s fee is not weakened if the plaintiff prevails by “settlement rather than through litigation.” A Rule" }, { "docid": "21892805", "title": "", "text": "by the district court, the operative period for appeal from final judgment commenced with the entry of judgment on August 29, 1980. Hennessy v. Schmidt, 583 F.2d 302, 306 (7th Cir. 1978). Notice of appeal was filed November 5, 1980, well beyond the thirty day limit. Fed. R.App.P. 4(a)(1). This appeal is, therefore, Dismissed for want of jurisdiction. Dismissed. . Specifically, Hairline alleged violations of 15 U.S.C. §§ 1114, 1118 and 1125 (1980). . Ill.Rev.Stat. c. 140, § 22 (1980). . Hairline was issued its trademark in 1974 only after modifying its application in response to objections by the United States Patent Office that the mark was solely descriptive. Hairline described the mark as relating to the custom service of “hair replacement for men designed specifically to the exact contour of a customer.” Refalas alleged that Hairline brought suit against several hairstylers with business names similar to Hairline’s mark in an effort to# strengthen the mark by extending its actual use beyond the narrow confines of the registration. . Kefalas served the motion on Hairline’s attorneys September 25, 1980. The difference in dates between service and filing is immaterial to the issue on this appeal. . Fed.R.Civ.P. 54(d) provides: (d) Costs. Except when express provision therefor is made either in a statute of the United States or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs; but costs against the United States, its officers, and agencies shall be imposed only to the extent permitted by law. Costs may be taxed by the clerk on one day’s notice. On motion served within 5 days thereafter, the action of the clerk may be reviewed by the court. . Fed.R.Civ.P. 59(e) provides: (e) Motion To Alter Or Amend A Judgment. A motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment. . This is evidenced by 28 U.S.C. § 1920 (1981), which specifies what can be assessed as costs: A judge or clerk of any court of the United States may tax as" }, { "docid": "22704126", "title": "", "text": "attend at own deposition, serve answers to interrogatories, or respond to request for inspection), 37(g) (failure to participate in good faith in framing of a discovery plan), 56(g) (summary-judgment affidavits made in bad faith). Ante, at 9, citing Fulps v. Springfield, Tenn. 715 F. 2d 1088, 1091-1095 (CA6 1983); Waters v. Heublein, Inc., 485 F. Supp. 110, 113-117 (ND Cal. 1979); Scherijf v. Beck, 452 F. Supp. 1254, 1259-1260 (Colo. 1978). For cases to the contrary, see, e. g., Dowdell v. Apopka, Fla., 698 F. 2d 1181, 1188-1189, and n. 2 (CA11 1983); White v. New Hampshire Dept. of Employment Security, 629 F. 2d 697, 702-703 (CA1 1980), rev’d on other grounds, 455 U. S. 445 (1982); Piguead v. McLaren, 699 F. 2d 401, 403 (CA7 1983); Association for Retarded Citizens v. Olson, 561 F. Supp. 495, 498 (ND 1982), modified, 713 F. 2d 1384 (CA8 1983); Greenwood v. Stevenson, 88 F. R. D. 225, 231-232 (RI 1980). Rule 54(d) provides in full: “Except when express provision therefor is made either in a statute of the United States or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs; but costs against the United States, its officers, and agencies shall be imposed only to the extent permitted by law. Costs may be taxed by the clerk on one day’s notice. On motion served within 5 days thereafter, the action of the clerk may be reviewed by the court.” This is precisely how Rule 68 has been applied with respect to ordinary items of taxable costs. See generally 12 Wright & Miller §§3001, 3005; 7 Moore ¶ 68.06. Hensley v. Eckerhart, 461 U. S. 424, 429, n. 2 (1983). See also Hughes v. Rowe, 449 U. S. 5, 14-16 (1980) (per curiam); Christiansburg Garment Co. v. EEOC, 434 U. S. 412, 421 (1978); H. R. Rep. No. 94-1558, at 7. It also might be argued that a defendant may not recover postoffer attorney’s fees under the “plain language” of Rule 68 because he is not the “prevailing party” within the meaning of" }, { "docid": "10212319", "title": "", "text": "Practice & Procedure: Civil 2d § 2742, at 563 (1983). That observation is premised in large part on the practical significance of a court’s discretion to determine an absence of bad faith altogether. Once a court has found affidavits to have been presented in \"bad faith” or \"solely for the purpose of delay” (as the bankruptcy court in essence found here), the plain meaning of the Rule requires the assessment of costs and fees. See Fed.R.Civ.Pro. 56(g). . Bankruptcy Rule 7054(b) provides: (b) Costs The court may allow costs to the prevailing party except when a statute of the United States or these rules otherwise provides. Costs against the United States, its officers and agencies shall be imposed only to the extent permitted by law. Costs may be taxed by the clerk on one day's notice; on motion served within five days thereafter, the action of the clerk may be reviewed by the court. .We need not address whether § 727(a)(2)-(5) is a \"sanction\" in other contexts. Certainly, the provisions of § 727 deter some prepetition bad-faith conduct — such as fraudulent transfers or failure to keep records — but the section does not appear to have been drafted to deter the particular litigation abuses covered by Rules 9011 and 56(g). . For example, we cannot discern whether the debtors still owe Stuebben over eight hundred thousand dollars on a promissory note or if that amount was covered by a release of claims signed in 1987. (R. at 308.) . Although courts within the Third Circuit have not yet addressed a 7054(b) award of costs in a published opinion, we note that courts elsewhere have denied costs because of a complete absence of bad faith or frivolity, Turner v. Davis, Gillenwater & Lynch (In re Investment Bankers, Inc.), 135 B.R. 659, 670-71 (Bankr.D.Colo.1991), because of a prevailing party’s unnecessary multiplication of proceedings and meritless motions, Young v. Aviva Gelato, Inc. (In re Aviva Gelato, Inc.), 94 B.R. at 624, or because the party seeking costs was not technically a “prevailing party,” In re Robertson, 105 B.R. 504, 507 (Bankr.D.Minn.1989). Costs" }, { "docid": "22384257", "title": "", "text": "stopped the running of further costs by an offer of judgment under F. R. C. P. 68”); Cover v. Chicago Eye Shield Co., 136 F. 2d 374 (CA7) (defendant not liable for fees of master and court reporter where plaintiff recovered less than offer), cert. denied, 320 U. S. 749 (1943); Staffend v. Lake Central Airlines, Inc., 47 F. R. D. 218, 220 (ND Ohio 1969) (a defendant may “escape the imposition of further costs where the plaintiff does not eventually secure a judgment exceeding the offer”); Tansey v. Transcontinental & Western Air, Inc., 97 F. Supp. 458, 459 (DC 1949) (an offer that was not for a sum certain will not prevent the court from considering plaintiff’s costs thereafter incurred); Maguire v. Federal Crop Ins. Corp., 9 F. R. D. 240, 242 (WD La. 1949) (defendant cannot “escape” paying the plaintiff’s costs because offer was not properly formalized), aff’d in part and rev’d in part, 181 F. 2d 320 (CA5 1950); FDIC v. Fruit Growers Service Co., 2 F. R. D. 131, 133 (ED Wash. 1941) (after taxing certain disputed costs against defendant, court noted that the costs could have been avoided by taking advantage of Rule 68); Nabors v. Texas Co., 32 F. Supp. 91, 92 (WD La. 1940) (a defendant may “save himself in the matter of costs if the recovery does not exceed what was tendered” if he proves that he made an offer of judgment). See also Scheriff v. Beck, 452 F. Supp. 1254 (Colo. 1978); Waters v. Heublein, Inc., 485 F. Supp. 110 (ND Cal. 1979). Justice Powell, concurring in the result. I agree with most of the views expressed in the dissenting opinion of Justice Rehnquist, and do not agree with the Court’s reading of Rule 68. It is anomalous indeed that, under the Court’s view, a defendant may obtain costs under Rule 68 against a plaintiff who prevails in part but not against a plaintiff who loses entirely. I nevertheless concur in the result reached by the Court because I do not think that the terms of the offer made in this" }, { "docid": "22704078", "title": "", "text": "all costs properly awardable in an action are to be considered within the scope of Rule 68 “costs.” Thus, absent congressional expressions to the contrary, where the underlying statute defines “costs” to include attorney’s fees, we are satisfied such fees are to be included as costs for purposes of Rule 68. See, e. g., Fulps v. Springfield, Tenn., 715 F. 2d 1088, 1091-1095 (CA6 1983); Waters v. Heublein, Inc., 485 F. Supp. 110, 113-117 (ND Cal. 1979); Scheriff v. Beck, 452 F. Supp. 1254, 1259-1260 (Colo. 1978). See also Delta Air Lines, Inc. v. August, 450 U. S., at 362-363 (Powell, J., concurring). Here, respondent sued under 42 U. S. C. § 1983. Pursuant to the Civil Rights Attorney’s Fees Awards Act of 1976, 90 Stat. 2641, as amended, 42 U. S. C. § 1988, a prevailing party in a § 1983 action may be awarded attorney’s fees “as part of the costs.” Since Congress expressly included attorney’s fees as “costs” available to a plaintiff in a § 1983 suit, such fees are subject to the cost-shifting provision of Rule 68. This “plain meaning” interpretation of the interplay between Rule 68 and § 1988 is the only construction that gives meaning to each word in both Rule 68 and § 1988. Unlike the Court of Appeals, we do not believe that this “plain meaning” construction of the statute and the Rule will frustrate Congress’ objective in § 1988 of ensuring that civil rights plaintiffs obtain “‘effective access to the judicial process.’” Hensley v. Eckerhart, 461 U. S. 424, 429 (1983), quoting H. R. Rep. No. 94-1558, p. 1 (1976). Merely subjecting civil rights plaintiffs to the settlement provision of Rule 68 does not curtail their access to the courts, or significantly deter them from bringing suit. Application of Rule 68 will serve as a disincentive for the plaintiff’s attorney to continue litigation after the defendant makes a settlement offer. There is no evidence, however, that Congress, in considering § 1988, had any thought that civil rights claims were to be on any different footing from other civil claims insofar as" }, { "docid": "6414024", "title": "", "text": "for services rendered in responding to the above-mentioned motions. Plaintiff’s actions in continuing the fight to keep the School Board members in the lawsuit after the defendants’ motion for summary judgment was granted were clearly frivolous. Therefore, the Court will award attorney’s fees for defending these motions. The amount claimed here is $2,603.75. Next, defendants seek an award of fees for research time spent on claims that were not pursued by plaintiff. The Court has no way of assessing whether those claims were frivolous. Therefore, attorney’s fees will not be awarded. Finally, defendants have requested costs in the amount of $19,494.40 for their attorneys’ incidental expenses such as answering the complaint, attending depositions, preparation of interrogatories, research, and office work. These costs are normally taxable as part of an attorney fees award, but since the Court granted only a limited portion of defendants’ requested attorney’s fees, it will not award fees for these incidental services. B. Costs Defendants’ second request is for costs totalling $2,481.30. Federal Rules of Civil Procedure 54(d) provides for the assessment of costs as follows: Except when express provision therefor is made either in a statute of the United States or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs; but costs against the United States, its officers, and agencies shall be imposed only to the extent permitted by law. Costs may be taxed by the clerk on one day’s notice. On motion served within 5 days thereafter, the action of the clerk may be reviewed by the court. The costs which may be taxed are listed in 28 U.S.C. § 1920: A judge or clerk of any court of the United States may tax as costs the following: (1) Fees of the clerk and marshal; (2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case; (3) Fees and disbursements for printing and witnesses; (4) Fees for exemplification and copies of papers necessarily obtained for use in the case; (5) Docket fees under section" } ]

[ { "docid": "22445118", "title": "", "text": "by the Administrative Procedure Act, 5 U.S.C. § 706(2)(D) (1982). See Stop H-3 Association v. Dole, 740 F.2d 1442, 1461 (9th Cir.1984), cert. denied, 471 U.S. 1108, 105 S.Ct. 2344, 85 L.Ed.2d 859 (1985). Therefore, “[t]he adequacy of an EIS depends upon whether it was prepared in observance of the proce dure required by law.” State of California v. Block, 690 F.2d 753, 761 (9th Cir.1982). Under this standard, we employ a “rule of reason,” inquiring (1) “whether an EIS contains a ‘reasonably thorough discussion of the significant aspects of the probable environmental consequences,’ ” id. (quoting Trout Unlimited, Inc. v. Morton, 509 F.2d 1276, 1283 (9th Cir.1974), and (2) “whether the EIS’s form, content and preparation foster both informed decision-making and informed public participation.” Id.; see Stop H-3, 740 F.2d at 1461. “Once satisfied that the agency has taken this procedural and substantive ‘hard look’ at environmental consequences in the EIS, the court’s review is at an end.” Id. (citations omitted). IV. SCOPE OF REVIEW AND DISCOVERY The district court limited the scope of its review to the administrative record and prohibited discovery unless the Council provided the court with adequate justification regarding the discovery request. Generally, judicial review of agency action is limited to review of the administrative record. Friends of the Earth v. Hintz, 800 F.2d 822, 828 (9th Cir.1986). In Florida Power & Light Co. v. Lorion, 470 U.S. 729, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985), the Supreme Court emphasized that when reviewing administrative decisions: “[T]he focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” The task of the reviewing court is to apply the appropriate APA standard of review, 5 U.S.C. § 706, to the agency decision based on the record the agency presents to the reviewing court. Id. at 743-44, 105 S.Ct. at 1607 (quoting Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973)). This standard is applicable to review of agency action under NEPA. Hintz, 800 F.2d at 829. However, certain circumstances" } ]

[ { "docid": "15197632", "title": "", "text": "analysis into de novo review, a level of review for which this court is not authorized. See 5 U.S.C. § 706 (establishing standard of review for agency action). Rather, the appropriate procedure is to submit the new information to the Corps so that it can reconsider the decision to issue the permit. (In fact, ACC has done exactly that — request that the Corps reconsider the permitting decision.) Consequently, to the extent that Dr. Hockaday’s declaration contains extra-record information, it is stricken. Rybachek v. EPA 904 F.2d 1276, 1296 (9th Cir.1990) (quoting Pacific Fisheries that it is not “appropriate ... for either party to use post-decision information as a new rationalization either for sustaining or attacking the Agency’s decision”); Asarco, Inc. v. EPA 616 F.2d 1153, 1160 (9th Cir.1980) (“Consideration of the evidence to determine the correctness or wisdom of the agency’s decision is not permitted.”). The Port also has submitted extra-record information. Exhibit E of Laurie Beale’s declaration consists of extra pages from a Washington Department of Ecology report on background soil concentrations for various metals. Apparently, only the report’s executive summary was included in the record. ACC objects to this submission on the basis that the selected pages now being submitted comprise extra-record information. Such a submission, however, falls well within the exceptions provided for by the Ninth Circuit. It is evident from the presence of the executive summary in the record that the Corps considered the report. Extra-record information regarding documents that the agency relies on but were not included in the record is admissible. S.W. Center for Biological Diversity v. United States Forest Service, 100 F.3d 1443, 1450 (9th Cir. 1996). Accordingly, the court denies ACC’s motion to strike this exhibit. C. Corps’ decision to issue permit ACC contends that the Corps’ decision to issue the 404 permit was arbitrary and capricious because (1) the Corps failed to incorporate into the permit various conditions placed on the project by the state Pollution Control Hearing Board (“PCHB”); (2) the Corps failed to issue a supplemental environmental impact statement regarding new information about future aircraft operations at the" }, { "docid": "20039460", "title": "", "text": "the Endangered Species Act under the “arbitrary and capricious” standard of the Administrative Procedure Act. Id. (citing 5 U.S.C. § 706(2)(A)). An “agency’s interpretation of the meaning of its own categorical exclusion should be given controlling weight unless plainly erroneous or inconsistent with the terms used in the regulation.” Alaska Ctr. for the Env’t v. U.S. Forest Serv., 189 F.3d 851, 857 (9th Cir.1999). Similarly, an agency’s “no effect” determination under, the Endangered Species Act must be upheld unless arbitrary and capricious. Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1448 (9th Cir.1996). Ninth Circuit jurisprudence distinguishes between the level of deference afforded to agency decisions that are primarily legal in nature and that afforded to decisions that are factual. Alaska Wilderness Recreation & Tourism Ass’n v. Morrison, 67 F.3d 723, 727 (9th Cir.1995) (‘We find that it makes sense to distinguish the strong level of deference we accord an agency in deciding factual or technical matters from that to be accorded in disputes involving predominately legal questions.”); see Northcoast Envtl. Ctr. v. Glickman, 136 F.3d 660, 667 (9th Cir.1998) (holding that “the less deferential standard of ‘reasonableness’ applies to threshold agency decisions that certain activities are not subject to NEPA’s procedures”). In the Ninth Circuit, “[a]n agency’s threshold decision that certain activities are not subject to NEPA is reviewed for reasonableness.” Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 1062, 1070 (9th Cir.2002) (citing Northcoast, 136 F.3d at 667). The Supreme Court has noted, however, that “the difference between the ‘arbitrary and capricious’ and ‘reasonableness’ standards is not of great pragmatic consequence.” Marsh v. Or. Natural Res. Council, 490 U.S. 360, 377 n. 23, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). II We now turn to the merits of the plaintiffs’ National Environmental Policy Act and Endangered Species Act claims and to the appropriateness of the remedy crafted by the district court. A The National Environmental Policy Act “is our basic national charter for protection of the environment.” N. Idaho Cmty. Action Network v. U.S. Dep’t of Transp., 545 F.3d 1147, 1153 (9th Cir.2008)" }, { "docid": "18279564", "title": "", "text": "1242 (10th Cir.2004). It is only in “extremely limited circumstances, such as where the agency ignored relevant factors it should have considered or considered factors left out of the formal record” that we will consider extra-record evidence. Id. (internal quotations omitted). We may also delve outside the administrative record when there is a “strong showing of bad faith or improper behavior.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). In dealing with scientific and technical evidence, extra-record evidence “may illuminate whether an [environmental impact statement] has neglected to mention a serious environmental consequence, failed adequately to discuss some reasonable alternative, or otherwise swept stubborn problems or serious criticism ... under the rug.” Lee, 354 F.3d at 1242 (internal quotations omitted). We review a district court’s determination of whether or not to exclude extra-record evidence for abuse of discretion. Valley Cmty. Pres. Comm’n v. Mineta, 373 F.3d 1078, 1089 n. 2 (10th Cir.2004) (citing Northcoast Envtl. Ctr. v. Glickman, 136 F.3d 660, 665 (9th Cir.1998)). To support its claim the administrative record should be supplemented, Citizens contends water flow data for the Magenta was concealed and misrepresented. Relying on the allegations contained in Dr. Phillips’s 1999 affidavit, Citizens claims the studies based on this misrepresentation led the government to wrongly assume the Culebra was the most transmissive geological layer in the storage facility’s proximity. As a result, DOE decided it need not model the transmissive properties of the Magenta layer. Citizens argues that Dr. Phillips’s charges satisfy its obligation to make “a strong showing that DOE engaged in bad faith and improper conduct,” and therefore additional evidence should be .produced in the administrative record. Aplt. Brief at 19. We disagree. Upon examining Dr. Phillips’s affidavit, we find nothing to justify the inclusion of extra-record evidence to demonstrate gaps or inadequacies in the SEIS-II. Dr. Phillips makes two claims of misrepresentation. First, he asserts he discovered a document as part of his research that evidences tampering with a hydrology report relied on by DOE. He supports this allegation by pointing to" }, { "docid": "1422038", "title": "", "text": "agency decision-makers. Thompson v. U.S. Dep’t of Labor, 885 F.2d 551, 555 (9th Cir.1989). Four exceptions to this rule are generally considered for supplementation of an administrative record: (1) when necessary to determine whether the agency has considered all relevant factors and explained its decision, (2) when the agency has relied on documents not in the record, (3) when supplementing the record is necessary to explain technical terms or complex subject matter, or (4) when plaintiffs make a showing of agency bad faith. Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv., 450 F.3d 930, 943 (9th Cir. 2006) (citing Southwest Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1450 (9th Cir.1996)). Supplementation of the record with non-agency materials may be appropriate when reviewing an ESA citizen-suit failure-to-consult claim. See Western Watersheds Project v. Kraayenbrink, 632 F.3d 472, 497 (9th Cir.2011)(district court may review material outside the record when reviewing ESA claim). Courts within this district have held that Kraayenbrink leaves us uncertain whether the panel discarded the APA record review rule entirely or simply found that the extra-record documents presented to the district court in that case fit within one of the four standard exceptions outlined above. The better view, in the opinion of this Court, is that the traditional four exceptions still apply to plaintiffs’ requests for supplementation of the administrative record for ESA claims, but the narrowness of the construction and application of these exceptions, see Lands Council v. Powell, 395 F.3d 1019, 1030 (9th Cir.2005) (“these exceptions are narrowly construed and applied”), should be relaxed for such claims. Alliance for the Wild Rockies v. United States Dept. of Agriculture, CV 11-76-M-CCL, doc. 64 at 6 (July 23, 2013). This Court agrees that the four exceptions outlined above apply here, and Plaintiffs have not met their burden of demonstrating the proposed supplemental materials should be considered under any exception. Exhibit 3 is an October 16, 2011 Helena Independent Record newspaper article discussing a possible grizzly bear sighting near Helena, Montana. It was not considered in the decision to approve the project, but the" }, { "docid": "18279563", "title": "", "text": "upheld DOE’s record of decision. The court concluded (1) the decision was not arbitrary and capricious, and (2) there was no reason to consider the proffered extra-record materials in its review. In particular, the court carefully reviewed a number of charges by Citizens that SEIS-II was inadequate in the way it analyzed the facility’s hydrology, geology, and possible release scenarios. The court, while acknowledging the scientific debate surrounding many of the issues, ultimately found support in the administrative record for the decisions made by DOE. On appeal, Citizens has narrowed the issues to the following: (1) the district court should have admitted extra-record evidence regarding allegations of tampering with and miscalculation of data involving groundwater studies in the Magenta formation; and (2) DOE was arbitrary and capricious in its evaluation of the record by not further investigating the properties of the Magenta based on the allegations raised by Dr. Phillips. II. Discussion A. Extra-Record Evidence Judicial review of agency action is normally restricted to the administrative record. Lee v. U.S. Air Force, 354 F.3d 1229, 1242 (10th Cir.2004). It is only in “extremely limited circumstances, such as where the agency ignored relevant factors it should have considered or considered factors left out of the formal record” that we will consider extra-record evidence. Id. (internal quotations omitted). We may also delve outside the administrative record when there is a “strong showing of bad faith or improper behavior.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). In dealing with scientific and technical evidence, extra-record evidence “may illuminate whether an [environmental impact statement] has neglected to mention a serious environmental consequence, failed adequately to discuss some reasonable alternative, or otherwise swept stubborn problems or serious criticism ... under the rug.” Lee, 354 F.3d at 1242 (internal quotations omitted). We review a district court’s determination of whether or not to exclude extra-record evidence for abuse of discretion. Valley Cmty. Pres. Comm’n v. Mineta, 373 F.3d 1078, 1089 n. 2 (10th Cir.2004) (citing Northcoast Envtl. Ctr. v. Glickman, 136 F.3d 660, 665 (9th Cir.1998))." }, { "docid": "281160", "title": "", "text": "a few limited circumstances. Id.; see Tr. of Proceeding Mot. to Admit Expert Test. vol. 1, at 12, EOF No. 695 [hereinafter Expert Tr. vol. 1]; id. at 14-15 (describing the Lands Council exceptions). The question here is whether the district court properly applied Lands Council, or whether it went beyond Lands Council to improperly question NMFS’s scientific determinations. We hold, based in part on our opinion in Delta Smelt, 747 F.3d at 602-04, that the district court went beyond the Lands Council exceptions when it admitted extra-record declarations and substituted the analysis in those declarations for that provided by NMFS. In general, a court reviewing agency action under the APA must limit its review to the administrative record. See Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973). We have applied this rule many times, in many different contexts. See, e.g., Delta Smelt, 747 F.3d at 602-04 (stating the rule and applying it to strike extra-record declarations admitted by the district court); Fence Creek Cattle Co. v. U.S.F.S., 602 F.3d 1125, 1131 (9th Cir.2010) (“Generally, judicial review of an agency decision is limited to the administrative record on which the agency based the challenged decision.”); Sw. Ctr. for Biological Diversity v. U.S.F.S., 100 F.3d 1443, 1450 (9th Cir.1996) (“Judicial review of an agency decision typically focuses on the administrative record in existence at the time of the decision and does not encompass any part of the record that is made initially in the reviewing court.”); Asarco, Inc. v. E.P.A., 616 F.2d 1153, 1159 (9th Cir.1980) (“[Ajgency action must be examined by scrutinizing the administrative record at the time the agency made its decision.”). This rule ensures that the reviewing court affords sufficient deference to the agency’s action. The APA gives an agency substantial discretion “to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.” Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 1861, 104 L.Ed.2d 377 (1989). “When a reviewing court considers evidence" }, { "docid": "19622585", "title": "", "text": "careful, however, not to substitute their own judgment for that of the agency. Suffolk Cty. v. Sec'y of Interior , 562 F.2d 1368, 1383 (2d Cir. 1977). Ultimately, a reviewing court may uphold agency action \"only on the grounds that the agency invoked when it took the action.\" Michigan v. EPA , --- U.S. ----, 135 S.Ct. 2699, 2710, 192 L.Ed.2d 674 (2015). Post hoc rationalizations may not be considered. American Textile Mfrs. Inst., Inc. v. Donovan , 452 U.S. 490, 539, 101 S.Ct. 2478, 69 L.Ed.2d 185 (1981). B. Scope of Review In evaluating an APA claim, courts \"typically\" limit their review to the Administrative Record existing at the time of the decision. Sw. Ctr. for Biological Diversity v. U.S. Forest Service , 100 F.3d 1443, 1450 (9th Cir. 1996) ; accord Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v. U.S. Dep't of Agric. , 499 F.3d 1108, 1117 (9th Cir. 2007). \"Under limited circumstances, however, extra-record evidence can be admitted and considered.\" Ranchers Cattlemen , 499 F.3d at 1117. These exceptions include: (1) when plaintiffs make a showing of agency bad faith, or (2) when the agency failed to consider \"all relevant factors\" of the decision. Id. 1. Use of Extra-Record Evidence to Evaluate Plaintiffs' Pretext Argument A court may consider extra-record evidence that is relevant to the reason for an agency action where there has been a strong showing of bad faith or improper behavior by the decision-makers. Public Power Council v. Johnson , 674 F.2d 791, 795 (9th Cir. 1982) ; Ranchers Cattlemen , 499 F.3d at 1117. In such circumstances, consideration of extra-record evidence is \"necessary to a meaningful judicial review\" of the agency's actual decision-making process. Tummino v. Torti , 603 F.Supp.2d 519, 543 (E.D.N.Y. 2009). As discussed in greater detail in Part IV.C.12, infra , the Administrative Record alone provides a \"strong showing\" of bad faith which authorizes this Court to look outside the record for further evidence of pretext. That is particularly true here, where the Administrative Record includes pre-decision communications between Secretary Ross and his \"point person\" on the" }, { "docid": "8743777", "title": "", "text": "district court’s orders in a footnote does not meet this standard. See id. By not properly raising the issue in its opening brief, Western Watersheds waived any challenge to these district court orders. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.1999). We also agree with the district court that BLM did not consider the challenged evidence in developing the Breaks Resource Plan, the Breaks EIS, or the EA for the Woo-dhawk Allotment, and that the evidence did not meet any exception for supplementing the record, See Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1450 (9th Cir.1996). We therefore grant the motion to strike the extra-record evidence submitted by Western Watersheds and any reference to this evidence in Western Watersheds's opening and reply briefs. Moreover, we decline to take judicial notice of these documents, as urged by Western Watersheds, because the documents contain observations and conclusions that are not “geiierally known” or ''accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b). . Because § 1732(a) incorporates the Proclamation's terms, we need not consider whether the Proclamation itself is subject to judicial review. See City of Carmel-By-The-Sea v. U.S. Dep’t of Transp., 123 F.3d 1142, 1166 (9th Cir.1997) (determining whether Executive Orders were subject to judicial review). . Western Watersheds also contends that BLM’s interpretation conflicts with agency guidance and a draft resource management plan implementing a similar presidential proclamation. We decline to review these documents. The agency guidance was issued after the Breaks Resource Plan and “may not be advanced as a new rationalization” for attacking BLM’s interpretation. Sw. Ctr. for Biological Diversity, 100 F.3d at 1450. Likewise, the district court refused to take judicial notice of the draft resource management plan because it constituted extra-record evidence, and we decline to review that evidence when that issue was waived on appeal. See supra note 2. . A potential-natural-community standard would require BLM to manage the allotment to achieve plant communities “representing the latest successional stage attainable on a specific, hydrological included surface.” According to Western Watersheds, this is a" }, { "docid": "21289093", "title": "", "text": "is arbitrary and capricious because it is based on faulty assumptions about the efficacy of the American and Canadian feed and import restrictions. As we evaluate each argument under this claim, we will consider whether R- CALF’s new evidence is relevant to our review. It is an established rule that “the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973). Under limited circumstances, however, extra-record evidence can be admitted and considered. At the district court level, extra-record evidence is admissible if it fits into one of four “narrow” exceptions: (1) if admission is necessary to determine whether the agency has considered all relevant factors and has explained its decision, (2) if the agency has relied on documents not in the record, (3) when supplementing the record is necessary to explain technical terms or complex subject matter, or (4) when plaintiffs make a showing of agency bad faith. Southwest Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1450 (9th Cir.1996) (internal punctuation omitted). R-CALF also relies heavily on one statement in the case law that extra-record information might be admitted if it tends to show that the agency relied on assumptions that were “entirely fictional or utterly without scientific support.” Ass’n of Pac. Fisheries v. E.P.A., 615 F.2d 794, 812 (9th Cir.1980). In Asarco, Inc. v. U.S. E.P.A., 616 F.2d 1153 (9th Cir.1980), the benchmark case on this issue in this circuit, the district court had held a four-day hearing, which included testimony from two experts who had not helped the agency make the challenged decision. This court disapproved because this testimony was “plainly elicited for the purpose of determining the scientific merit of the EPA’s decision.” Id. at 1161. Considering evidence outside this record is inappropriate, we explained, because it “inevitably leads the reviewing court to substitute its judgment for that of the agency.” Id. at 1160. Under the APA, courts must refrain from de novo review of the" }, { "docid": "21443738", "title": "", "text": "fall within well-established exceptions to the rule limiting judicial review to the administrative record. The Secretaries, on the other hand, counter that NEC failed to show that its exhibits were considered by agency officials with decision-making authority at the time the POC Programs were developed and that several of NEC’s exhibits postdate the completed FS Action Plan and BLM Management Guidelines. Moreover, while acknowledging that “several narrow circumstances” allow consideration of extra-record material, the Secretaries claim that NEC failed to establish how any of its exhibits qualify for any of the exceptions. The Secretaries also contend that even if exclusion of the exhibits was improper their exclusion was merely harmless error because the district court previously concluded that the exhibits would have no impact on its decision. While realizing that it was authorized to look beyond the administrative record, the district court declined to do so for three reasons. First, the court found that it was unnecessary to go beyond the record to determine whether the POC Program was a final agency action. Next, the court reasoned that it was unnecessary to go beyond the administrative record to decide whether the adoption of the Action Plan and Guidelines triggered NEPA procedures. Finally, finding that many of the Plaintiffs’ exhibits duplicated material already found in the agency record, the court struck these exhibits as cumulative. 1. Standard of Review We review the district court’s decision to exclude extra-record evidence for an abuse of discretion. Southwest Center for Biological Diversity v. U.S. Forest Service, 100 F.3d 1443, 1447 (9th Cir.1996). 2. Extra-record Evidence We allow consideration of extra-record materials in four circumstances: (1) if necessary to determine “whether the agency has considered all relevant factors and has explained its decision,” (2) “when the agency has relied on documents not in the record,” or (3) “when supplementing the record is necessary to explain technical terms or complex subject matter,” and (4) “when the plaintiffs make a showing of agency bad faith.” Southwest Center, 100 F.3d at 1450. NEC arguably points to the second exception when they state that the excluded exhibits “are agency" }, { "docid": "8743776", "title": "", "text": "11-35818, and The Wilderness Society v. Bureau of Land Management, 11-35821, were consolidated on appeal and heard by this panel on the same day as this case. . On appeal, Intervenors-Appellees’ moved to strike portions of Western Watersheds’s 'excerpts of record and references to those documents in the opening brief. The district court had refused to consider this evidence, first by denying Western Watershed's motion to compel supplementation of the administrative record and second by granting BLM’s motion to strike the extra-record evidence submitted by Western Watersheds. We review a district court's ruling on a motion to strike for abuse of discretion. El Pollo Loco, Inc. v. Hashim, 316 F.3d 1032, 1038 (9th Cir.2003). Western Watersheds raised the issue of the excluded evidence in a two-sentence footnote to the facts section of their opening brief. Parties must clearly articulate in their opening brief any issues that they intend to raise on appeal. Christian Legal Soc’y Chapter of Univ. of Cal. v. Wu, 626 F.3d 483, 485 (9th Cir.2010) (order). Western Watershed's minimal discussion of the district court’s orders in a footnote does not meet this standard. See id. By not properly raising the issue in its opening brief, Western Watersheds waived any challenge to these district court orders. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.1999). We also agree with the district court that BLM did not consider the challenged evidence in developing the Breaks Resource Plan, the Breaks EIS, or the EA for the Woo-dhawk Allotment, and that the evidence did not meet any exception for supplementing the record, See Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1450 (9th Cir.1996). We therefore grant the motion to strike the extra-record evidence submitted by Western Watersheds and any reference to this evidence in Western Watersheds's opening and reply briefs. Moreover, we decline to take judicial notice of these documents, as urged by Western Watersheds, because the documents contain observations and conclusions that are not “geiierally known” or ''accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b). . Because §" }, { "docid": "19622584", "title": "", "text": "Plaintiffs' injuries by diminishing the funds that they would need to be expended on census outreach and by ensuring that Plaintiffs do not lose federal funding or, in the case of California, political representation because of the citizenship question. In sum, both the San Jose Plaintiffs and the California Plaintiffs have carried the burden of establishing all three of the standing requirements. IV. APA CLAIM A. Legal Standard Under section 706 of the APA, a reviewing court must \"hold unlawful and set aside agency action, findings, and conclusions found to be...arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; contrary to constitutional right, power, privilege, or immunity; in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; [or] without observance of procedure required by law.\" 5 U.S.C. § 706(2)(A)-(D). Accordingly, the decision-making process that ultimately leads to the agency action must be \"logical and rational.\" Allentown Mack Sales & Serv., Inc. v. NLRB , 522 U.S. 359, 374, 118 S.Ct. 818, 139 L.Ed.2d 797 (1998). Courts should be careful, however, not to substitute their own judgment for that of the agency. Suffolk Cty. v. Sec'y of Interior , 562 F.2d 1368, 1383 (2d Cir. 1977). Ultimately, a reviewing court may uphold agency action \"only on the grounds that the agency invoked when it took the action.\" Michigan v. EPA , --- U.S. ----, 135 S.Ct. 2699, 2710, 192 L.Ed.2d 674 (2015). Post hoc rationalizations may not be considered. American Textile Mfrs. Inst., Inc. v. Donovan , 452 U.S. 490, 539, 101 S.Ct. 2478, 69 L.Ed.2d 185 (1981). B. Scope of Review In evaluating an APA claim, courts \"typically\" limit their review to the Administrative Record existing at the time of the decision. Sw. Ctr. for Biological Diversity v. U.S. Forest Service , 100 F.3d 1443, 1450 (9th Cir. 1996) ; accord Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v. U.S. Dep't of Agric. , 499 F.3d 1108, 1117 (9th Cir. 2007). \"Under limited circumstances, however, extra-record evidence can be admitted and considered.\" Ranchers Cattlemen , 499 F.3d at 1117. These exceptions" }, { "docid": "281161", "title": "", "text": "602 F.3d 1125, 1131 (9th Cir.2010) (“Generally, judicial review of an agency decision is limited to the administrative record on which the agency based the challenged decision.”); Sw. Ctr. for Biological Diversity v. U.S.F.S., 100 F.3d 1443, 1450 (9th Cir.1996) (“Judicial review of an agency decision typically focuses on the administrative record in existence at the time of the decision and does not encompass any part of the record that is made initially in the reviewing court.”); Asarco, Inc. v. E.P.A., 616 F.2d 1153, 1159 (9th Cir.1980) (“[Ajgency action must be examined by scrutinizing the administrative record at the time the agency made its decision.”). This rule ensures that the reviewing court affords sufficient deference to the agency’s action. The APA gives an agency substantial discretion “to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.” Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 1861, 104 L.Ed.2d 377 (1989). “When a reviewing court considers evidence that was not before the agency, it inevitably leads the reviewing court to substitute its judgment for that of the agency.” Asarco, 616 F.2d at 1160. In so imposing its judgment, the reviewing court effectively conducts a de novo review of the agency’s action rather than limiting itself to the deferential procedural review that the APA’s arbitrary or capricious standard permits. See River Runners for Wilderness v. Martin, 593 F.3d 1064, 1070 (9th Cir.2010) (per curiam). But we have also recognized several exceptions to this rule. Under Lands Council, a reviewing court may consider extra-record evidence where admission of that evidence (1) is necessary to determine “ ‘whether the agency has considered all relevant factors and has explained its decision,’ ” (2) is necessary to determine whether “ ‘the agency has relied on documents not in the record,’ (3) ‘when supplementing the record is necessary to explain technical terms or complex subject matter,’ or (4) ‘when plaintiffs make a showing of agency bad faith.’ ” 395 F.3d at 1030 (quoting Sw. Ctr. for Biological Diversity" }, { "docid": "13437279", "title": "", "text": "The Deputy Forest Supervisor also denied all of Fence Creek’s challenges regarding the factfinding procedures employed by the Forest Service. Fence Creek then sought review through a second-level appeal. The Regional Forester affirmed the Forest Service’s cancellation of the Log Creek and Chesnimnus allotments for reasons similar to those identified in the first-level appeal. Because Fence Creek had exhausted its administrative remedies, it filed a complaint in the District of Oregon alleging violations of the APA and statutory and constitutional due process guarantees. Fence Creek sought to expand the administrative record by adding Forest Service files from twenty-five other grazing cases, and both parties filed motions for summary judgment. The district court refused to expand the administrative record, and then granted the Forest Service’s motion for summary judgment, concluding that the Forest Service provided Fence Creek all the due process required under the APA, and that the Forest Service’s decision was not arbitrary and capricious. Fence Creek timely filed a Notice of Appeal, giving us jurisdiction under 28 U.S.C. § 1291. II Generally, judicial review of an agency decision is limited to the administrative record on which the agency based the challenged decision. Lands Council v. Powell, 395 F.3d 1019, 1029 (9th Cir.2005). We allow expansion of the administrative record in four narrowly construed circumstances: (1) supplementation is necessary to determine if the agency has considered all factors and explained its decision; (2) the agency relied on documents not in the record; (3) supplementation is needed to explain technical terms or complex subjects; or (4) plaintiffs have shown bad faith on the part of the agency. Id. at 1030. We review a district court’s decision not to expand the administrative record for an abuse of discretion. See Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1447 (9th Cir.1996). The files Fence Creek wished to include concerned twenty-five grazing permits that were not cancelled by the Forest Service despite being deficient. The district court denied Fence Creek’s request because it found the administrative record was complete and that Fence Creek did not make an adequate showing of" }, { "docid": "13437280", "title": "", "text": "of an agency decision is limited to the administrative record on which the agency based the challenged decision. Lands Council v. Powell, 395 F.3d 1019, 1029 (9th Cir.2005). We allow expansion of the administrative record in four narrowly construed circumstances: (1) supplementation is necessary to determine if the agency has considered all factors and explained its decision; (2) the agency relied on documents not in the record; (3) supplementation is needed to explain technical terms or complex subjects; or (4) plaintiffs have shown bad faith on the part of the agency. Id. at 1030. We review a district court’s decision not to expand the administrative record for an abuse of discretion. See Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1447 (9th Cir.1996). The files Fence Creek wished to include concerned twenty-five grazing permits that were not cancelled by the Forest Service despite being deficient. The district court denied Fence Creek’s request because it found the administrative record was complete and that Fence Creek did not make an adequate showing of necessity or explain its failure to supplement the record before the agency. On appeal, Fence Creek argues that the proffered material would “advance the intuitive notion that the Forest Service dramatically over-reacted[sic].” We interpret Fence Creek’s argument as an attempt to supplement the record in order to establish bad faith by the Forest Service. However, as discussed more thoroughly below, the Forest Service’s decision to cancel Fence Creek’s grazing permit for the Chesnimnus and Log Creek allotments was justified. Fence Creek has not shown that review of agency files of twenty-five unrelated grazing permits and actions taken concerning those permits would demonstrate that the Forest Service acted in bad faith in this specific case. Fence Creek has not met its heavy burden to show that the additional materials sought are necessary to adequately review the Forest Service’s decision here. As we said in Lands Council, 395 F.3d at 1030, “[t]hese limited exceptions operate to identify and plug holes in the administrative record.” Fence Creek has failed to show any such gaps or holes. We think" }, { "docid": "21951141", "title": "", "text": "operating with a serious backlog of mandatory duties, resulting in a diversion of scarce resources away from conservation efforts. Based on this analysis, we defer to the agency interpretation of the regulations and conclude that the Service is not required to ensure compliance with federal and state law before issuing an ITS. IV Finally, we address the district court’s decision to strike fifteen exhibits offered by CBD because the documents were not part of the administrative record. When reviewing an agency decision, “the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973); see also Sw. Ctr. for Biological Diversity v. United States Forest Serv., 100 F.3d 1443, 1450 (9th Cir.1996) (citing Camp). Parties may not use “post-decision information as a new rationalization either for sustaining or attacking the Agency’s decision.” Ass’n of Pac. Fisheries v. EPA, 615 F.2d 794, 811-12 (9th Cir.1980). We have recognized four exceptions to this rule, allowing extra-record materials (1) if necessary to determine whether the agency has considered all relevant factors and has explained its decision, (2) when the agency has relied on documents not in the record, [ ] (3) when supplementing the record is necessary to explain technical terms or complex subject matter, [or] ... (4) when plaintiffs make a showing of agency bad faith. Sw. Center, 100 F.3d at 1450(internal quotation marks omitted). CBD has not alleged agency bad faith or that the Service relied on documents not in the record. CBD claims that the documents it offered were submitted for their persuasive force to explain the term “take” under state law and to show that the Service failed to consider a relevant factor during its deliberations. We normally refuse to consider evidence that was not before the agency because “it inevitably leads the reviewing court to substitute its judgment for that of the agency.” Asarco, Inc. v. EPA 616 F.2d 1153, 1160(9th Cir.1980). When an agency’s inquiry is inadequate, we generally “remand the" }, { "docid": "21443739", "title": "", "text": "court reasoned that it was unnecessary to go beyond the administrative record to decide whether the adoption of the Action Plan and Guidelines triggered NEPA procedures. Finally, finding that many of the Plaintiffs’ exhibits duplicated material already found in the agency record, the court struck these exhibits as cumulative. 1. Standard of Review We review the district court’s decision to exclude extra-record evidence for an abuse of discretion. Southwest Center for Biological Diversity v. U.S. Forest Service, 100 F.3d 1443, 1447 (9th Cir.1996). 2. Extra-record Evidence We allow consideration of extra-record materials in four circumstances: (1) if necessary to determine “whether the agency has considered all relevant factors and has explained its decision,” (2) “when the agency has relied on documents not in the record,” or (3) “when supplementing the record is necessary to explain technical terms or complex subject matter,” and (4) “when the plaintiffs make a showing of agency bad faith.” Southwest Center, 100 F.3d at 1450. NEC arguably points to the second exception when they state that the excluded exhibits “are agency documents concerning the POC Program and were, as evident from the documents themselves, ‘considered’ in defendants’ decision.” NEC claims that it is both “necessary and appropriate for plaintiffs to supplement the record with additional agency documents evidencing the existence, nature, and scope of the agency’s actions.” Judicial review of agency action is generally limited to review of the administrative record. See 5 U.S.C. § 706; Animal Defense Council v. Hodel, 840 F.2d 1432, 1436 (9th Cir.1988). However, where the issue is alleged agency inaction, we believe the scope of review in cases, such as this one, is broader, particularly where the issue is whether an agency’s activities have triggered NEPA’s procedures. A broader scope of review is necessary because there will generally be little, if any, record to review. Because NEPA is essentially a procedural statute, an agency’s actions under NEPA are generally reviewed to determine if the agency observed the appropriate procedural requirements. LaFlamme v. F.E.R.C., 852 F.2d 389, 399 (9th Cir.1988) citing 5 U.S.C. § 706(2)(D). Although it certainly would have been proper" }, { "docid": "10792709", "title": "", "text": "to remand to the agency for additional investigation or explanation. The reviewing court is not generally empowered to conduct a de novo inquiry into the matter being reviewed and to reach its own conclusions based on such an inquiry.... The factfinding capacity of the district court is thus typically unnecessary to judicial review of agency decisionmak-ing. Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985). See also Citizens to Preserve Overton Park, 401 U.S. at 419-20, 91 S.Ct. 814. There is a danger when a reviewing court goes beyond the record before the agency. “When a reviewing court considers evidence that was not before the agency, it inevitably leads the reviewing court to substitute its judgment for that of the agency.” Asarco, Inc. v. EPA 616 F.2d 1153, 1160 (9th Cir.1980). See Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1450 (9th Cir.1996) (“Judicial review of an agency decision typically focuses on the administrative record in existence at the time of the decision and does not encompass any part of the record that is made initially in the reviewing court.”). Accordingly, we do not review “the evidence to determine the correctness or wisdom of the agency’s decision ... even if the court has also examined the administrative record.” Asar- co, 616 F.2d at 1160. If the reviewing court cannot find substantial evidence in the record, it should “not compensate for the agency’s dereliction by undertaking its own inquiry into the merits,” id., but should remand to the agency for further proceedings, see INS v. Ventura, 537 U.S. 12, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002). “We have, however, crafted narrow exceptions to this general rule.” Lands Council v. Powell, 395 F.3d 1019,1030 (9th Cir.2005). As we have explained, [w]e allow expansion of the administrative record in four narrowly construed circumstances: (1) supplementation is necessary to determine if the agency has considered all factors and explained its decision; (2) the agency relied on documents not in the' record; (3) supplementation is needed to explain technical terms or" }, { "docid": "19565433", "title": "", "text": "v. EPA , 616 F.2d 1153, 1160 (9th Cir. 1980) (\"It will often be impossible, especially when highly technical matters are involved, for the court to determine whether the agency took into consideration all relevant factors unless it looks outside the record to determine what matters the agency should have considered but did not.\"). Indeed, without looking to evidence beyond the administrative record to determine the relevant factors, a court may be unable to identify, let alone redress, the most egregious APA violations: those in which the administrative record is carefully cultivated to exclude contrary evidence. See also, e.g., Nat'l Audubon Soc. v. Hoffman , 132 F.3d 7, 15 (2d Cir. 1997) (noting that \"[t]he omission of technical scientific information is often not obvious from the record itself\"). Finally, it is well established that courts reviewing the substantive validity of agency action may consider additional material beyond the administrative record - extra-record material going to the reasons for the agency's action - where there has been a \"strong showing\" that the agency has acted in \"bad faith.\" Id. at 14 (\"[A]n extra-record investigation by the reviewing court may be appropriate when there has been a strong showing in support of a claim of bad faith or improper behavior on the part of agency decisionmakers ....\" (citing Overton Park , 401 U.S. at 420, 91 S.Ct. 814 ) ); Nat'l Nutritional Foods Ass'n v. FDA , 491 F.2d 1141, 1145 (2d Cir. 1974) (Friendly, J.) (holding that \"testimony with regard to [an agency's] reasons,\" or \"with regard to internal agency deliberations\" \"can be taken\" only on a \"strong showing of bad faith or improper behavior\"); accord Sw. Ctr. for Biological Diversity v. U.S. Forest Serv. , 100 F.3d 1443, 1450 (9th Cir. 1996) ; James Madison Ltd. , 82 F.3d at 1096 ; Sierra Club v. Costle , 657 F.2d 298, 389 n.450 (D.C. Cir. 1981). Although courts have set a high bar for such additional evidence going to an agency decisionmaker's reasons for acting, that bar is not impossible to clear - courts have treated the possibility as a real" }, { "docid": "21951142", "title": "", "text": "to this rule, allowing extra-record materials (1) if necessary to determine whether the agency has considered all relevant factors and has explained its decision, (2) when the agency has relied on documents not in the record, [ ] (3) when supplementing the record is necessary to explain technical terms or complex subject matter, [or] ... (4) when plaintiffs make a showing of agency bad faith. Sw. Center, 100 F.3d at 1450(internal quotation marks omitted). CBD has not alleged agency bad faith or that the Service relied on documents not in the record. CBD claims that the documents it offered were submitted for their persuasive force to explain the term “take” under state law and to show that the Service failed to consider a relevant factor during its deliberations. We normally refuse to consider evidence that was not before the agency because “it inevitably leads the reviewing court to substitute its judgment for that of the agency.” Asarco, Inc. v. EPA 616 F.2d 1153, 1160(9th Cir.1980). When an agency’s inquiry is inadequate, we generally “remand the matter to the agency for further consideration.” Id. We rejected a similar attempt to introduce extra-record documents in Southwest Center for Biological Diversity v. United States Forest Service, 100 F.3d at 1450. There a party offered extra-record documents, including a letter dated a month after the agency decision was completed, arguing that they should be admitted to analyze “whether the Forest Service [had] considered all of the relevant factors” in its decision. Id. We held that the district court had not abused its discretion in striking the letter because post-decision information “may not be advanced as a new rationalization ... for attacking an agency’s decision.” Id. at 1451-52. This is precisely the purpose for which CBD offered the stricken documents, and we agree with the district court that it is an impermissible use. Thus, the district court did not abuse its discretion in striking CBD’s extra-record documents. V In. summary, it was not arbitrary and capricious for the Service to decide not to designate critical habitat for the stickleback. The Service was not required to" } ]

[ { "docid": "22196041", "title": "", "text": "Cir.1993) (unpublished table decision). . See Puckett v. United States, -U.S. -, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009) (explaining that plain error has four prongs: (1) there was an error or defect, a “deviation from a legal rule — that has not been intentionally relinquished or abandoned”; (2) “the legal error must be clear or obvious, rather than subject to reasonable dispute”; (3) the error affected the defendant’s substantial rights, \"which in the ordinary case means he must demonstrate that it 'affected the outcome of the district court proceedings' \"; and (4) when these three elements are present, a court may exercise its discretion to correct the error, although this discretion “ought to be exercised only if the error 'seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings’ \" (quoting United States v. Olano, 507 U.S. 725, 732-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993))). . Id. . Id. at 1433 n. 4, 129 S.Ct. 1423. . United States v. Price, 516 F.3d 285, 289 (5th Cir.2008) (quoting United States v. Gonzales, 484 F.3d 712, 716 (5th Cir.2007) (internal quotation marks omitted)). . The offense level for John based on a loss amount of $78,750 would be 22, which is less than 27, the offense level based on the loss amount of $1,451,865 less the 3-level reduction. Accordingly, the offense level of 27 would apply under the Guidelines, assuming no other error in the calculation of the advisory Guidelines range. . See, e. g., United States v. Villegas, 404 F.3d 355, 364-65 (5th Cir.2005) (concluding that Villegas's substantial rights were affected when the proper application of the Guidelines resulted in an advisory sentencing range of 10-16 months, as compared to a 21-27-month range calculated by the district court); United States v. Insaulgarat, 378 F.3d 456, 468 n. 17 (5th Cir.2004); United States v. Gracia-Cantu, 302 F.3d 308, 313 (5th Cir.2002); United States v. Waskom, 179 F.3d 303, 312 (5th Cir.1999); see also Price, 516 F.3d at 289 (determining that a sentencing error affected Price's substantial rights even though the Guidelines sentencing range calculated by the district" } ]

[ { "docid": "22042764", "title": "", "text": "fairness, integrity or public reputation of the judicial proceedings.’ ” Olano, 507 U.S. at 735-36, 113 S.Ct. 1770 (quoting United States v. Atkinson, 297 U.S. 157, 56 S.Ct. 391, 80 L.Ed. 555 (1936)) (emphasis added). It goes without saying that meeting all four requirements “is difficult ‘as it should be.’ ” Puckett, 129 S.Ct. at 1429 (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83 n. 9, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004)). Having already determined that the district court erred in accepting Trejo’s plea on the facts presented, we move to the question of whether the error was plain. Plain error is error that is “clear” or “obvious.” Olano, 507 U.S. at 734, 113 S.Ct. 1770. “At a minimum,” establishing plain error requires a showing that the “error [was] clear under current law.” Olano, 507 U.S. at 734, 113 S.Ct. 1770; United States v. Bishop, 603 F.3d 279, 280 (5th Cir.2010) (emphasis added). “Current law” is the law in place at the time of trial. United States v. Jackson, 549 F.3d 963, 977 (5th Cir.2008). An error is not plain under “current law” “if a defendant’s theory requires the extension of precedent.” Id. (internal citations omitted). Plain error is error so clear or obvious that “the trial judge and prosecutor were derelict in countenancing it, even absent the defendants timely assistance in detecting it.” United States v. Hope, 545 F.3d 293, 296 (5th Cir.2008) (quoting United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)). The error in this case simply does not reach that level. Our own analysis belies any notion that the current law regarding Trejo’s factual insufficiency claim is “clear.” Variously describing Trejo’s claim as “novel” and “not entirely clear under the existing case authority,” we doom the case for plain error. This, despite Brown, supra, and the related transaction cases describing a “stringent mens rea” component in cases under § 1956(a)(1)(A)®. Given the myriad factual and procedural variations involving promotion money laundering generally, it is by no means clear how Brown, a case involving a wheelchair scam, translates" }, { "docid": "19904457", "title": "", "text": "the implausibility of proving prejudice from a Rule 32 violation, see, e.g., United States v. Haygood, 549 F.3d 1049, 1055 (6th Cir.2008); United States v. Carruth, 528 F.3d 845, 847 (11th Cir.2008); United States v. Reyna, 358 F.3d 344, 352 (5th Cir.2004) (en banc); Adams, 252 F.3d at 287-88, and without a presumption in favor of the defendant we run the risk of reducing the rule and the right it protects to a meaningless formality. See United States v. Barnes, 948 F.2d 325, 331 (7th Cir.1991) (“[T]he defendant’s right to be heard must never be reduced to a formality.”). It is our duty to ensure that the right is afforded to all defendants, while maintaining a careful balance between judicial efficiency and the redress of injustice. Puckett v. United States, — U.S. -, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009). Plain error review, outlined in Federal Rule of Criminal Procedure 52(b), maintains the appropriate balance in most cases; however, as the Supreme Court recognized in Olano, there are some instances where errors may be presumed prejudicial. United States v. Olano, 507 U.S. 725, 735, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). In that case, the Court found that a violation of Rule 24(c), which, at the time, required the district judge to discharge alternate jurors after the jury began deliberations, was not the type of error that “affect[s] substantial rights independent of its prejudicial impact,” and the Court declined to presume prejudice. Id. at 737, 113 S.Ct. 1770 (internal quotation marks omitted). In United States v. Vonn, the Court held that violations of Rule 11 of the Federal Rules of Criminal Procedure (requiring the district court to ensure that a plea is knowing and voluntary) were still subject to plain error. 535 U.S. 55, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002). One can certainly argue that the right to allocute is not more important than the right to a jury free from improper influence, or the right to enter a knowing and voluntary guilty plea. And the Supreme Court’s insistence on the plain error standard of review (without a" }, { "docid": "22766568", "title": "", "text": "error review applies. II. THE LEGAL STANDARD A district court may impose any sentence upon revocation of supervised release that falls within the statutory maximum term allowed for the revocation sentence, but must consider the factors enumerated in 18 U.S.C. § 3553(a) and the policy statements before doing so. 18 U.S.C. § 3583(e); United States v. McKinney, 520 F.3d 425, 427 (5th Cir.2008). Had Davis properly preserved his objection to the 15 to 21 month advisory range, we would review to determine whether the sentence imposed was unreasonable or “plainly unreasonable.” See United States v. Jones, 484 F.3d 783, 792 (5th Cir.2007). Because Davis did not object to the 15 to 21 month advisory range in the district court, however, we review under a more deferential standard for plain error. United States v. Davis, 487 F.3d 282, 284 (5th Cir.2007). To establish plain error, an appellant must show a forfeited error that is clear or obvious and that affected his substantial rights. Puckett v. United States, — U.S. -, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009). Ordinarily, an error affects substantial rights only if it “ ‘affected the outcome of the district court proceedings.’ ” Id. (quoting United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)); see also Davis, 487 F.3d at 284. If the appellant makes this showing, “the court of appeals has the discretion to remedy the error — discretion which ought to be exercised only if the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ ” Puckett, 129 S.Ct. at 1429 (quoting Olano, 507 U.S. at 736, 113 S.Ct. 1770). In the sentencing context, we have held that an appellant can show an impact on substantial rights — and therefore a basis for reversal on plain error review— where the appellant can show a reasonable probability that, but for the district court’s error, the appellant would have received a lower sentence. United States v. Garcia-Quintanilla, 574 F.3d 295, 303-04 (5th Cir.2009). We have specifically applied this rule where the district court considered an incorrect advisory range" }, { "docid": "1512565", "title": "", "text": "“[T]his circuit applies plain error review to forfeited constructive amendment arguments.” United States v. Daniels, 252 F.3d 411, 414 n. 8 (5th Cir.2001). Under that standard, we will correct forfeited errors only if: (1) there was an error; (2) the error was clear or obvious; and (3) the plain error affected the substantial rights of the defendant. United States v. Griffin, 324 F.3d 330, 356 (5th Cir.2003). If these three conditions are met, we may, in our discretion, correct a forfeited error only if it “seriously affect[s] the fairness, integrity, or public reputation of the judicial proceedings.” United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (citation omitted). A criminal defendant has a Fifth Amendment right to be .“tried only on charges presented in a grand jury indictment.” United States v. Chandler, 858 F.2d 254, 256 (5th Cir.1988). Only a grand jury has the power to amend an indictment. See id. “A jury charge constructively amends an indictment ... if it permits the jury ‘to convict the defendant upon a factual basis that effectively modifies an essential element of the crime charged.’ ” United States v. Daniels, 252 F.3d 411, 413-14 (5th Cir.2001) (citing Chandler, 858 F.2d at 257). The accepted test is that a “constructive amendment occurs if the jury is permitted to convict on ah alternative basis permitted by the statute but not charged in the indictment.” Id. at 414 (internal quotation marks and citation omitted). Section 922(g)(1) provides in relevant part that: It shall be unlawful for any person ... who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year ... to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm. 18 U.S.C. § 922(g)(1). “Firearm” is a term of art. It means “any weapon ... which will or is designed to or may readily be converted to expel a projectile by the action of an explosive[;] ... the frame or receiver of any such weapon[;] ... any firearm muffler or firearm silencer[;] ... or" }, { "docid": "22466078", "title": "", "text": "v. United States, 527 U.S. 373, 389, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999) (emphasis added) (quoting Olano, 507 U.S. at 736, 113 S.Ct. 1770). “The fourth prong is meant to be applied on a case-specific and fact-intensive basis.” Puckett, 129 S.Ct. at 1433 (noting per se approach is flawed and countervailing factors should be considered); see also United States v. Calverley, 37 F.3d 160, 164 (5th Cir.1994) (en banc) (“The appellate courts must determine whether the facts of the particular case warrant remediation.”), abrogated on other grounds by United States v. Dupre, 117 F.3d 810, 817 (5th Cir.1997); United States v. Rodriguez, 15 F.3d 408, 416 (5th Cir.1994) (“the ultimate decision whether ... to take notice of an error not raised below must depend on the facts of the particular case” (quoting United States v. Morales, 477 F.2d 1309, 1315 (5th Cir.1973))). As noted, this is a discretionary, not mandatory, prong, and informs our court that remand “should be employed in those circumstances in which a miscarriage of justice would otherwise result”. Olano, 507 U.S. at 735-36, 113 S.Ct. 1770 (citation and internal quotation marks omitted) (stating this prong is “permissive” and “the court of appeals has authority to order correction, but is not required to do so”). Without an exacting and limited application of this prong, it becomes “illusory”. Id. at 737, 113 S.Ct. 1770. In short, “[mjeeting all four prongs is difficult, as it should be”. Puckett, 129 S.Ct. at 1429 (citation and internal quotation marks omitted). In addressing the fourth prong, the majority notes our court’s discretion to correct reversible plain error, and then states: “The substantial disparity between the imposed sentence and the applicable Guidelines range warrants the exercise of our discretion to correct the error”. Maj. Opn. at 291. It states no more, other than citing United States v. Gonzalez-Terrazas, 529 F.3d 293, 298-99 (5th Cir.2008), in which defendant was sentenced at the bottom of an incorrect advisory sentencing range; the imposed sentence was 33 months above the bottom of the correct, and lower, range. Here, the majority utterly fails to conduct any sort" }, { "docid": "23038390", "title": "", "text": "plastic bag in exchange for cash on a street in Manhattan). . U.S.S.G. § 2K2.1(b)(6) (2008). . U.S.S.G. § 2K2.1 cmt. n. 14(A). . See United States v. Anderson, 559 F.3d 348, 357 (5th Cir.), cert. denied,-U.S.-, 129 S.Ct. 2814, 174 L.Ed.2d 308 (2009). . See United States v. Condren, 18 F.3d 1190, 1194 (5th Cir. 1994) (noting that the initial step in evaluating a § 2K2.1(b)(6) enhancement is to “first identify the other felony employed in the district court's enhancement calculus”). . United States v. Perez, 585 F.3d 880, 886 (5th Cir.2009) (reviewing an objection that defendant \"failed to preserve\" at sentencing \"for plain error only\"). . United States v. John, 597 F.3d 263, 284 n. 91 (5th Cir.2010) (citing Puckett v. United States, - U.S. -, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009)). . Id. . Id. (quoting United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). . See United States v. Valenzuela, 495 F.3d 1127, 1133-34 (9th Cir.2007) (holding that \"a defendant’s sentence may not be enhanced under [former] § 2K2.1(b)(5) [now § 2K2.1(b)(6)] if the other felony offense is a firearms trafficking or possession offense”); United States v. Harper, 466 F.3d 634, 650 (8th Cir.2006) (\" 'Another felony offense’ for purposes of [former] § 2K2.1(b)(5) does not include firearms possession or trafficking offenses.”); United States v. Lloyd, 361 F.3d 197, 201 (3d Cir.2004) (\"[R]egardless of the interpretation given to the word 'another' in [former] § 2K2.1(b)(5), ‘firearms possession or trafficking offenses' are categorically removed from the set of crimes that may constitute 'another felony offense.' ”); United States v. Boumelhem, 339 F.3d 414, 427-28 (6th Cir.2003) (holding that a district court erroneously applied die former § 2K2.1(b)(5) enhancement because the predicate felony— conspiracy to ship or transport firearms and ammunition in foreign commerce — was a \"firearms trafficking offense” that could not serve as \"another felony offense” under the guideline); United States v. Garnett, 243 F.3d 824, 827 (4th Cir.2001) (noting that a firearms trafficking offense “cannot serve as the basis for the [former] section 2K2.1(b)(5) enhancement”). . U.S.S.G." }, { "docid": "2352300", "title": "", "text": "derelict in countenancing it, even absent the defendant’s timely assistance in detecting it.” United States v. Trejo, 610 F.3d 308, 319 (5th Cir.2010) (internal quotations omitted). As a general rule, an error affects a defendant’s substantial rights only if the error was prejudicial. Olano, 507 U.S. at 734, 113 S.Ct. 1770. Error is prejudicial if there is a reasonable probability that the result of the proceedings would have been different but for the error. See United States v. Holmes, 406 F.3d 337, 365 (5th Cir.2005) (citing United States v. Dominguez Benitez, 542 U.S. 74, 81, 124 S.Ct. 2333, 2339, 159 L.Ed.2d 157 (2004)). The probability of a different result must be sufficient to undermine confidence in the outcome of the proceedings. Id. The defendant bears the burden of demonstrating that a plain error affects his substantial rights. Olano, 507 U.S. at 734-35, 113 S.Ct. 1770. Finally, even if a plain error affects a defendant’s substantial rights, we do not exercise our discretion to correct the error unless it seriously affects the fairness, integrity, and public reputation of the judicial proceeding. Id. at 735, 113 S.Ct. 1770; United States v. Mares, 402 F.3d 511, 520 (5th Cir.2005). When a defendant does not timely object to an error at trial, satisfying the requirements for error correction is “difficult, as it should be.” Puckett v. United States, — U.S. -, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009) (quotations omitted). Under the Federal Rules of Evidence, a qualified expert witness may offer reliable opinion testimony if specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue. Fed.R.Evid. 702. In a criminal case, however, an expert witness may not offer an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged. Fed. R.Evid. 704(b). The ultimate issues in a criminal case “are matters for the trier of fact alone.” Id. Thus, although we have held that a qualified narcotics agent typically may testify about the significance of certain conduct or" }, { "docid": "3616958", "title": "", "text": "did not do so on the grounds urged here, thus our review is for plain error. Daniels essentially repeats his scienter argument, and it is no more compelling here. We reject it for the reasons stated previously. The judgment of conviction is AFFIRMED. . 18 U.S.C. § 2113(b) (West 2000). . 530 U.S. 255, 120 S.Ct. 2159, 147 L.Ed.2d 203 (2000). . Id. at 269, 120 S.Ct. 2159. . United States v. Chandler, 858 F.2d 254, 256 (5th Cir.1988). . See id. . Id. at 257. . United States v. Robles-Vertiz, 155 F.3d 725, 728 (5th Cir.1998). . See Fed.R.Crim.P. 52(b). It is now clear that this circuit applies plain error review to forfeited constructive amendment arguments. Although United States v. Mize, 756 F.2d 353, 355-57 (5th Cir.1985), held that constructive amendment required automatic reversal, later cases in this circuit have clarified the interaction between the automatic reversal rule and plain error review. In United States v. Reyes, 102 F.3d 1361, 1364-66 (5th Cir.1996), we held that under United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), we have discretion to correct a constructive amendment if the defendant failed to object at trial. Further, in United States v. Fletcher, 121 F.3d 187, 192-93 (5th Cir.1997), we expressly recognized the tension between plain error review and the \"automatic reversal” rule of Mize, and reconciled it in favor of plain error review, following the Supreme Court’s guidance in Olano. . See Olano, 507 U.S. at 731-34, 113 S.Ct. 1770; Fletcher, 121 F.3d at 192. . See Olano, 507 U.S. at 736, 113 S.Ct. 1770; Fletcher, 121 F.3d at 192. . See Reyes, 102 F.3d at 1365 (declining to exercise discretion to correct a constructive amendment, under plain error review, in part because the offense upon which the jury was charged could have been charged in the indictment). . See United States v. Moreno, 185 F.3d 465, 471 (5th Cir.1999). . Daniels objected to any supplemental instruction, on the grounds that the jury's note did not make clear what they were confused about. Daniels also objected to the" }, { "docid": "22289662", "title": "", "text": "court, to make a subsequent guess as to what was in the minds of the grand jury at the time they returned the indictment would deprive the defendant of a basic protection which the guaranty of the intervention of a grand jury was designed to secure. For a defendant could then be convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury which indicted him. Russell v. United States, 369 U.S. 749, 770, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962). Therefore, when a constructive amendment has occurred and error has been properly preserved, we have made it clear that “the conviction cannot stand; there is no prejudice requirement.” United States v. Mikolajczyk, 137 F.3d 237, 243 (5th Cir.1998). However, neither Griffin’s attorney nor counsel for Walker and Roberts objected to the district court’s instruction that included the deprivation of an intangible right of honest services language. As a result, we must review this issue for plain error. United States v. Dixon, 273 F.3d 636, 639-40 (5th Cir.2001). Under this standard of review, we may correct forfeited errors only if (1) there was an error, (2) the error was clear or obvious, and (3) the error affected the defendant’s substantial rights. See United States v. Olano, 507 U.S. 725, 731-34, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); Dixon, 273 F.3d at 639-40. Even if these three conditions are met, this Court may correct a forfeited error only if it “ ‘seriously affect[s] the fairness, integrity, or public reputation of the judicial proceedings.’ ” Olano, 507 U.S. at 736, 113 S.Ct. 1770 (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 80 L.Ed. 555 (1936)). We find that the requirements for granting relief under the plain error standard of review have been satisfied. There is no doubt that the district court erred by instructing the jury that a scheme to defraud includes “a scheme to deprive another of the intangible right to honest services” because the indictment did not contain a reference to 18 U.S.C. § 1346 or its language. And," }, { "docid": "2352299", "title": "", "text": "contends that we should reverse his conviction on grounds that Agent Crawford offered an expert opinion on the ultimate issue of knowledge. Relatedly, Gonzalez-Rodriguez also contends that we should reverse on grounds that Agent Crawford presented impermissible drug courier profile evidence. Although we find plain error, we do not find reversible error. 1. Basic Principles We review the admission of Agent Crawford’s testimony for plain error because Gonzalez-Rodriguez did not object to the testimony at trial. United States v. Ramirez-Velasquez, 322 F.3d 868, 878-79 (5th Cir.2003). We may not correct an error that a defendant failed to raise in the district court unless the error is plain and also affects the defendant’s substantial rights. See United States v. Garcia, 567 F.3d 721, 726 (5th Cir.2009); Fed. R.Crim.P. 52(b). An error is plain if it is at least “clear under current law.” United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). We have stated that the error must be “so clear or obvious that the trial judge and prosecutor were derelict in countenancing it, even absent the defendant’s timely assistance in detecting it.” United States v. Trejo, 610 F.3d 308, 319 (5th Cir.2010) (internal quotations omitted). As a general rule, an error affects a defendant’s substantial rights only if the error was prejudicial. Olano, 507 U.S. at 734, 113 S.Ct. 1770. Error is prejudicial if there is a reasonable probability that the result of the proceedings would have been different but for the error. See United States v. Holmes, 406 F.3d 337, 365 (5th Cir.2005) (citing United States v. Dominguez Benitez, 542 U.S. 74, 81, 124 S.Ct. 2333, 2339, 159 L.Ed.2d 157 (2004)). The probability of a different result must be sufficient to undermine confidence in the outcome of the proceedings. Id. The defendant bears the burden of demonstrating that a plain error affects his substantial rights. Olano, 507 U.S. at 734-35, 113 S.Ct. 1770. Finally, even if a plain error affects a defendant’s substantial rights, we do not exercise our discretion to correct the error unless it seriously affects the fairness, integrity, and public" }, { "docid": "23038389", "title": "", "text": "United States v. Shell, 972 F.2d 548, 550 (5th Cir.1992). . See United States v. Green, 360 Fed.Appx. 521, 523-24 (5th Cir.2010) (reviewing for clear error a district court's finding that a defendant knew or had reason to believe that she was transferring firearms to someone who intended to use or dispose of the firearms unlawfully under § 2K2.1(b)(5)); United States v. Caldwell, 448 F.3d 287, 291-92, 293 (5th Cir.2006) (reviewing for clear error a district court’s finding that defendants had reason to believe that firearms would be used or possessed in connection with a felony offense under former § 2K2.1(b)(5)). . See Caldwell, 448 F.3d at 292 (recognizing that evidence of knowledge that firearms would be used or possessed in connection with drug activity included their sale on the street above the market price). . 360 Fed.Appx. at 522-25. . Cf. United States v. Mena, 342 Fed.Appx. 656, 658 (2d Cir.2009) (affirming district court's imposition of the § 2K2.1(b)(5) trafficking enhancement when the defendant, as instructed by his brother-in-law, twice delivered guns in a plastic bag in exchange for cash on a street in Manhattan). . U.S.S.G. § 2K2.1(b)(6) (2008). . U.S.S.G. § 2K2.1 cmt. n. 14(A). . See United States v. Anderson, 559 F.3d 348, 357 (5th Cir.), cert. denied,-U.S.-, 129 S.Ct. 2814, 174 L.Ed.2d 308 (2009). . See United States v. Condren, 18 F.3d 1190, 1194 (5th Cir. 1994) (noting that the initial step in evaluating a § 2K2.1(b)(6) enhancement is to “first identify the other felony employed in the district court's enhancement calculus”). . United States v. Perez, 585 F.3d 880, 886 (5th Cir.2009) (reviewing an objection that defendant \"failed to preserve\" at sentencing \"for plain error only\"). . United States v. John, 597 F.3d 263, 284 n. 91 (5th Cir.2010) (citing Puckett v. United States, - U.S. -, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009)). . Id. . Id. (quoting United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). . See United States v. Valenzuela, 495 F.3d 1127, 1133-34 (9th Cir.2007) (holding that \"a defendant’s sentence may not" }, { "docid": "22766569", "title": "", "text": "266 (2009). Ordinarily, an error affects substantial rights only if it “ ‘affected the outcome of the district court proceedings.’ ” Id. (quoting United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)); see also Davis, 487 F.3d at 284. If the appellant makes this showing, “the court of appeals has the discretion to remedy the error — discretion which ought to be exercised only if the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ ” Puckett, 129 S.Ct. at 1429 (quoting Olano, 507 U.S. at 736, 113 S.Ct. 1770). In the sentencing context, we have held that an appellant can show an impact on substantial rights — and therefore a basis for reversal on plain error review— where the appellant can show a reasonable probability that, but for the district court’s error, the appellant would have received a lower sentence. United States v. Garcia-Quintanilla, 574 F.3d 295, 303-04 (5th Cir.2009). We have specifically applied this rule where the district court considered an incorrect advisory range under the Guidelines for an initial sentence, United States v. John, 597 F.3d 263, 284-85 (5th Cir.2010) , and in a number of unpublished cases have done the same where, as here, the district court considered an incorrect advisory range under the policy statements for a sentence imposed upon revocation of supervised release. See United States v. Jimenez, No. 08-11175, 364 Fed.Appx. 907, 2010 WL 445620, at *1 (5th Cir. Feb. 8, 2010) (per curiam); United States v. Arkadie, 344 Fed.Appx. 966, 967 (5th Cir.2009) (per curiam); United States v. Soliz, 344 Fed.Appx. 900, 902 (5th Cir.2009) (per curiam). This is consistent with the rule in other circuits. See, e.g., United States v. Miller, 557 F.3d 910, 916 (8th Cir.2009) (concluding, in the revocation context, that “an error [i]s prejudicial only if there is a reasonable probability that the defendant would have received a lighter sentence but for the error”). As the ap pellant, Davis bears the burden of establishing reasonable probability. Garcia-Quintanilla, 574 F.3d at 303. III. ANALYSIS The parties do not dispute that" }, { "docid": "641447", "title": "", "text": "to obtain money, property, or other things of value. Scher argues that the inclusion of the phrase “other things of value” constructively amended the indictment by adding a basis for conviction not alleged in the indictment. Scher did not raise this argument during trial. Thus, our review is for plain error. United States v. Reyes, 102 F.3d 1361, 1364 (5th Cir.1996). Under the plain error standard, we will reverse only if “(1) there is an error, (2) that is clear or obvious, and (3) that affects [the defendant’s] substantial rights.” United States v. Ferguson, 211 F.3d 878, 886 (5th Cir.2000). Even if these factors are met, “the decision to correct the forfeited error is within the sound discretion of the court, and the court will not exercise that discretion unless the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (citing United States v. Olano, 507 U.S. 725, 735-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). A constructive amendment occurs when the trial court “through its instructions and facts it permits in evidence, allows proof of an essential element of the crime on an alternative basis provided by the statute but not charged in the indictment.” United States v. Phillips, 477 F.3d 215, 222 (5th Cir.2007) (quotation omitted). In evaluating whether a constructive amendment has occurred, we consider “whether the jury instruction, taken as a whole, is a correct statement of the law and whether it clearly instructs jurors as to the principles of the law applicable to the factual issues confronting them.” United States v. Guidry, 406 F.3d 314, 321 (5th Cir.2005) (quotation omitted). We “scrutinize any difference between an indictment and a jury instruction” and “will reverse only if that difference allows the defendant to be convicted of a separate crime from the one for which he was indicted.” United States v. Nunez, 180 F.3d 227, 231 (5th Cir.1999). Otherwise, a defendant must “show how the variance in the language between the jury charge and the indictment so severely prejudiced his defense that it requires reversal under harmless error review.” Id. Here, the balance" }, { "docid": "20281687", "title": "", "text": "appeal, rather than a general objection to the instructions as a whole or an objection on a different ground.” Fiber Sys. Int’l, Inc. v. Roehrs, 470 F.3d 1150, 1158 (5th Cir.2006). Thus, a specific, formal, on-the-record objection is required. See United States v. Redd, 355 F.3d 866, 874-75 (5th Cir.2003). Rule 51 also dictates the timing of such an objection. After informing the parties of its intended instructions, the court “must give the parties an opportunity to object on the record and out of the jury’s hearing before the instructions and arguments are delivered.” Fed.R.Civ.P. 51(b)(2). All objections must be made at that time. Fed.R.Civ.P. 51(c)(2)(A). Where a specific and timely objection is made, we review that objection “under an abuse of discretion standard, affording the trial court substantial latitude in describing the law to the jurors.” United States v. Santos, 589 F.3d 759, 764 (5th Cir.2009) (internal quotation marks omitted). Where a proper objection is not made, however, our review of a jury instruction challenge is limited to review for plain error. See Fed.R.Civ.P. 51(d)(2) (“A court may consider a plain error in the instructions that has not been preserved as required by Rule 51(d)(1) if the error affects substantial rights.”). We have discretion to correct such an unpreserved error only if it is plain, affects substantial rights, and “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.2009) (internal quotation marks omitted); see also Fed.R.Civ.P. 51(d)(2). If the unpreserved error does not meet this demanding standard, we have no authority to correct it. United States v. Olano, 507 U.S. 725, 740, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); see also Puckett v. United States, 556 U.S. 129, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009). B. The County argues that the district court erred in instructing the jury that reasonable suspicion was required for the strip search of Ms. Jimenez. Yet the County, did not lodge an objection on this ground in the district court. When the court provided an opportunity for the parties to object to" }, { "docid": "23016136", "title": "", "text": "erroneously admitted.” United States v. Moore, 375 F.3d 259, 262 (3d Cir.2004). Our sister circuits have held, and we agree, that “a party fails to preserve an evidentiary issue for appeal not only by failing to make a specific objection, ... but also by making the wrong specific objection.” See United States v. Gomez-Norena, 908 F.2d 497, 500 (9th Cir.1990) (citations omitted) (emphasis in original); see also United States v. Gracia, 522 F.3d 597, 599 n. 1 (5th Cir.2008); United States v. Schalk, 515 F.3d 768, 776 (7th Cir.2008); United States v. Arias, 575 F.2d 253, 255 (9th Cir.1978). Accordingly, despite the parties’ apparent agreement that the appropriate standard of review is abuse of discretion, we will review the District Court’s admission of Shisler’s prior testimony for plain error. See Moore, 375 F.3d at 262; see also Schalk, 515 F.3d at 776; Gomez-Norena, 908 F.2d at 500-01. Under this standard, “[t]here must be an error that is plain and that affect[s] substantial rights.” United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (citations and internal quotation marks omitted). An error is a “[djeviation from a legal rule” and it is “plain” if it is “clear” or “obvious.” Id. at 732-34, 113 S.Ct. 1770. Generally, an error affects substantial rights when it is prejudicial, ie., it “affected the outcome of the district court proceedings.” Id. at 734, 113 S.Ct. 1770. Moreover, even if such an error is found, “the court of appeals has the authority to order correction, but is not required to do so.” Id. at 735, 113 S.Ct. 1770. We should exercise our discretion to correct the error only if it “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id. at 736, 113 S.Ct. 1770 (citation and internal quotation marks omitted). Two days before Iglesias’s trial began, the government called Shisler as a witness at the suppression hearing. Shisler testified under oath that he had bought methamphetamine from Iglesias “once or twice” in 2004 at the Red Lion Road apartment, that he sometimes would pay Iglesias for the drugs after" }, { "docid": "1434823", "title": "", "text": "(affirming the defendant’s sentence of imprisonment because there was sufficient evidence to support the enhancement, but vacating the restitution order under the MVRA and remanding for determination of the actual loss); United States v. Adams, 363 F.3d 363, 368 (5th Cir.2004) (vacating only the restitution order and remanding for recalculation); United States v. Noiris, 217 F.3d 262, 275 (5th Cir.2000) (vacating only the restitution order and affirming the sentence in all other respects without remand); United States v. Campbell, 106 F.3d 64, 70 (5th Cir.1997) (affirming the sentence of imprisonment, but reversing and vacating the court's restitution order without remand); United States v. Up ton, 91 F.3d 677, 689 (5th Cir.1996) (vacating two defendants’ restitution orders and remanding for recalculation, but affirming the sentences in all other respects); United States v. Stout, 32 F.3d 901, 904-05 (5th Cir.1994) (finding an erroneous upward departure to be harmless, vacating only the restitution award, and remanding for resentencing); United States v. Holley, 23 F.3d 902, 915 (5th Cir.1994) (vacating the restitution order and remanding); United States v. Reese, 998 F.2d 1275, 1286 (5th Cir.1993) (vacating the portion of the district court’s judgment as to the amount of restitution and remanding); United States v. Cockerham, 919 F.2d 286, 287 (5th Cir.1990) (vacating restitution order, but affirming other aspects of the sentence). . See Hayes, 32 F.3d at 173. . United States v. John, 597 F.3d 263, 282 (5th Cir.2010). . Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (citing United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). . Olano, 507 U.S. at 732, 113 S.Ct. 1770 (quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985)) (internal quotation marks omitted). . U.S. Sentencing Guidelines Manual § 4A1.2(a)(2) (2010). . Id. . Id. . See United States v. Blocker, 612 F.3d 413, 416 (5th Cir.2010), cert. denied,-U.S.-, 131 S.Cl. 623, 178 L.Ed.2d 452 (2010) (\"As our conclusion is reached by a straightforward application of the guidelines, the error was also plain.”). . United States v." }, { "docid": "1434824", "title": "", "text": "998 F.2d 1275, 1286 (5th Cir.1993) (vacating the portion of the district court’s judgment as to the amount of restitution and remanding); United States v. Cockerham, 919 F.2d 286, 287 (5th Cir.1990) (vacating restitution order, but affirming other aspects of the sentence). . See Hayes, 32 F.3d at 173. . United States v. John, 597 F.3d 263, 282 (5th Cir.2010). . Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (citing United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). . Olano, 507 U.S. at 732, 113 S.Ct. 1770 (quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985)) (internal quotation marks omitted). . U.S. Sentencing Guidelines Manual § 4A1.2(a)(2) (2010). . Id. . Id. . See United States v. Blocker, 612 F.3d 413, 416 (5th Cir.2010), cert. denied,-U.S.-, 131 S.Cl. 623, 178 L.Ed.2d 452 (2010) (\"As our conclusion is reached by a straightforward application of the guidelines, the error was also plain.”). . United States v. Williams, 533 F.3d 673, 676-77 (8th Cir.2008). . Id. at 675. . Id. . Id. at 676. . Id. . U.S. Sentencing Guidelines Manual § 4A1.2(a)(2) (2006). . Id. § 4A1.2 cmt. n.3. . Id. . See United States v. Marler, 527 F.3d 874, 877 n. 1 (9th Cir.2008) (\"The Sentencing Commission explained that § 4A1.2 needed to be amended because the 'related cases' rule was too complex and had led to confusion and a ‘significant amount of litigation.’ \" (citation omitted)). . U.S. Sentencing Guidelines Manual § 4A1.2 cmt. n.3 (2010)." }, { "docid": "7649906", "title": "", "text": "violated his right to counsel. Williamson did not object to the admission of the recording at trial, so our review is for plain error. Because Williamson has failed to meet the stringent requirements to justify reversal for plain error, we affirm on the issue. Under Federal Rule of Criminal Procedure 52(b) and the plain-error analysis explained by the Supreme Court in United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), an appellate court may correct a forfeited error when: “(1) there is an error; (2) the error is plain; (3) the error affects substantial rights; and (4) the court determines, after examining the particulars of the case, that the error ‘seriously affeet[s] the fairness, integrity, or public reputation of judicial proceedings.’ ” United States v. Wilkinson, 137 F.3d 214, 223 (4th Cir. 1998) (quoting Olano, 507 U.S. at 732, 113 S.Ct. 1770). “Meeting all four prongs is difficult, ‘as it should be.’ ” Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83 n. 9, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004)). “[A]n error is plain when the law at the time is settled.” United States v. Godwin, 272 F.3d 659, 679 (4th Cir.2001). To show that a plain error affected his substantial rights, the accused must demonstrate that “the error actually affected the outcome of the proceedings.” Id. at 679-80. As a practical matter, this means that the accused “must establish ‘that the jury actually convicted’ [him] based upon the trial error.” Id. at 680 (quoting United States v. Hastings, 134 F.3d 235, 240 (4th Cir.1998)). “It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice.” Olano, 507 U.S. at 734, 113 S.Ct. 1770. “Where the evidence is overwhelming and a perfect trial would reach the same result, a substantial right is not affected.” Godwin, 272 F.3d at 680 (citing United States v. Moore, 11 F.3d 475, 482 (4th Cir.1993)). Even if the accused establishes the first three prongs, he must" }, { "docid": "22042763", "title": "", "text": "a defendant’s failure to object. United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). By its terms, Rule 52(b) applies only to errors that are “plain” and “affect[] substantial rights.” Fed.R.Crim.P. 52(b). In keeping with this exacting standard, the Supreme Court has identified four hurdles that must be cleared before a reviewing court can remedy a forfeited error. Puckett v. United States, — U.S. -, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009) (citing Olano, 507 U.S. at 734-36, 113 S.Ct. 1770). There must be (1). an error; (2) that is clear or obvious; and (3) affects the defendant’s substantial rights. Id. Fourth and finally, once it is shown that an error is “plain” and “affects substantial rights,” the court of appeals has the discretion to correct it but no obligation to do so. Id. (citing Olano, 507 U.S. at 736, 113 S.Ct. 1770) (emphasis in original). In fact, the Supreme Court advises that the reviewing court ought to remedy the error only if it “ ‘seriously affected the fairness, integrity or public reputation of the judicial proceedings.’ ” Olano, 507 U.S. at 735-36, 113 S.Ct. 1770 (quoting United States v. Atkinson, 297 U.S. 157, 56 S.Ct. 391, 80 L.Ed. 555 (1936)) (emphasis added). It goes without saying that meeting all four requirements “is difficult ‘as it should be.’ ” Puckett, 129 S.Ct. at 1429 (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83 n. 9, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004)). Having already determined that the district court erred in accepting Trejo’s plea on the facts presented, we move to the question of whether the error was plain. Plain error is error that is “clear” or “obvious.” Olano, 507 U.S. at 734, 113 S.Ct. 1770. “At a minimum,” establishing plain error requires a showing that the “error [was] clear under current law.” Olano, 507 U.S. at 734, 113 S.Ct. 1770; United States v. Bishop, 603 F.3d 279, 280 (5th Cir.2010) (emphasis added). “Current law” is the law in place at the time of trial. United States v. Jackson, 549 F.3d 963," }, { "docid": "22478309", "title": "", "text": "we must conclude that (1) an error occurred, (2) the error was plain, and (3) the error affected substantial rights. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Mitchell, 146 F.3d 1338, 1342 (11th Cir.1998). We easily conclude that error occurred in this case and that it was plain. Because Rule 32(c)(3)(C) specifically requires the district court to offer the defendant the opportunity to allocute, the court’s failure to do so was a “clear” or “obvious” error. See Olano, 507 U.S. at 734, 113 S.Ct. 1770; Mitchell, 146 F.3d at 1342. Where the first two prongs of the plain error rule are satisfied, the defendant bears the burden of demonstrating that the plain error “affected substantial rights.” Olano, 507 U.S. at 734, 113 S.Ct. 1770 (quoting Rule 52(a), Fed.R.Crim.P.); Mitchell, 146 F.3d at 1343. In most cases, this means that the “error must have been prejudicial: It must have affected the outcome of the district court proceedings.” Olano, 507 U.S. at 743, 113 S.Ct. 1770. Where all of these elements are demonstrated, we have discretion to order correction of the error and will do so “in those circumstances in which a miscarriage of justice would otherwise result.” See id. at 736, 113 S.Ct. 1770; Mitchell, 146 F.3d at 1343. Prouty’s argument that the denial of the right of allocution is reversible error where the defendant was not afforded the opportunity to allocute and the court did not impose the lowest sentence under the guidelines finds support in the decisions of all circuits to have addressed the question. See United States v. Adams, 252 F.3d 276, 287 (3d Cir.2001); United States v. Riascos-Suarez, 73 F.3d 616, 627 (6th Cir.1996); United States v. Cole, 27 F.3d 996, 999 (4th Cir.1994); United States v. Me-drano, 5 F.3d 1214, 1219 (9th Cir.1993); see also United States v. Myers, 150 F.3d 459, 463-65 (5th Cir.1998) (resentencing always required where defendant’s right to allocution is violated); United States v. Walker, 896 F.2d 295, 301 (8th Cir.1990) (same). These courts have reasoned that, because of the nature" } ]

[ { "docid": "22651781", "title": "", "text": "foreign country and language, found a place to live, and filed an asylum application within that short period of time. At the conclusion of Farah’s initial appearance, the IJ reviewed the penalties for filing a frivolous application with Farah, and Farah indicated he understood the penalties and desired to go forward. During the course of the proceedings, the IJ did not, however, go through specific inconsistencies or implausible elements of Farah’s claim, upon which the frivolousness finding relied, and did not give Farah an opportunity to explain them. Eventually, the IJ entered an order setting forth his findings and his overall adverse credibility determination. The IJ further concluded that Farah had received notice under section 208(d)(4) of the Act and had knowingly made a frivolous application for asylum. The IJ ordered Farah’s removal to Somalia and denied requests for asylum, withholding of removal, and relief under the United Nations Torture Convention. The IJ ordered that Farah be permanently ineligible for any benefits under the immigration laws. The BIA reviewed the administrative record and then entered a summary order adopting, and affirming the IJ’s decision in its entirety, dismissing the appeal in an order dated May 9, 2001. This petition followed. II. Discussion: Where the BIA adopts the findings and reasoning of the IJ, this court reviews the decision of the IJ as if it were that of the BIA. Al-Harbi v. INS, 242 F.3d 882, 887 (9th Cir.2001). The standard of review is extremely deferential: “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(A)-(B). Thus, when a petitioner contends that the IJ’s findings are erroneous, the petitioner “must establish that the evidence not only supports that conclusion, but compels it.” Singh v. INS, 134 F.3d 962, 966 (9th Cir.1998) (citation and internal quotation omitted). The same standard applies to the IJ’s credibility findings. Chebchoub v. INS, 257 F.3d 1038, 1042 (9th Cir.2001); Prasad v. INS, 47 F.3d 336, 338 (9th Cir.1995). Thus, this court must deny Farah’s petition unless Farah has presented evidence “so compelling that no" } ]

[ { "docid": "14930845", "title": "", "text": "considered in the first instance.’ ” Coronado v. Holder, 759 F.3d 977, 987 (9th Cir.2014) (quoting Montes-Lopez v. Gonzales, 486 F.3d 1163, 1165 (9th Cir.2007)). But here, the BIA has already fully considered Avendano-Hernandez’s CAT claim. The agency’s conflation of transgender and gay identity does not constitute the application of “an erroneous legal standard” that would normally require us to remand the case for further consideration. Lopez v. Ashcroft, 366 F.3d 799, 806-807 (9th Cir.2004). Instead, the agency’s denial is based on its factual confusion as to what constitutes transgender identity and its erroneous conclusion that “[t]here is no substantial evidence in the record ... to show that any Mexican public official has consented to or acquiesced in prior acts of torture committed against ... members of the transgender community.” In light of Avendano-Hernandez’s past torture, and unrebutted country conditions evidence showing that such violence continues to plague transgender women in Mexico, “no questions remain — she was tortured and there is a substantial danger that she will be, if returned.” Edu, 624 F.3d at 1147. We grant Avendano-Hernandez’s petition in part and remand her case for a grant of CAT relief. CONCLUSION The unique identities and vulnerabilities of transgender individuals must be considered in evaluating a transgender applicant’s asylum, withholding of removal, or CAT claim. Here, the BIA properly found Avendano-Hernandez ineligible for withholding of removal because of her conviction for a particularly serious crime. We thus deny the petition in part as to her withholding of removal claim. We grant the petition in part and remand for the agency to grant CAT deferral relief because the record compels the conclusion that she will likely face torture if removed to Mexico. PETITION DENIED IN PART, GRANTED IN PART, AND REMANDED. Each party shall bear its own costs on appeal. . The IJ found Avendano-Hernandez to be credible, and the BIA affirmed this finding. Thus, \"we accept the facts given by [the petitioner] and all reasonable inferences to be drawn from them as true.” Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1054 n. 2 (9th Cir.2006). . Alternatively, Avendano-Hernandez proved government" }, { "docid": "22085945", "title": "", "text": "of or with the consent or acquiescence of a public official or other person acting in an official capacity,” 8 C.F.R. § 208.18(a)(1). The evidence Dhital offered in support of his CAT claim was his testimony and State Department reports detailing country conditions in Nepal. As noted, substantial evidence supports the BIA’s determination that Dhital’s testimony was not credible. Nevertheless, Dhital can demonstrate his eligibility for CAT relief if the State Department reports, standing alone, “compel[ ] the conclusion that [he] is more likely than not to be tortured” if he is returned to Nepal. Almaghzar v. Gonzales, 457 F.3d 915, 922-23 (9th Cir.2006). The reports in the record describe an ongoing struggle between the Nepalese government and the Maoists, with atrocities, including torture, having been committed by both sides. Still, they do not indicate that Dhital would face any partic ular threat of torture beyond that of which all citizens of Nepal are at risk. See id. at 923 (explaining that although State Department reports in that case “confirm[ed] that torture takes place” in the petitioner’s home country, they did not compel the conclusion that the petitioner would be subject to a particularized threat of torture if returned). Accordingly, we conclude that substantial evidence supports the BIA’s decision to affirm the IJ’s denial of Dhital’s application for CAT relief. V Based on the foregoing, Dhital’s petition for review of the Board’s decision is DENIED. . On June 15, 2006, Dhital filed a motion to reopen, which the Board denied based on Dhital’s lack of credibility. Dhital has not petitioned for review of that decision, nor has he petitioned for review of the BIA’s dismissal of his claim for voluntary departure. . As we held in Ramadan, exercising jurisdiction over the BIA's application of § 1158(a)(2)(D)’s exceptions to the asylum filing deadline does not require us to review a discretionary determination by the agency as described in 8 U.S.C. § 1252(a)(2)(B). Although an alien must prove that changed or extraordinary circumstances exist “to the satisfaction of the Attorney General’’ to overcome the one-year bar, id. § 1158(a)(2)(D), this phrase “is" }, { "docid": "22095852", "title": "", "text": "Aristide supporter. The BIA remanded to the IJ to enter a final order of removal that encompassed all of the IJ’s and BIA’s decisions. The IJ entered the order on June 30, 2006. Brezilien timely petitioned for review. II. Jurisdiction Our jurisdiction to review a final order of removal is governed by 8 U.S.C. § 1252 (2000); Immigration and Nationality Act § 242, as amended by the Real ID Act of 2005, Pub.L. No. 109-13, Div. B, § 106, 119 Stat. 231 (May 11, 2005). With respect to asylum, withholding of removal, and CAT claims of a petitioner who was convicted of an offense covered by § 1252(a)(2)(C), we have jurisdiction to review the denial of an asylum application and to review the denial of withholding of removal and CAT relief when a petitioner raises questions of law, including mixed questions of law and fact, or constitutional claims. Morales v. Gonzales, 478 F.3d 972, 978-80 (9th Cir.2007). Moreover, as to “factual issues, when an IJ does not rely on an alien’s conviction in denying CAT relief and instead denies relief on the merits, none of the jurisdiction-stripping provisions ... apply to divest this court of jurisdiction.” Id. at 980; see also Arteaga v. Mukasey, 511 F.3d 940, 942 n. 1 (9th Cir.2007). Notwithstanding any limitations on judicial review over discretionary determinations set forth in § 1252(a)(2)(B), section 106 of the Real ID Act explicitly provides for judicial review over constitutional claims or questions of law. See 8 U.S.C. § 1252(a)(2)(D) (as amended by Real ID Act § 106(a)(1)(A)(iii)); see also Fernandez-Ruiz v. Gonzales, 410 F.3d 585, 587 (9th Cir.2005), as adopted by Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1124 (9th Cir.2006) (en banc) (explaining that the Real ID Act restored judicial review of constitutional questions and questions of law presented in petitions for review of final removal orders). Accordingly, we have construed the jurisdictional grant of 8 U.S.C. § 1252(a)(2)(D) to encompass constitutional questions, pure questions of law, and the “application of statutes or regulations to undisputed facts, sometimes referred to as mixed questions of fact and law.” Ramadan v." }, { "docid": "19744320", "title": "", "text": "was a Christian. She subsequently gave him a gold ring and he left without harming her. Lengkong stated that she believed all of the attacks were carried out by Muslims because of statements made by the attackers and reports she read in the newspapers. In her application and testimony, Leng-kong also described incidents involving other Christian friends and colleagues who had been attacked. She additionally submitted various reports and articles that contained country information and detailed the religious conditions and violence in Indonesia. The IJ denied all claims for relief, except voluntary departure, concluding that even though Lengkong and Rondonuwu appeared to be generally credible, they had failed to meet their burden of establishing that they had suffered past perse cution or that they had a well-founded fear of future persecution in Indonesia on account of their religion. The IJ additionally concluded that the petitioners had failed to show that it was more likely than not that they would be tortured if they return to Indonesia. The BIA affirmed the IJ’s decision. II. Lengkong and Rondonuwu contend that the IJ and BIA erred in denying their application for asylum, withholding of removal, and protection under CAT. We review a BIA’s determination under the substantial evidence standard and will reverse only if “it would not be possible for any reasonable fact-finder to come to the conclusion reached by the administrator.” Menendez-Donis v. Ashcroft, 360 F.3d 915, 918 (8th Cir.2004). Because the BIA adopted the IJ’s decision and added reasoning of its own, we review both decisions together. Setiadi v. Gonzales, 437 F.3d 710, 713 (8th Cir.2006). A. To be eligible for asylum, an applicant must demonstrate that he or she is a refugee — a person who is unwilling or unable to return to his or her home country “ ‘because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.’ ” Berte v. Ashcroft, 396 F.3d 993, 996 (8th Cir.2005) (quoting 8 U.S.C. § 1101(a)(42)(A)). Persecution has been generally defined as “ ‘the infliction or threat of" }, { "docid": "22095851", "title": "", "text": "already reversed his two prior asylum rulings. On January 25, 2006, the IJ issued an oral decision granting Brezilien’s application for CAT relief. The IJ found that criminal deportees who are returned to Haiti are detained for an indeterminate amount of time, and that the conditions of detention in a Haitian prison could amount to torture. Both parties appealed the IJ’s January 25, 2006 decision to the BIA. The BIA reversed the IJ’s grant of CAT relief, finding that such relief could not be based solely on prison conditions in Haiti and the indefinite detention of detainees, in light of In re J-E-, 23 I. & N. Dec. 291 (BIA 2002) and Theagene v. Gonzales, 411 F.3d 1107 (9th Cir.2005). The BIA also rejected Brezilien’s argument that he would be targeted for torture by the authorities while detained due to his political affiliations, as well as his argument that worsening country conditions qualified him for asylum because, in its view, Brezilien had failed to establish how he would be recognized throughout the country as an Aristide supporter. The BIA remanded to the IJ to enter a final order of removal that encompassed all of the IJ’s and BIA’s decisions. The IJ entered the order on June 30, 2006. Brezilien timely petitioned for review. II. Jurisdiction Our jurisdiction to review a final order of removal is governed by 8 U.S.C. § 1252 (2000); Immigration and Nationality Act § 242, as amended by the Real ID Act of 2005, Pub.L. No. 109-13, Div. B, § 106, 119 Stat. 231 (May 11, 2005). With respect to asylum, withholding of removal, and CAT claims of a petitioner who was convicted of an offense covered by § 1252(a)(2)(C), we have jurisdiction to review the denial of an asylum application and to review the denial of withholding of removal and CAT relief when a petitioner raises questions of law, including mixed questions of law and fact, or constitutional claims. Morales v. Gonzales, 478 F.3d 972, 978-80 (9th Cir.2007). Moreover, as to “factual issues, when an IJ does not rely on an alien’s conviction in denying CAT" }, { "docid": "19944063", "title": "", "text": "political party affiliation. Finally, the IJ stated that appellant had not sufficiently demonstrated that the changes in country conditions in Haiti had been inadequate to mitigate his fears of persecution. On all of these bases, the IJ held that “the evidence is lacking to establish a well-founded fear of persecution, a clear probability of persecution, [or] that the authorities would ever detain this respondent and subject him to torture.” Therefore, all three claims for relief were denied. On appeal, the BIA affirmed and adopted the IJ’s decision, adding only that appellant had not provided evidence of any exceptional circumstances that would excuse his failure to timely file an application for asylum. Where the BIA adopts an IJ’s decision, we review the relevant portion of the IJ’s opinion as though it were the decision of the BIA. Stroni v. Gonzales, 454 F.3d 82, 86-87 (1st Cir.2006). We reverse findings of fact only if they are unsupported by substantial evidence, meaning that a reasonable fact finder reviewing the entire record would be compelled to conclude to the contrary. Id. at 87. II. The INA bars any court from exercising jurisdiction over a determination by the Attorney General regarding the satisfaction of the timeliness requirement for asylum applications. 8 U.S.C. § 1158(a)(3); see also Stroni, 454 F.3d at 87; Sharari v. Gonzales, 407 F.3d 467, 473 (1st Cir.2005). The BIA has determined that appellant’s application for asylum was not timely; we have no jurisdiction to review that decision. We review only appellant’s withholding of removal and CAT claims. To be eligible for withholding of removal, an alien must show that his or her “life or freedom would be threatened in [his or her home country] because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). In order to carry his or her burden of persuasion, the alien must show either past persecution (thereby giving rise to a rebutta-ble presumption of future persecution) or that it is more likely than not that he will suffer persecution on account of a protected ground if he" }, { "docid": "22054333", "title": "", "text": "not expel, return ... or extradite a person to another country where there are substantial grounds for believing that he would be in danger of being subjected to torture.” Al-Saher v. INS, 268 F.3d 1143, 1146 (9th Cir.2001) (internal quotation marks and citation omitted) (omission in original), amended by 355 F.3d 1140 (9th Cir.2004). To qualify for CAT relief, an applicant must establish that “he [or she] is more likely than not to suffer intentionally-inflicted cruel and inhuman treatment” if removed. Nuru v. Gonzales, 404 F.3d 1207, 1221 (9th Cir.2005) (citation omitted). An adverse credibility determination does not, by itself, necessarily defeat a CAT claim, Kamalthas v. INS, 251 F.3d 1279, 1282-83 (9th Cir.2001), because CAT claims are “analytically separate” from claims for withholding of removal. Id. at 1283. Rather, in determining whether a petitioner will more likely than not be tortured if returned to his or her home country, “all evidence relevant to the possibility of future torture shall be considered.” 8 C.F.R. § 1208.16(c)(3). Ka-malthas only requires that a petitioner have the opportunity to introduce additional “documentary evidence of torture,” and that the IJ and BIA consider all the evidence presented. Almaghzar v. Gonzales, 457 F.3d 915, 921-22 (9th Cir.2006). Contrary to Carrion Garcia’s assertion, we do not require that “the BIA ... discuss each piece of evidence submitted.” Cole v. Holder, 659 F.3d 762, 771 (9th Cir.2011). Unless clear indications exist that the IJ or BIA did not consider the documentary evidence, general language that the agency “considered all the evidence before [it]” is sufficient. Id. at 771 (quoting Almaghzar, 457 F.3d at 922) (alteration in original). Nothing demonstrates that the BIA neglected to consider all of the evidence before it. Carrion Garcia’s adverse credibility determination undermines both her own testimony and the external evidence reliant on it, including most of the police report filed by her mother, her mother’s affidavit, and the affidavit of the New York man familiar with her situation, all of which were derived from her own assertions. None of these sources shows independent, first-hand knowledge of Carrion Garcia’s alleged domestic abuse, and" }, { "docid": "22253965", "title": "", "text": "the applicant must “establish that it is more likely than not that ... she would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 208.16(c)(2). Although an adverse credibility finding does not necessarily preclude relief, a claim for relief under CAT may still be rejected when the petitioner fails to provide evidence beyond those statements that the IJ determined were not credible. See Farah, 348 F.3d at 1157 (affirming the BIA’s rejection of a CAT claim when the petitioner failed to point to any “other evidence that he could claim the BIA should have considered in making its determination under [CAT]”). Here, the only evidence in the record to support Petitioner’s CAT claim is the same testimony that the IJ found not credible and the Country Report on Human Rights practices for China (“Country Report”). Although the Country Report confirms that religious persecution does occur in China, by itself, the Country Report is insufficient to compel the conclusion that Petitioner would be tortured if returned. See Almaghzar v. Gonzales, 457 F.3d 915, 922-23 (9th Cir.2006) (rejecting a petitioner’s CAT claim that was supported solely by discredited testimony and the relevant country report). Therefore, because Peti tioner’s CAT claim is based on the same testimony found to be not credible, and she points to no other evidence that the IJ should have considered, substantial evidence supports the denial of CAT relief. See Farah, 348 F.3d at 1157. IV. DUE PROCESS “[A]n alien who faces deportation is entitled to a full and fair hearing of [her] claims and a reasonable opportunity to present evidence on [her] behalf.” Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000). We will reverse the BIA’s decision on due process grounds “if the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case.” Id. at 971 (internal quotation marks omitted). “To warrant a new hearing, the alien must also show prejudice, which means that ‘the outcome of the proceeding may have been affected by the alleged violation.’ ” Cinapian v. Holder, 567 F.3d 1067, 1074 (9th Cir.2009) (quoting" }, { "docid": "22818353", "title": "", "text": "or freedom would be threatened ... because of [her] race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). An applicant “who has failed to establish the less stringent well-founded fear standard of proof required for asylum relief is necessarily also unable to establish an entitlement to withholding of removal.” Anim v. Mukasey, 535 F.3d 243, 253 (4th Cir.2008) (quotations and citation omitted). To be eligible for protection under CAT, the applicant must show that it is “more likely than not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 208.16(c)(1), (2); see Gandziami-Mickhou, 445 F.3d at 354. The likelihood of torture, however, need not be tied to a protected ground under CAT. See Dankam v. Gonzales, 495 F.3d 113, 115-16 (4th Cir.2007). “We review the BIA’s administrative findings of fact under the substantial evidence rule, and we are obliged to treat them as conclusive unless the evidence before the BIA was such that any reasonable adjudicator would have been compelled to conclude to the contrary.” Haoua v. Gonzales, 472 F.3d 227, 231 (4th Cir.2007). We review legal issues de novo. Abdel-Rahman v. Gonzales, 493 F.3d 444, 449 (4th Cir.2007). The agency decision that an alien is not eligible for asylum is “conclusive unless manifestly contrary to the law and an abuse of discretion.” 8 U.S.C. § 1252(b)(4)(D). When, as here, the BIA adopts the IJ’s decision and includes its own reasons for affirming, we review both decisions. Camara v. Ashcroft, 378 F.3d 361, 366 (4th Cir.2004). In considering Marynenka’s petition for review, we “presume that [she] testified credibly” because neither the IJ nor the BIA made an express adverse credibility determination. Lin-Jian v. Gonzales, 489 F.3d 182, 191 (4th Cir.2007). Even though a few of the IJ’s statements im plied doubt about certain aspects of Marynenka’s testimony, both the IJ and the BIA rested then.' decisions on the lack of persuasive corroborating evidence. At oral argument the government conceded that Marynenka’s testimony must be taken as credible because the IJ did not make an" }, { "docid": "22784753", "title": "", "text": "and Silitonga, charging them with removability for overstaying their visas. Tampubolon and Silitonga conceded removability and applied for relief from removal, including cancellation of removal, asylum, withholding of removal, and protection under CAT. The IJ denied all applications for relief. The IJ denied petitioners’ application for asylum because they failed to file their applications within one year of arrival, and also failed to demonstrate changed circumstances. The IJ denied petitioners’ application for withholding of removal because neither had suffered past persecution and both had similarly situated siblings living in Indonesia who had not experienced problems practicing their Christian faith. The IJ denied petitioners’ application for cancellation of removal because they failed to demonstrate that removal would result in exceptional and extremely unusual hardship to their two U.S. citizen daughters. The BIA adopted and affirmed the decision of the IJ, citing Matter of Burbano, 20 I. & N. Dec. 872 (B.I.A.1994). Petitioners timely petitioned for review. We have ju risdiction over the petition pursuant to 8 U.S.C. § 1252(a). II. STANDARD OF REVIEW Where, as here, the BIA cites its decision in Burbano, and does not express disagreement with any part of the IJ’s decision, we review the IJ’s decision as if it were the BIA’s decision. See Cinapian v. Holder, 567 F.3d 1067, 1073(9th Cir.2009). The BIA’s determination that petitioners have not established eligibility for asylum or withholding of removal is reviewed for substantial evidence. See, e.g., Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006). Under the substantial evidence standard, the BIA’s determinations will be upheld “if the decision is ‘supported by reasonable, substantial, and probative evidence on the record considered as a whole.’ ” Zhao v. Mukasey, 540 F.3d 1027, 1029 (9th Cir.2008) (quoting Abebe v. Gonzales, 432 F.3d 1037, 1039-40 (9th Cir. 2005) (en banc)). Reversal, however, is appropriate when “the evidence in the record compels a reasonable factfinder to conclude that the [BIA’s] decision is incorrect.” Id. Purely legal questions, including jurisdictional questions, are reviewed de novo. See Taslimi v. Holder, 590 F.3d 981, 984 (9th Cir.2010). III. ASYLUM To qualify for asylum, an applicant" }, { "docid": "23579207", "title": "", "text": "not that [they] [ ] would be tortured if returned to the proposed country of removal.’” Id. (quoting Ngure, 367 F.3d at 992); 8 C.F.R. § 208.16(c)(2). In considering such a claim, all evidence relevant to the possibility of future torture should be considered, including but not limited to: past torture; the petitioners’ ability to relocate to another part of the country where torture is unlikely; and gross, flagrant, or mass violations of human rights. Turay, 405 F.3d at 668. Where a petitioner fails to establish eligibility for asylum, “it is likely that he will not succeed under CAT,” and a separate CAT analysis is needed only if petitioner “presented evidence that he is likely to be tortured for reasons unrelated to his asylum claim.” Rodriguez v. Gonzales, 441 F.3d 593, 595 (8th Cir.2006). Because there is no evidence in the record, apart from that presented in support of the asylum claim, showing petitioners would more likely than not be subjected to torture if returned, the BIA and IJ did not err in denying petitioners’ CAT claim. Upon independent review of the record, it is clear that the petitioners did not raise the IJ’s denial of voluntary departure before the BIA. This failure to raise the issue before the BIA precludes our review of that voluntary departure determination or whether the BIA erred in failing to analyze the basis for denial. See Frango v. Gonzales, 437 F.3d 726, 728 (8th Cir.2006) (declining to review claims that IJ was biased and denied petitioner fair hearing where petitioner failed to present those issues to BIA and presented no reason to exempt him from general exhaustion requirement). Even if the issue had been raised before the BIA, we lack jurisdiction to review a denial of voluntary departure. 8 U.S.C. § 1229c(f) (no court shall have jurisdiction to review the denial of voluntary departure); Fofanah v. Gonzales, 447 F.3d 1037, 1040-41 (8th Cir.2006). For the foregoing reasons, we deny the petition for relief." }, { "docid": "22054334", "title": "", "text": "to introduce additional “documentary evidence of torture,” and that the IJ and BIA consider all the evidence presented. Almaghzar v. Gonzales, 457 F.3d 915, 921-22 (9th Cir.2006). Contrary to Carrion Garcia’s assertion, we do not require that “the BIA ... discuss each piece of evidence submitted.” Cole v. Holder, 659 F.3d 762, 771 (9th Cir.2011). Unless clear indications exist that the IJ or BIA did not consider the documentary evidence, general language that the agency “considered all the evidence before [it]” is sufficient. Id. at 771 (quoting Almaghzar, 457 F.3d at 922) (alteration in original). Nothing demonstrates that the BIA neglected to consider all of the evidence before it. Carrion Garcia’s adverse credibility determination undermines both her own testimony and the external evidence reliant on it, including most of the police report filed by her mother, her mother’s affidavit, and the affidavit of the New York man familiar with her situation, all of which were derived from her own assertions. None of these sources shows independent, first-hand knowledge of Carrion Garcia’s alleged domestic abuse, and Carrion Garcia submitted no independent corroborating evidence such as medical records, police investigative reports or witness statements. In circumstances such as these, the BIA’s general language that “there is no evidence in the record that the applicant was ever tortured in the Dominican Republic, or that she faces a dear probability of torture” is sufficient to demonstrate that all evidence was considered. To say that there is “no evidence in the record” clearly implies that the BIA has looked at all of the evidence in the record. Dr. Westhoffs expert testimony and the country report, although supporting the conclusion that domestic violence is a widespread problem in the Dominican Republic, do not compel the conclusion that Carrion Garcia in particular was a victim. As such, we defer to the IJ and BIA’s conclusion that relief under the CAT is unavailable. See Almaghzar, 457 F.3d at 922-23. VI Carrion Garcia did not show that the record compels the conclusion that the IJ and BIA erred in reaching the adverse credibility determination. Because her testimony and the" }, { "docid": "7599568", "title": "", "text": "The Department of Homeland Security (“DHS”) placed the petitioner and her family in removal proceedings on February 21, 2006. Petitioner conceded removability. On May 18, 2007, the IJ held a hearing on the merits of Sugiarto’s application. In an oral decision issued that day, the IJ found that petitioner testified credibly but that her testimony as to the attempted robbery and the bomb threat in Indonesia failed to establish harm sufficiently severe as to rise to the level of “past persecution.” Moreover, the IJ found that nothing in the record established a nexus between these incidents and petitioner’s status as a Christian. The IJ further found that petitioner failed to show a well-founded fear of future persecution in that petitioner has not shown that she and her family were specifically singled out on account of their religion, nor that there is a “pattern or practice” of persecution against Christians in Indonesia. The IJ thus denied the petitioner’s applications for asylum, withholding, and CAT relief, but granted voluntary departure to Sugiarto and Jeisy. Sugiarto timely appealed to the BIA, which, in an order issued October 20, 2008, affirmed the IJ’s reasoning and decision, and dismissed the appeal. This petition for review followed. II. Discussion A. Standard of Review This court has appellate jurisdiction over petitions for judicial review from the BIA under 8 U.S.C. § 1252. “Review of legal rulings is de novo but is deferential as to findings of fact and the determination as to whether the facts support a claim of persecution.” Jorgji v. Mukasey, 514 F.3d 53, 57 (1st Cir.2008). We review fact-based determinations under a “substantial evidence” standard, which requires that we must affirm provided that the BIA’s decision is “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Bocova v. Gonzales, 412 F.3d 257, 262 (1st Cir.2005) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)); see also 8 U.S.C. § 1252(b)(4)(B). Unless the record compels a contrary conclusion, evidence in the record supporting a conclusion contrary to that reached by the BIA is not" }, { "docid": "23023750", "title": "", "text": "that it was “implausible that someone would travel all the way from China to Mexico, with the claimed purpose of applying for asylum in the United States, and ultimately simply return to China despite fears of harm awaiting him there.” The BIA denied Cui’s request for withholding of removal and for CAT relief, commenting: “[I]n the absence of credible evidence reflecting any reason why the Chinese government would seek [Cui], there is no evidence of a clear probability of torture at the instigation of, or with the consent or acquiescence of, current government officials.” Ill Where, as here, the BIA’s decision incorporates part of the IJ’s opinion as its own, we review both. Aguilar-Ramos v. Holder, 594 F.3d 701, 704 (9th Cir.2010) (citing Molina-Estrada v. I.N.S., 293 F.3d 1089, 1093 (9th Cir.2002)). We review the BIA’s findings of fact, including credibility findings, for substantial evidence and uphold the BIA’s findings unless the evidence compels a contrary result. Almaghzar v. Gonzales, 457 F.3d 915, 920 (9th Cir.2006); see also Shrestha v. Holder, 590 F.3d 1034, 1039, 1048 (9th Cir.2010). “While the substantial evidence standard demands deference to the IJ, ‘[w]e do not accept blindly an IJ’s conclusion that a petitioner is not credible. Rather, we examine the record to see whether substantial evidence supports that conclusion and determine whether the reasoning employed by the IJ is fatally flawed.’ ” Gui v. I.N.S., 280 F.3d 1217, 1225 (9th Cir.2002) (quoting Osorio v. I.N.S., 99 F.3d 928, 931 (9th Cir.1996)). The applicant bears the burden of establishing eligibility for asylum through credible evidence. See Liu v. Holder, 640 F.3d 918, 925 (9th Cir.2011); Singh v. Ashcroft, 367 F.3d 1139, 1142 (9th Cir.2004); Ghaly v. I.N.S., 58 F.3d 1425, 1428 (9th Cir.1995). To prevail, an applicant must present substantial evidence that would support a finding that “any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); Ali v. Holder, 637 F.3d 1025, 1029 (9th Cir.2011). “We have held that the uncorroborated testimony of the applicant, if credible, may be sufficient to sustain the applicant’s burden.” See Jibril v. Gonzales," }, { "docid": "22253964", "title": "", "text": "de novo review. Given the extremely deferential standard of review, anything approaching a de novo review is improper. Thus, Petitioner’s asylum claim must fail. B To demonstrate eligibility for withholding of removal, “the petitioner must show a ‘clear probability’ of the threat to life or freedom if deported to his or her country of nationality.” Tamang v. Holder, 598 F.3d 1083, 1091 (9th Cir.2010). “The clear probability standard is more stringent than the well-founded fear standard for asylum.” Id. Consequently, because Petitioner’s asylum claim fails, her withholding of removal claim also fails. See Farah, 348 F.3d at 1156 (“Because we affirm the BIA’s determination that Farah failed to establish eligibility for asylum, we also affirm the denial of Farah’s application for withholding of removal.”). C Article 3 of the Convention Against Torture (“CAT”) prohibits states from returning anyone to another state “where there are substantial grounds for believing that [she] would be in danger of being subjected to torture.” Khourassany v. INS, 208 F.3d 1096, 1099 (9th Cir.2000). To establish eligibility for relief under CAT, the applicant must “establish that it is more likely than not that ... she would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 208.16(c)(2). Although an adverse credibility finding does not necessarily preclude relief, a claim for relief under CAT may still be rejected when the petitioner fails to provide evidence beyond those statements that the IJ determined were not credible. See Farah, 348 F.3d at 1157 (affirming the BIA’s rejection of a CAT claim when the petitioner failed to point to any “other evidence that he could claim the BIA should have considered in making its determination under [CAT]”). Here, the only evidence in the record to support Petitioner’s CAT claim is the same testimony that the IJ found not credible and the Country Report on Human Rights practices for China (“Country Report”). Although the Country Report confirms that religious persecution does occur in China, by itself, the Country Report is insufficient to compel the conclusion that Petitioner would be tortured if returned. See Almaghzar v. Gonzales, 457 F.3d" }, { "docid": "22871604", "title": "", "text": "Report, the IJ acknowledged that gay people suffered discrimination, but characterized violence against them as “random acts of violence” that do not constitute persecution. Thus the IJ concluded that Brom-field had not carried his burden and was not entitled to either form of relief. Bromfield filed a pro se brief before the BIA arguing that the IJ erred in denying relief because Bromfield had shown regular and widespread persecution and torture of homosexuals in Jamaica carried out at least in part by the Jamaican government. The BIA dismissed the appeal and affirmed the IJ’s conclusion that Bromfield failed to sustain the high burden of proof applicable to withholding of removal. The BIA also stated that the record supported the conclusion that Bromfield failed to establish that he would more likely than not be tortured if returned to Jamaica, but did not offer any explanation. Bromfield timely petitioned for review. II. Jurisdiction The government argues that we do not have jurisdiction over this petition for review because Bromfield was found removable on the basis of his conviction for an aggravated felony. We have jurisdiction to determine whether we have jurisdiction, Ramadan v. Gonzales, 479 F.3d 646, 649 (9th Cir.2007) (per curiam), and we conclude that we do. This court lacks jurisdiction “to review any final order of removal against an alien who is removable by reason of having committed [an aggravated felony].” 8 U.S.C. § 1252(a)(2)(C); see also 8 U.S.C. § 1227(a)(2)(A)(iii). But this provision applies only “to removal orders, and not to applications for asylum, withholding of removal, or CAT relief.” Arteaga v. Mukasey, 511 F.3d 940, 942 n. 1 (9th Cir.2007) (citing Morales v. Gonzales, 478 F.3d 972, 980 (9th Cir.2007)). Therefore, if the IJ denies withholding of removal or CAT relief on the merits, rather than relying on the aggravated felony conviction, we have jurisdiction to review the merits of these claims. See id. (reviewing withholding of removal and CAT claims on the merits despite the fact that petitioner was found removable as an alien convicted of an aggravated felony); see also Unuakhaulu v. Gonzales, 416 F.3d 931," }, { "docid": "10644171", "title": "", "text": "also denied Lin’s requests for withholding of removal, CAT relief, and voluntary departure. The IJ held that Lin had not established a likelihood that he would be subject to persecution, as required for withholding of removal, or a likelihood that he would be subject to torture, as required for CAT relief, because Chinese authorities merely searched for him and did so only on account of his assistance to the Falun Gong practitioner, not his political opinion or religion. The Board of Immigration Appeals (“BIA”) adopted and affirmed the decision of the IJ. Lin timely petitioned for review. II Lin first argues that denial of his asylum application is not supported by the record. The government responds that we lack jurisdiction to review such denial. A The Immigration and Nationality Act (“INA”), as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, requires that an asylum applicant “demonstrate[ ] by clear and convincing evidence that the application has been filed within 1 year after the date of the alien’s arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B). Although 8 U.S.C. § 1158(a)(3) provides that “no court shall have jurisdiction to review any determination” concerning the one year filing deadline, section 106 of the REAL ID Act of 2005 restored our jurisdiction over “constitutional claims or questions of law” raised in a petition for review. Id. § 1252(a)(2)(D); see Tamang v. Holder, 598 F.3d 1083, 1088 (9th Cir.2010); Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1124 (9th Cir.2006) (en banc). In Ramadan v. Gonzales, 479 F.3d 646 (9th Cir. 2007) (per curiam), we held that “questions of law” include “not only ‘pure’ issues of statutory interpretation, but also application of law to undisputed facts, sometimes referred to as mixed questions of law and fact.” Id. at 648. Applying the principle of Ramadan, we held in Khunaverdiants v. Mukasey, 548 F.3d 760 (9th Cir.2008), that we nevertheless have jurisdiction over the determination whether an alien applied for asylum within one year of arriving in the United States because the underlying facts are undisputed. Id. at 765-66. We further held that" }, { "docid": "22385204", "title": "", "text": "that term has been defined in the case law if she were to return to Indonesia, absent a conclusion by either the BIA or the Circuit Court that such a pattern or practice conclusion would be supported by substantial evidence in this record.” A.R. 109. On December 2, 2004, the IJ denied Wong’s petition for asylum, withholding of removal, and relief under the CAT, but granted her voluntary departure. Wong again appealed, and the BIA dismissed Wong’s case on June 28, 2006. The BIA determined that Wong had failed to establish a pattern or practice of persecution of ethnic Chinese Christians in Indonesia and noted that the grant of asylum to Wong’s husband was not dispositive of her asylum claim. The BIA observed that the U.S. State Department’s 2003 and 2004 International Religious Freedom Reports for Indonesia (Religious Freedom Reports) indicated that the government had taken steps to control anti-Christian violence, and that violence continued only in specific parts of Indonesia. Similarly, while the U.S. State Department’s 2003 and 2004 Country Reports on Human Rights Practices for Indonesia (Country Reports) documented ongoing harassment and discrimination against ethnic Chinese in Indonesia, the reports indicated that violence had ended. The BIA also determined that Wong was not eligible for withholding of removal or relief under the CAT. This timely petition for review followed. II. We have jurisdiction to review a final order of removal under 8 U.S.C. § 1252. See Briseno-Flores v. Att’y Gen., 492 F.3d 226, 228 (3d Cir.2007). Removal proceedings occurred in Philadelphia, Pennsylvania, and venue is therefore proper under 8 U.S.C. § 1252(b)(2). Where the BIA renders its own decision and does not merely adopt the opinion of the IJ, we review the BIA’s decision, not that of the IJ. Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir.2002). The BIA is bound by the IJ’s factual determinations “including findings as to the credibility of testimony” and reviews these findings only to determine whether they are clearly erroneous. 8 C.F.R. § 1003.1(d)(3). “The BIA’s conclusions regarding evidence of past persecution and the well-founded fear of persecution are findings of" }, { "docid": "22405335", "title": "", "text": "PER CURIAM: Petitioner, Merlinda Santoso (“petitioner” or “Santoso”), a native and citizen of Indonesia, seeks review of a September 28, 2007 order of the Board of Immigration Appeals (“BIA”) affirming the January 30, 2006 decision of an immigration judge (“IJ”) denying Santoso’s application for asylum, withholding of removal, relief under the Convention Against Torture (“CAT”), and voluntary departure. In her petition to this Court, Santoso argues that the BIA and the IJ failed adequately to address her claim that there exists a pattern or practice of persecution of ethnic Chinese and Catholics in Indonesia. BACKGROUND Petitioner arrived in the United States on or about August 2,1999, with authorization to remain for a temporary period not to exceed six moths. On May 23, 2005, nearly six years after her arrival, petitioner filed an application for asylum, withholding of removal, and relief under the CAT. Shortly thereafter, the Department of Homeland Security charged her with removal pursuant to 8 U.S.C. § 1227(a)(1)(B) for remaining in the United States for a time longer than permitted and ordered her to appear before an IJ on September 9, 2005. At her hearing before the IJ, petitioner conceded her removability but requested asylum, withholding of removal, CAT protection, and voluntary departure. On January 30, 2006, after hearing petitioner’s testimony in support of her application, the IJ denied the relief sought. That decision was affirmed by the BIA on September 28, 2007, whereupon petitioner timely filed for review by this Court. I. Where the BIA adopts the decision of the IJ and supplements the IJ’s decision, we review the decision of the IJ as supplemented by the BIA. Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s factual findings under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). “We review de novo questions of law and the application of law to undisputed fact.” Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008)." }, { "docid": "23579201", "title": "", "text": "voluntarily depart, and thus the IJ denied voluntary departure. In a per curiam order, the BIA affirmed the IJ’s credibility finding and held that the incidents described by the Quomsiehs were insufficient — singularly or cumulatively — to rise to the level of persecution. The BIA further held that the Quomsiehs demonstrated a subjective fear of returning to the West Bank but had failed to show their fear was objectively reasonable. The Quomsiehs contend on appeal that (1) the IJ and BIA erred in denying their application for asylum, withholding of removal, and protection under CAT because they established past persecution and a well-founded fear of future persecution, (2) the record evidence supports a finding that they would more likely than not suffer torture if removed, and thus they are entitled to relief under CAT, and (3) the BIA failed to review the IJ’s denial of voluntary departure, therefore the matter should be remanded to the BIA for proper consideration. We review a BIA’s factual decision under the substantial evidence standard, reversing where petitioners demonstrate “that the evidence was so compelling that no reasonable fact finder could fail to find in favor of the petitioner[s].” Turay v. Ashcroft, 405 F.3d 663, 667 (8th Cir.2005); see also 8 U.S.C. § 1252(b)(4)(B) (“[T]he administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.”). Where, as here, the BIA adopts the IJ’s decision and adds its own reasoning, we review both decisions together. See Setiadi v. Gonzales, 437 F.3d 710, 713 (8th Cir.2006). Asylum may be granted to a refugee. 8 U.S.C. § 1158(b)(1)(A). A “refugee” is defined as a person who is outside his native country and is unable or unwilling to return to his native country “because of persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). “A well-founded fear is one that is both subjectively genuine and objectively reasonable.” Feleke v. INS, 118 F.3d 594, 598 (8th Cir.1997). Subjectively, the petitioner must demonstrate that" } ]

[ { "docid": "22546646", "title": "", "text": "of the writ, McCleskey v. Zant, 499 U. S. 467 (1991); or (c) procedurally defaulted claims in which the petitioner failed to follow applicable state procedural rules in raising the claims, Murray v. Carrier, 477 U. S. 478 (1986). These cases are premised on our concerns for the finality of state judgments of conviction and the “significant costs of federal habeas review.” McCleskey, supra, at 490-491; see, e.g., Engle v. Isaac, 456 U. S. 107, 126-128 (1982). We have previously held that even if a state prisoner cannot meet the cause and prejudice standard, a federal court may hear the merits of the successive claims if the failure to hear the claims would constitute a “miscarriage of justice.” In a trio of 1986 decisions, we elaborated on the miscarriage of justice, or “actual innocence,” exception. As we explained in Kuhlmann v. Wilson, supra, the exception developed from the language of the federal habeas statute, which, prior to 1966, allowed successive claims to be denied without a hearing if the judge were “satisfied that the ends of justice will not be served by such inquiry.” Id., at 448. We held that despite the removal of this statutory language from 28 U. S. C. § 2244(b) in 1966, the miscarriage of justice exception would allow successive claims to be heard if the petitioner “establishes] that under the probative evidence he has a colorable claim of factual innocence.” Kuhlmann, supra, at 454. In the second of these eases we held that the actual innocence exception also applies to proeedurally defaulted claims. Murray v. Carrier, supra. In Smith v. Murray, 477 U. S. 527 (1986), we found no miscarriage of justice in the failure to examine the merits of proeedurally defaulted claims in the capital sentencing context. We emphasized that the miscarriage of justice exception is concerned with actual as compared to legal innocence, and acknowledged that actual innocence “does not translate easily into the context of an alleged error at the sentencing phase of a trial on a capital offense.” Id., at 537. We decided that the habeas petitioner in that case had" } ]

[ { "docid": "13757961", "title": "", "text": "during his first habeas proceeding. See McCleskey v. Zant, 499 U.S. 467, 490, 111 S.Ct. 1454, 1467, 113 L.Ed.2d 517 (1991); Murray v. Delo, 34 F.3d 1367, 1372 (8th Cir.1994), cert. denied, 515 U.S. 1136, 115 S.Ct. 2567, 132 L.Ed.2d 819 (1995). A federal habeas petitioner can overcome a procedural default or an abuse of the writ by showing cause and prejudice, see McCleskey, 499 U.S. at 493, 111 S.Ct. at 1469 or by showing “that a fundamental miscarriage of justice would result from a failure to entertain the claim,” id. at 495, 111 S.Ct. at 1470. Lamp argues that he presented a genuine issue of material fact as to whether he established cause for his procedural default on counts One, Two, Three, and Five. To establish cause for his procedural default, Lamp must show that “some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986). In proceedings in which the Sixth Amendment requires legal representation, ineffective assistance of counsel is cause for a procedural default. See id. However, because a defendant is not constitutionally entitled to effective assistance of counsel in state post-conviction proceedings, see Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991); Nolan v. Armontrout, 973 F.2d 615, 616-17 (8th Cir.1992), a state postconvietion attorney’s rendering of ineffective assistance will not constitute cause for a procedural default. See Nolan, 973 F.2d at 617. Lamp attempts to avoid this result by arguing that he has shown cause for his failure to properly raise his claims because he was denied his “constitutional right [of] meaningful access to the combs during his postconvietion proceedings.” Lamp Br. at 24. While it is conceivable that the denial of access to the courts may be imputed to the State and thus constitute cause in some circumstances, we conclude that Lamp did in fact have meaningful access to the postconvietion court and therefore has failed to establish cause to excuse his procedural default. A criminal defendant’s" }, { "docid": "11090633", "title": "", "text": "unless the petitioner can show cause for the failure to raise the claim in an earlier habeas petition, and prejudice therefrom. Additionally, as in cases of procedural default, even a petitioner who fails to establish cause and prejudice may nonetheless have his \"default\"i.e. his failure to raise a claim in a previous habeas petition-excused if he can show that the failure to hear his claim will result in a fundamental miscarriage of justice. id. As the Court has made clear in its procedural default cases, “cause ... requires a showing of some external impediment preventing counsel from constructing or raising the claim.” Murray v. Carrier, 477 U.S. 478, 492, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397 (1986); see also Coleman v. Thompson, - U.S. -, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); McCleskey v. Zant, 111 S.Ct. at 1472 (“For cause to exist, the external impediment, whether it be government interference or the reasonable unavailability of the factual basis for the claim, must have prevented petitioner from raising the claim.”); Amadeo v. Zant, 486 U.S. 214, 222, 108 S.Ct. 1771, 1776-77, 100 L.Ed.2d 249 (1988). The exception to cause for fundamental miscarriages of justice is a narrow one. It applies only in “extraordinary instances when a constitutional violation probably has caused the conviction of one innocent of the crime.” McCleskey v. Zant, 111 S.Ct. at 1470; Murray v. Carrier, 477 U.S. at 495-96, 106 S.Ct. at 2649-50 (“actually innocent”); Dugger v. Adams, 489 U.S. 401, 410-12 n. 6, 109 S.Ct. 1211, 1220 n. 6, 103 L.Ed.2d 435 (1989). We suggested in Coleman that a successive petition — i.e., one alleging claims raised and reached on the merits in earlier petitions — would be evaluated under the “factual innocence” test of Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986), or the three-part test of Sanders v. United States, 373 U.S. 1, 15, 83 S.Ct. 1068, 1077, 10 L.Ed.2d 148 (1963) (successive petition would be dismissed if same ground was previously argued and determined adversely to petitioner and if the “ends of justice” would not be served" }, { "docid": "10099152", "title": "", "text": "applicability of Caldwell, or represents application of a procedural bar with regard to a type of claim that Florida does not regularly and consistently bar. See Ake v. Oklahoma, 470 U.S. 68, 74-75, 105 S.Ct. 1087, 1092-93, 84 L.Ed.2d 53 (1985) (when application of state procedural bar depends on an antecedent ruling as to whether federal constitutional error has been committed there is no independent and adequate state law ground); Spencer, 781 F.2d at 1470 (state procedural rule that is sporadically applied is not independent and adequate state ground). Further, we find that Adams has established cause and prejudice for any procedural default resulting from his failure to raise this claim on direct appeal. When “a constitutional claim is so novel that its legal basis is not reasonably available to counsel” at the time of a petitioner’s procedural default, the petitioner has cause for the failure to raise the claim in accordance with the state procedural rule. Reed v. Ross, 468 U.S. 1, 16, 104 S.Ct. 2901, 2910, 82 L.Ed.2d 1 (1984). Conversely, when the “tools to construct [a] constitutional claim” are available, then the claim is not sufficiently novel to constitute cause for failure to comply with state procedural rules because “[wjhere the basis of a constitutional claim is available, and other de fense counsel have perceived and litigated that claim, the demands of comity and finality counsel against labeling alleged unawareness of the objection as cause for a procedural default.” Engle, 456 U.S. at 133-34, 102 S.Ct. at 1574-75. “[T]he question is not whether subsequent legal developments have made counsel’s task easier, but whether at the time of the default the claim was ‘available’ at all.” Smith v. Murray, - U.S. -, 106 S.Ct. 2661, 2667, 91 L.Ed.2d 434 (1986). Because we find that Adams’ Caldwell claim was so novel at the time of Adams’ trial in October 1978 and his sentencing and appeal in early 1979 that its legal basis was not reasonably available at that time, we find that Adams has established cause for any procedural default. The Supreme Court’s decision in Furman v. Georgia, 408" }, { "docid": "22975068", "title": "", "text": "procedural default and consider the merits of a defaulted claim that asserts a constitutional violation. See Murray v. Carrier, 477 U.S. 478, 495-96, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Reed v. Ross, 468 U.S. 1, 9, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984). But procedural default in state court will bar federal habeas review unless the petitioner can either: (1) show cause for the default and actual prejudice as a result of the constitutional violation, or (2) demonstrate that failure to consider the federal claim will result in a “fundamental miscarriage of justice,” Coleman, 501 U.S. at 750, 111 S.Ct. 2546, or, in other words, an unjust incarceration. See Murray, 477 U.S. at 496, 106 S.Ct. 2639 (“[I]n an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a [writ of habeas] may [be] grant[ed] even in the absence of a showing of cause for the procedural default.”). When transporting the concept of “actual innocence” to the sentencing phase of capital trials, the Supreme Court has required that the legal error the defendant raises (his constitutional claim) must have caused an actual error in determining guilt or eligibility for sentence, by “precluding] the development of true facts [or] resulting] in the admission of false ones.” See Smith v. Murray, 477 U.S. 527, 537-38, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986). In so ruling, the Court has made clear that the availability of actual innocence excep tion depends not on the “nature of the penalty” the state imposes, but on whether the constitutional error “undermined the accuracy of the guilt or sentencing determination.” Id. at 538-39, 106 S.Ct. 2661. Lower federal courts have followed this principle by recognizing the applicability of the actual innocence- exception to the sentencing phase of noncapital cases. See United States v. Maybeck, 23 F.3d 888, 893 (4th Cir.1994) (finding no difference between holding defendant innocent of acts required to enhance a sentence in death case and applying parallel rationale in non-capital cases); Smith v. Collins, 977 F.2d 951, 958-59 (5th Cir.1992) (assuming actual innocence exception extends" }, { "docid": "17642754", "title": "", "text": "dilatory fashion,” and, in the alternative, refused to consider these new contentions. The Court of Criminal Appeals denied relief and in a brief order adopted all of the conclusions of the state district court. Accordingly, this court is barred from reviewing the merits of Fearance’s forced medication claims: The adequate and independent state ground doctrine “barfs] federal habeas when a state court deelinefs] to address a prisoner’s federal claims because the prisoner had failed to meet a state procedural requirement.” Coleman v. Thompson, 501 U.S. 722, 729-730, 111 S.Ct. 2546, 2554, 115 L.Ed.2d 640 (1991). To be sure, this court has stated that in the past Texas courts have not regularly and strictly applied abuse-of-the-writ rules. Lowe v. Scott, 48 F.3d 873, 876 (5th Cir.1995). Nevertheless, in Ex Parte Barber, 879 S.W.2d 889, 892 n. 1 (Tex.Cr.App.1994), cert. denied, — U.S. -, 115 S.Ct. 739, 130 L.Ed.2d 641 (1995), the highest court of the State of Texas announced that it would as a “rule” dismiss as abuse of the writ “an applicant for a subsequent writ of habeas corpus raisfing] issues that existed at the time of his first writ.” Consequently, when the state district court dismissed an issue raised in Fearanee’s third petition that was not raised in his earlier petition it was no longer acting with any discretion. After Barber, dismissals of Texas habeas petitions as an abuse of the writ should create a procedural bar under the Coleman standard. Thus, Fearance must establish “cause” and “prejudice” from our failure to consider his claim. Coleman, 501 U.S. at 750-751, 111 S.Ct. at 2565 (cause and prejudice standard “uniformly” applicable to all independent and adequate state procedural defaults). Recognizing this predicament, Fearance notes that an exception to the abuse of the writ doctrine exists if the claim asserted is novel. Reed v. Ross, 468 U.S. 1, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984). To prevail, Fearance must — at least — plausibly argue that this type of constitutional attack was not reasonably available in 1992 when he filed his second state habeas petition. And, indeed, he does urge this" }, { "docid": "11090632", "title": "", "text": "Coleman v. Saffle, 869 F.2d 1377, 1380 (10th Cir.1989), there is a difference between “claims raised and reached on the merits in an earlier habeas petition, referred to as ‘successive petitions,’ and claims raised for the first time in a subsequent petition,” commonly referred to as abusive petitions. Both have application to Andrews petition. The Supreme Court has recently clarified the standard for determining when a petitioner abuses the writ by raising a new claim in a subsequent habeas petition. After exploring the history of the writ and the Court’s habeas corpus precedents, the Court in McCleskey v. Zant, - U.S. -, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991), held that the Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), cause-and-prejudice test applicable to cases of procedural default applies also \"to determine if there has been an abuse of the writ through inexcusable neglect.\" McCleskey v. Zant, 111 S.Ct. at 1470. Thus, claims raised for the first time in a second or subsequent habeas petition will be dismissed as abusive unless the petitioner can show cause for the failure to raise the claim in an earlier habeas petition, and prejudice therefrom. Additionally, as in cases of procedural default, even a petitioner who fails to establish cause and prejudice may nonetheless have his \"default\"i.e. his failure to raise a claim in a previous habeas petition-excused if he can show that the failure to hear his claim will result in a fundamental miscarriage of justice. id. As the Court has made clear in its procedural default cases, “cause ... requires a showing of some external impediment preventing counsel from constructing or raising the claim.” Murray v. Carrier, 477 U.S. 478, 492, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397 (1986); see also Coleman v. Thompson, - U.S. -, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); McCleskey v. Zant, 111 S.Ct. at 1472 (“For cause to exist, the external impediment, whether it be government interference or the reasonable unavailability of the factual basis for the claim, must have prevented petitioner from raising the claim.”); Amadeo v. Zant, 486 U.S." }, { "docid": "16764224", "title": "", "text": "now find the claims proeedurally barred,” the petitioner’s claim is proeedurally defaulted. Id. at 735 n. 1, 111 S.Ct. 2546. In light of the procedural bar to Smith returning to state court to exhaust his state remedies properly, the relevant question becomes whether Smith’s procedural default can be excused, not whether Smith’s failure to exhaust can be excused. Therefore, the exceptions to the exhaustion requirement set forth in § 2254(b) are irrelevant to Smith’s petition. Rather, we must determine whether we can excuse Smith’s procedural default under the applicable exception to that rule. B. Smith cannot overcome his procedural default. On federal habeas review under AEDPA, generally “[w]e may not reach the merits of proeedurally defaulted claims.” Williams v. Stewart, 441 F.3d 1030, 1061 (9th Cir.2006) (per curiam). However, a petitioner can overcome procedural default and obtain federal review of the merits of his claim in one of two ways. First, a petitioner overcomes procedural default if he presents sufficient evidence to “demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750, 111 S.Ct. 2546. To make this showing, a petitioner’s case must fall within the “narrow class of cases ... [involving] extraordinary instances when a constitutional violation probably has caused the conviction of one innocent of the crime.” McCleskey v. Zant, 499 U.S. 467, 494, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). Second, a petitioner may overcome procedural default by making “an adequate showing of cause and prejudice” for his failure to exhaust his state court remedies. Strickler v. Greene, 527 U.S. 263, 282, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). Because we conclude that Smith has demonstrated neither actual innocence nor cause and prejudice, we cannot consider the merits of Smith’s proeedurally defaulted federal ha-beas petition. 1. Actual Innocence We will excuse Smith’s procedural default if he can make the requisite showing of actual innocence of his conviction for felony murder. See Schlup, 513 U.S. at 315-16, 115 S.Ct. 851. In this context, Smith’s “claim of innocence ... is procedural, rather than substantive” because it allows him to" }, { "docid": "5359308", "title": "", "text": "L.Ed.2d 594 (1977), in order to overcome procedural bar). Satter would now be barred from raising the issue of insufficiency of evidence in a subsequent action for post-conviction relief in state court. Accordingly, he has defaulted that claim by his failure to pursue it in state post-conviction proceedings. In all eases in which a state prisoner has defaulted his federal claims in state court pursuant to an adequate and independent state procedural rule, federal habeas review is barred unless the prisoner can show cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman v. Thompson, - U.S. -, 111 S.Ct. 2546, 2551, 115 L.Ed.2d 640 (1991). Just as the state must afford the petitioner a full and fair hearing on his federal claim, so must the petitioner afford the state a full and fair opportunity to address and resolve the claim on the rner-its. Keeney v. Tamayo-Reyes,- U.S. -, -, 112 S.Ct. 1715, 1720, 118 L.Ed.2d 318 (1992). As noted, petitioner makes no claim of cause and prejudice, and this action does not involve the \"extraordinary instances when a constitutional violation probably has caused the conviction of one innocent of the crime\" so as to amount to a fundamental miscarriage of justice. McCleskey v. Zant, - U.S. , 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991). Satter's failure to advance his insufficiency of evidence claim in his post-conviction appeal functions as an adequate and independent procedural default and thus bars review by this court. Although our inquiry need continue no further, we note that Satter’s underlying claim is without merit. Even if Satter’s petition were not procedurally barred, he would not be entitled to the relief he seeks. It is undisputed that the Double Jeopardy Clause does not bar retrial after appellate reversal for trial error. United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). Once a judgment is reversed for insufficient evidence, however, the Double Jeopardy Clause bars retrial. Burks" }, { "docid": "10575657", "title": "", "text": "to counsel at the proceeding in which the default occurred. Coleman v. Thompson, 499 U.S. -, -, 111 S.Ct. 2546, 2566-68, 115 L.Ed.2d 640 (1991). Deutscher did not have a constitutional right to counsel in his first habeas appeal. His failure to raise valid constitutional claims in the original habeas appeal is attributable to the continued deficient representation of his counsel, but that does not establish cause for his default. Id. Although Deutscher has not shown cause for his default, we retain authority to issue the writ if the petition “implicat[es] a fundamental miscarriage of justice.” McCleskey, 499 U.S. at -, 111 S.Ct. at 1470. Where a constitutional violation has more probably than not resulted in a capital sentence for one who should not have been sentenced to death, issuance of the writ is necessary to ensure that a fundamental miscarriage of justice does not occur. See Dugger v. Adams, 489 U.S. 401, 412 n. 6, 109 S.Ct. 1211, 1217 n. 6, 103 L.Ed.2d 435 (1989); Smith v. Murray, 477 U.S. 527, 537-39, 106 S.Ct. 2661, 2667-69, 91 L.Ed.2d 434 (1986); Stokes v. Armontrout, 893 F.2d 152, 156 (8th Cir.1990). The Supreme Court has not defined the standard by which the “fundamental miscarriage of justice” exception applies to the sentencing phase of a capital case. Adams, 489 U.S. at 412 n. 6, 109 S.Ct. at 1217 n. 6. The Eighth and Eleventh Circuits have addressed the issue and reached different conclusions. In the Eighth Circuit, the exception applies to the penalty phase of a capital case “ ‘if the federal constitutional error alleged probably resulted in a verdict of death against one whom the jury would otherwise have sentenced to life imprisonment.’ ” Stokes, 893 F.2d 152, 156 (8th Cir.1990) (quoting Smith v. Armontrout, 888 F.2d 530, 545 (8th Cir.1989). The Eleventh Circuit has adopted a more restrictive approach: The sentenced defendant must demonstrate not merely that the error affected the sentencing outcome, but that the error resulted in a sentencing outcome for which the defendant is not eligible by virtue of his conduct.... That is, but for the alleged" }, { "docid": "23047585", "title": "", "text": "resolve the federal claim without reaching the merits of that claim.” Id. Sec ond, the state court’s decision must rest entirely on state law grounds and not be intertwined with an interpretation of federal law. See id. Third, the state procedural rule must be adequate, i.e., firmly established and regularly followed and not applied “in an arbitrary or unprecedented fashion.” Id. A federal court may still address the merits of a procedurally defaulted claim if the petitioner can show cause for the default and actual prejudice resulting from the alleged constitutional violation. See Wainwright v. Sykes, 438 U.S. 72, 84-85, 97 S.Ct. 2497, 2505, 53 L.Ed.2d 594 (1977). To show cause, the petitioner must demonstrate “some objective factor external to the defense” that impeded his effort to raise the claim properly in state court. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986). A showing that the legal basis for a claim was not “reasonably available to counsel” could constitute cause. Reed v. Ross, 468 U.S. 1, 16, 104 S.Ct. 2901, 2910, 82 L.Ed.2d 1 (1984). We have also determined that an ineffective-assistance-of-counsel claim, if both exhausted and not procedurally defaulted, may constitute cause. See Hill v. Jones, 81 F.3d 1015, 1031 (11th Cir.1996). As stated by the Supreme Court, “ineffective assistance adequate to establish cause for the procedural default of some other constitutional claim is itself an independent constitutional claim.” Edwards v. Carpenter, 529 U.S. 446, 451, 120 S.Ct. 1587, 1591, 146 L.Ed.2d 518 (2000). It is well established that if the petitioner fails to show cause, we need not proceed to the issue of prejudice. See McCleskey v. Zant, 499 U.S. 467, 502, 111 S.Ct. 1454, 1474, 113 L.Ed.2d 517 (1991). Once cause is established, however, the petitioner also must show actual prejudice from the alleged constitutional violation. See Sykes, 433 U.S. at 84, 97 S.Ct. at 2505. We have held that in order to show prejudice, a petitioner must demonstrate that “the errors at trial actually and substantially disadvantaged his defense so that he was denied fundamental fairness.” McCoy v. Newsome," }, { "docid": "11721695", "title": "", "text": "ineffective-assistance claims and concluded he did not show how the material he sought from discovery would prove his innocence. This appeal followed. Dyer’s motion to clarify an issue on appeal is granted. A successive petition must be dismissed as an abuse of the writ unless the petitioner can show external cause and prejudice, or a fundamental miscarriage of justice. McCleskey v. Zant, 499 U.S. 467, 493-94, 111 S.Ct. 1454, 1469-70, 113 L.Ed.2d 517 (1991). The latter exception applies only in “extraordinary instances when a constitutional violation probably has caused the conviction of one innocent of the crime.” Id. at 494, 111 S.Ct. at 1470; Cornman v. Armontrout, 959 F.2d 727, 730 (8th Cir.1992). Here, Dyer seeks to have his abuse of the writ excused because of ineffective assistance of posteonviction counsel and a change in the law. As to the first reason offered, post-conviction counsel’s ineffectiveness may not constitute cause. Coleman v. Thompson, 501 U.S. 722, -, 111 S.Ct. 2546, 2567, 115 L.Ed.2d 640 (1991). As to the second reason, to constitute cause, the change in the law must give rise to a claim so novel that its legal basis was not reasonably available to counsel. Reed v. Ross, 468 U.S. 1, 16, 104 S.Ct. 2901, 2910, 82 L.Ed.2d 1 (1984); United States v. Richards, 5 F.3d 1369, 1371 (10th Cir.1993). Moreover, although a colorable claim of innocence may be based on a change in the law rendering a prosecution illegal, see Davis v. United States, 417 U.S. 333, 343, 94 S.Ct. 2298, 2303, 41 L.Ed.2d 109 (1974), “[a] petitioner may not use the fundamental mis carriage of justice exception to challenge existing law on the theory that if the court agrees and changes the law, the petitioner would then be actually innocent.” Richards, 5 F.3d at 1371. Even if Price represented a change of law in another circuit, it may not be applied to excuse Dyer’s abuse of the writ here. We find no abuse of discretion in the district court’s denial of Dyer’s motions for discovery because Dyer did not show how the evidence he sought would establish" }, { "docid": "10575656", "title": "", "text": "In Deutscher v. Whitley, 884 F.2d 1152 (9th Cir.1989), we granted Deutscher’s petition for writ of habeas corpus because he was represented by constitutionally deficient counsel at sentencing and was prejudiced by his counsel’s failure to present mitigating evidence and to challenge an unconstitutional aggravating factor. By order of the United States Supreme Court, we review this ruling in light of McCleskey v. Zant, 499 U.S. -, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991), and Lewis v. Jeffers, 497 U.S. -, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990). The government sufficiently pleaded abuse of the writ. McCleskey, 499 U.S. at -, 111 S.Ct. at 1470. We determine whether Deutscher is excused from this default by the same standard used to determine whether to excuse state procedural defaults. Id. 111 S.Ct. at 1468. Deutscher is unable to establish cause for his failure to raise either the ineffective assistance of counsel or the invalid aggravating circumstance claim in his previous petition. Ineffective assistance of counsel establishes cause for default only if the Sixth Amendment guarantees a right to counsel at the proceeding in which the default occurred. Coleman v. Thompson, 499 U.S. -, -, 111 S.Ct. 2546, 2566-68, 115 L.Ed.2d 640 (1991). Deutscher did not have a constitutional right to counsel in his first habeas appeal. His failure to raise valid constitutional claims in the original habeas appeal is attributable to the continued deficient representation of his counsel, but that does not establish cause for his default. Id. Although Deutscher has not shown cause for his default, we retain authority to issue the writ if the petition “implicat[es] a fundamental miscarriage of justice.” McCleskey, 499 U.S. at -, 111 S.Ct. at 1470. Where a constitutional violation has more probably than not resulted in a capital sentence for one who should not have been sentenced to death, issuance of the writ is necessary to ensure that a fundamental miscarriage of justice does not occur. See Dugger v. Adams, 489 U.S. 401, 412 n. 6, 109 S.Ct. 1211, 1217 n. 6, 103 L.Ed.2d 435 (1989); Smith v. Murray, 477 U.S. 527, 537-39, 106 S.Ct." }, { "docid": "15062921", "title": "", "text": "12 lacks merit. We do not need to consider whether adequate and independent state procedural grounds exist to support the state court’s decisions because, even if they do, we may address the merits of Bonin’s claims if he can show cause for his procedural defaults and actual prejudice as a result of the alleged violations of federal law. See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991) (Coleman). The same standard applies to Bonin’s successive petitions if they were denied on federal grounds. Schlup v. Delo, — U.S. -, ---, 115 S.Ct. 851, 862-63, 130 L.Ed.2d 808 (1995) {Schlup). Either way, we need to consider cause and prejudice. To demonstrate cause, a petitioner must show that “ ‘some objective factor external to the defense impeded counsel’s efforts’ to raise the claim in state court.” McCleskey, 499 U.S. at 493, 111 S.Ct. at 1470, quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986) (Carrier). “[Constitutionally ineffective assistance of counsel ... is cause.” McCleskey, 499 U.S. at 494, 111 S.Ct. at 1470 (internal quotation omitted and ellipses in original). “Attorney error short of ineffective assistance of counsel, however, does not constitute cause and will not excuse a procedural default.” Id. Thus, counsel’s ineffectiveness will constitute cause only if it amounts to an “independent constitutional violation.” Coleman, 501 U.S. at 755, 111 S.Ct. at 2567. If Bonin can establish cause, he then must demonstrate “actual prejudice resulting from the errors of which he complains.” McCles-key, 499 U.S. at 494, 111 S.Ct. at 1470 (internal quotation omitted). Even if Bonin cannot show cause and prejudice, we may consider the merits of his claims if failure to do so would result in a miscarriage of justice. Schlup, - U.S. at-, 115 S.Ct. at 863-64. Such injustice occurs where a “constitutional violation has probably resulted in the conviction of one who is actually innocent.” Id. at-, 115 S.Ct. at 864, quoting Carrier, 477 U.S. at 496, 106 S.Ct. at 2649; see also Schlup, - U.S. at-, 115 S.Ct. at 867 (adopting Carrier" }, { "docid": "19914205", "title": "", "text": "waiver rule); see also Wooten v. Norris, 578 F.3d 767, 777 (8th Cir.2009) (“A claim is procedurally defaulted if a habeas petitioner failed to raise it in state proceedings.”). The petitioner does not attempt to show that he could revive the defaulted due process claim in the state courts, and we are satisfied that such an effort would be unsuccessful. See Powers v. State, 731 N.W.2d 499, 501 (Minn.2007) (“Matters ... known but not raised in an earlier petition for postconviction relief will generally not be considered in subsequent petitions for postconviction relief.” (citing Spears v. State, 725 N.W.2d 696, 700 (Minn.2006))). The U.S. Supreme Court has established that “federal habeas review of [defaulted] claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Here, the petitioner makes no attempt to show cause for failing to present his federal due process claim to the Minnesota Supreme Court, so he may obtain review of that claim “only if he falls within the ‘narrow class of cases ... implicating a fundamental miscarriage of justice.’ ” Schlup v. Delo, 513 U.S. 298, 314-15, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) (ellipsis in original) (quoting McCleskey v. Zant, 499 U.S. 467, 494, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991)); see also Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) (“[I]n an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.”). While the petitioner comes close to arguing that Quantez’s affidavit proves that he is innocent, he does not invoke the miscarriage-of-justice exception or otherwise acknowledge the burden he would face in making a gateway claim of actual innocence. See Schlup, 513 U.S. at" }, { "docid": "15062920", "title": "", "text": "constitutes cruel and unusual punishment. Bonin concedes that the factual basis for Claim 10 is found in the appellate record. Claim 11 arises from the amount of time Bonin has spent on death row. Claim 12 challenges the State’s authority under California law to calendar a hearing at which Bonin’s execution date was scheduled. Bonin also has challenged whether the district court’s 1992 judgments were final. State prison warden Calderon argues that all of Bonin’s claims are procedurally barred because the California Supreme Court denied Bonin’s petitions on adequate and independent state grounds. Alternatively, Calderon argues that Claims 1-11 constitute an abuse of the writ because they could have been brought in Bonin’s first set of petitions. See McCleskey v. Zant, 499 U.S. 467, 489, 111 S.Ct. 1454, 1467-68, 113 L.Ed.2d 517 (1991) (McCleskey) (abuse of the writ may occur where petitioner raises a claim in a subsequent petition that could have been raised in his first, regardless of whether the failure to raise it earlier stemmed from deliberate choice). Calderon also argues that Claim 12 lacks merit. We do not need to consider whether adequate and independent state procedural grounds exist to support the state court’s decisions because, even if they do, we may address the merits of Bonin’s claims if he can show cause for his procedural defaults and actual prejudice as a result of the alleged violations of federal law. See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991) (Coleman). The same standard applies to Bonin’s successive petitions if they were denied on federal grounds. Schlup v. Delo, — U.S. -, ---, 115 S.Ct. 851, 862-63, 130 L.Ed.2d 808 (1995) {Schlup). Either way, we need to consider cause and prejudice. To demonstrate cause, a petitioner must show that “ ‘some objective factor external to the defense impeded counsel’s efforts’ to raise the claim in state court.” McCleskey, 499 U.S. at 493, 111 S.Ct. at 1470, quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986) (Carrier). “[Constitutionally ineffective assistance of counsel ... is cause.”" }, { "docid": "11099537", "title": "", "text": "was the defendant’s failure to have raised the issue earlier — the defendant’s procedural default. See Bennett, 943 F.2d at 741 (“a defendant should not be allowed, years later, to take advantage of a change in statutory construction that he was free to argue on direct appeal”) (emphasis added). III. This then brings us to the question whether McKie “procedurally defaulted” his Michael claim by having failed to raise it at trial or on direct appeal. When prisoners commit “procedural defaults,” we may hear the merits of their claims on habeas only if they “can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2564, 115 L.Ed.2d 640 (1991). We have no doubt that McKie suffered prejudice. Under Michael, he would have been sentenced to prison for at most one year — six years and two months less than the imposed sentence. We are not persuaded, however, that he has shown “cause” for failing to raise this argument earlier. His reliance on Reed v. Ross, 468 U.S. 1, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984), is misplaced, as Reed requires the claim to be so “novel that its legal basis is not reasonably available to counsel.” Id. at 16, 104 S.Ct. at 2910. The argument that ultimately prevailed in Michael, based on an interpretation of a statute, simply does not meet this standard. McKie also argues that failure to consider the merits of his claim would result in a “miscarriage of justice.” Although the Supreme Court has not defined the phrase “miscarriage of justice” in other habeas contexts, see Reed v. Farley, — U.S. -, -, 114 S.Ct. 2291, 2297, 129 L.Ed.2d 277 (1994); United States v. Timmreck, 441 U.S. 780, 783, 99 S.Ct. 2085, 2087, 60 L.Ed.2d 634 (1979); Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962), it has articulated the standard a prisoner must meet" }, { "docid": "18686427", "title": "", "text": "L.Ed.2d 364 (1986); (b) new claims, not previously raised which constitute an abuse of the writ, McCleskey v. Zant, 499 U.S. [467], 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991); or (c) procedurally defaulted claims in which the petitioner failed to follow applicable state procedural rules in raising the claims. Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986).... [E]ven if a state prisoner cannot meet the cause and prejudice standard a federal court may hear the merits of the successive claims if the failure to hear the claims would constitute a “miscarriage of justice.” Clark argues the district court erred in rejecting his claims as successive and abusive. He contends the standards permitting denial without consideration of the merits were not met. Clark also argues the ends of justice exception requires a determination on the merits, and the “actual innocence” formulation announced in Sawyer should not be applied to his petition, or if it is that he is actually innocent of the death penalty. We conclude that the district court did not err by finding Clark’s claims successive and abusive and the fundamental miscarriage of justice exception inapplicable. For each claim, if the state pleads abuse of the writ, Clark must show cause for failing to raise his claim in his first federal habeas corpus petition and actual prejudice resulting from the error of which he complains. See McCleskey, 499 U.S. at -, 111 S.Ct. at 1470. Cause requires a showing of “ ‘some objective factor external to the defense impeded counsel’s efforts’ to raise the claim.” Id. (quoting Murray, 477 U.S. at 488, 106 S.Ct. at 2645). The Court in McCleskey emphasized: Abuse of the writ doctrine examines petitioner’s conduct: the question is whether petitioner possessed, or by reasonable means could have obtained, a sufficient basis to allege a claim in the first petition and pursue the matter through the habeas process.... If what petitioner knows or could discover upon reasonable investigation supports a claim for relief in a federal habeas petition, what he does not know is irrelevant. Omission of the claim will not" }, { "docid": "2709014", "title": "", "text": "is that if the state court finds a claim was procedurally defaulted at trial, we cannot reach the merits of that claim unless the petitioner meets the federal habeas standards to excuse the procedural waiver. The second is that the petitioner must have properly presented the claim to the state court under the exhaustion requirement of § 2254(b)(1). And the third is that if the habeas petition “presents a federal claim that was raised before the state court but was left unresolved,” this court reviews the claim de novo. Horton v. Allen, 370 F.3d 75, 80 (1st Cir.2004). After all, “AEDPA imposes a requirement of deference to state court decisions, but we can hardly defer to the state court on an issue that the state court did not address.” Fortini v. Murphy, 257 F.3d 39, 47 (1st Cir.2001). B. Procedural Default The respondents argue that this court should not review the merits of Lynch’s due process claim, because he procedurally defaulted his challenge to the jury instructions and has not shown circumstances to excuse the default. In contrast to the statutory exhaustion requirement, the procedural default doctrine stems from equitable principles informed by history, statutes, and judicial decisions. See McCleskey v. Zant, 499 U.S. 467, 489-90, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) (discussing similarities of doctrines of procedural default and “abuse of the writ”); Wainwright, 433 U.S. at 81, 97 S.Ct. 2497. The procedural default doctrine consists largely of judge-made rules. See Dretke v. Haley, 541 U.S. 386, 394, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004). Respondents’ procedural default argument invokes the rule that [i]n all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991);" }, { "docid": "19850952", "title": "", "text": "2639, 91 L.Ed.2d 397 (1986)); see also Hall v. Vasbinder, 563 F.3d 222, 236 (6th Cir.2009) (“A defendant can overcome a procedural default by showing (a) cause for the default and (b) actual prejudice from it.”). Consequently, we may only affirm the district court’s judgment if we are satisfied that Cvijetinovic has demonstrated both cause and prejudice. Ultimately, we are not so persuaded. Our inquiry begins and ends with the issue of cause. “[T]he existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Murray, 477 U.S. at 488, 106 S.Ct. 2639; see also Shorter v. Ohio Dep’t of Rehab. & Corr., 180 F.3d 723, 726 (6th Cir.1999) (noting that petitioner had failed to demonstrate cause because his “[cjounsel’s efforts to comply with the State’s procedural rule were not impeded by some objective factor external to the defense”). “Such factors may include ‘interference by officials,’ attorney error rising to the level of ineffective assistance of counsel, and ‘a showing that the factual or legal basis for a claim was not reasonably available.’ ” Hargrave-Thomas v. Yukins, 374 F.3d 383, 388 (6th Cir.2004) (quoting McCleskey v. Zant, 499 U.S. 467, 493-94, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991)). Invoking the third factor, Cvijetinovic contends that cause exists because, at the time of his default, his Blakely claim was “so novel that its legal basis [was] not reasonably available.... ” Reed v. Ross, 468 U.S. 1, 16, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984). “A claim may be held sufficiently novel when, at the time of its default, the legal tools, i.e., case law, necessary to conceive and argue the claim were not yet in existence and available to counsel.” Poyner v. Murray, 964 F.2d 1404, 1424 (4th Cir.1992) (citing Engle v. Isaac, 456 U.S. 107, 130-33, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982)); see also McBee v. Grant, 763 F.2d 811, 816 (6th Cir.1985) (noting that a finding of cause on the basis of novelty is inappropriate" }, { "docid": "22051302", "title": "", "text": "appeal is procedurally defaulted unless the petitioner can establish cause and prejudice for his failure to assert his claims on direct appeal. See Frady, 456 U.S. at 167-68, 102 S.Ct. 1584. Specifically, McCoy must show both “(1) ‘cause’ excusing his double procedural default, and (2) ‘actual prejudice’ resulting from -the errors of which he complains.” Id. at 168,102 S.Ct. 1584. McCoy contends that “cause” exists because the basis for his Apprendi claim was not known until after his conviction became final, since drug quantity was considered a mere sentencing factor until Ap-prendi. It is true that “a claim that ‘is so novel that its legal basis is not reasonably available to counsel’ may constitute cause for a procedural default.” Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (quoting Reed v. Ross, 468 U.S. 1, 16, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984)). However, “the question is not whether subsequent legal developments have made counsel’s task easier, but whether at the time of the default the claim was ‘available’ at all.” Smith v. Murray, 477 U.S. 527, 537, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986); see also Waldrop v. Jones, 11 F.3d 1308, 1315 (11th Cir.1996) (stating that “a rule is ‘novel,’ and therefore cause for procedural default, only if the petitioner did not have the legal tools to construct the claim before the rule was issued”). Apprendi himself raised the issue some time before his case was argued to the New Jersey appellate court in February of 1997, see State v. Apprendi, 304 N.J.Super. 147, 698 A.2d 1265 (1997), so the building blocks for arguing it were obviously in existence as early as then. And as the other circuits to address this issue have noted, the foundation for Ap-prendi was laid years before the Supreme Court announced Apprendi. See Sanders, 247 F.3d at 146 (stating that “[t]he germ of Sanders’ Apprendi claim had sprouted at the time of his conviction [in 1997] and there is no reason why he could not have raised it then”); Moss, 252 F.3d at 1001 (stating that “the" } ]

[ { "docid": "17223135", "title": "", "text": "creditors an adequate “equity cushion”. The bankruptcy court also erred in its implied finding .that the Upland residence was unnecessary to effect a reorganization. Whatever remains after payment to any legitimate secured creditors will be a necessary part of the estate in order to provide some compensation to the remaining creditors in a pro rata basis. Because we have concluded that the Appellate Panel erroneously affirmed the order of the bankruptcy court granting relief from the automatic stay, although no showing was made that there was inadequate protection of the secured creditors’ interest, we do not reach the serious question which is presented where a bankruptcy court purports to annul an automatic stay in order to attempt retroactively to validate a void state court judgment. See Kalb v. Feuerstein, 308 U.S. 433, 443, 60 S.Ct. 343, 348, 84 L.Ed. 370 (1940) (a post bankruptcy petition state court judgment affecting estate property is void and of no effect). Since, in the instant matter, the Appellate Panel’s decision construing the validity of an attempt to annul retroactively an automatic stay in order to avoid the rule of Kalb v. Feuerstein was based on a faulty factual and legal premise, the decision appealed from should not be given any precedential effect. REVERSED. . The summary judgment was affirmed by the California Court of Appeal on May 24, 1983. In so ruling, the court relied upon the June 1, 1981 action of the Bankruptcy Court retroactively annulling the automatic stay. . \"Equity cushion” has been defined as the value in the property, above the amount owed to the creditor with a secured claim, that will shield that interest from loss due to any decrease in the value of the property during time the automatic stay remains in effect. In re Roane, 8 B.R. 997, 1000 (B.Ct.E.D.Pa.1981), aff'd, 14 B.R. 542 (D.C.E.D.Pa.1981). \"Equity,” as opposed to \"equity cushion,” is the value, above all secured claims against the property, that can be realized from the sale of the property for the benefit of the unsecured creditors. La Jolla Mortgage Fund, 18 B.R. at 287. . Priorities" } ]

[ { "docid": "22430322", "title": "", "text": "“equity-cushion” approach. See, i.e., In re Shockley Forest Industries, Inc., 5 B.R. 160, 163, 6 B.C.D. 642, 644 (Bkrtcy.N.Ga.1980); In re 5 Leaf Clover Corp., 6 B.R. 463, 466 (S.W.Va.1980); In re Lee, 11 B.R. 84, 85 (Bkrtcy.E.Pa.1981); In re Penn York, Mfg., Inc., 14 B.R. 51, 53 (Bkrtcy.M.Pa.1981); Matter of Stanley Hotel, Inc., supra, 15 B.R. at 664, 8 B.C.D. at 562. It has been defined as value in the property above the amount owed to the creditor with a secured claim, that will shield that interest from loss due to any decrease in the value of the property during the time the automatic stay remains in effect. In re Roane, 8 B.R. 997, 1000 (Bkrtcy.E.Pa.1981), aff’d, 14 B.R. 542 (Dist.Ct.E.Pa.1981). While this approach is valid, the instant case demonstrates that the phrase “equity cushion” is a misnomer. By including the word “equity,” we have created some confusion. “Equity” is the value, above all secured claims against the property, that can be realized from the sale of the property for the benefit of the unsecured creditors. See Comment, supra, 17 San Diego L.Rev. at 1123. Under the requirements of Section 362(d)(2)(A), equity in the debtor’s property, or lack thereof, can be relevant and under Section 362(g)(1) the creditor, as the party requesting relief, has the burden of proof on the issue of the existence of equity. However, in considering whether the debtor has provided adequate protection for a creditor’s secured claim, we are not concerned with the availability of equity for unsecured creditors. Instead, we are concerned with whether there is sufficient value in the collateral to protect the secured claim from diminution. A more apt and descriptive phrase would be “value cushion.” Of course, since this is a question of providing adequate protection, the debtor has the burden of proof. See In re Presock, 9 B.R. 676, 678 (Bkrtcy.E.Pa.1981). See also In re Roane, supra, 8 B.R. at 1000 (by implication); In re Daws, 13 B.R. 101, 104 (Bkrtcy.Haw.1981); In re High Sky, Inc., supra, 15 B.R. at 336 (by implication). Here, the party seeking relief from the" }, { "docid": "1127916", "title": "", "text": "to obtain relief from the stay pursuant to § 362(d)(2). But no evidence was offered by the mortgagee on that issue. In fact, the only evidence offered on that point was the testimony of the debtor/wife that the debtors had equity in the property because, in her opinion, the value of the property was in excess of the total mortgage debt. Hence, we conclude that the mortgagee has failed to sustain its burden of proving that the debtors lack equity in the property and that, accordingly, the mortgagee is not entitled to relief from the stay under § 362(d)(2). With respect to relief from the stay under § 362(d)(1), the mortgagee argues that it is entitled to such relief because its interest in the debtors’ property is not adequately protected. Under § 362(g), the debtors have the burden of proving that the mortgagee’s interest is adequately protected. Adequate protection may be provided by an equity cushion — that is, by proof that there is value in the property above the amount owed to the mortgagee that will shield the mortgagee’s interest from loss due to any decrease in the value of the property during the time the automatic stay remains in effect. See, e. g., In re Orlando Coals, Inc., 6 B.R. 721 (Bkrtcy., S.D.W.Va.1980); In re El Patio, Ltd., 6 B.R. 518 (Bkrtcy., C.D.Cal.1980); In re Tucker, 5 B.R. 180 (Bkrtcy., S.D.N.Y.1980); In re Rogers Development Corp., 2 B.R. 679 (Bkrtcy., E.D.Va.1980); In re Pitts, 2 B.R. 476 (Bkrtcy., C.D.Cal.1980). See generally, 2 Collier on Bankruptcy ¶ 361.01[2] (15th ed. 1980). In the instant case the debtors have attempted to prove that there is an equity cushion of $7,500 in their property (the $23,000 value which the debtors place on their property, minus the balance of $15,500 still due on the mortgage debt). But we believe that, the testimony of the debtors alone, as to what they believe the value of their property is, may not be enough to establish that there is an equity cushion sufficient to adequately protect the mortgagee. However, in the case at bench, we" }, { "docid": "18801105", "title": "", "text": "Jolla Mortgage Fund v. Rancho El Cajon Associates, supra. The issue arises, in determining the question of the debtor’s equity in the property under § 362(d)(2)(A), whether all the encumbrances on the subject property are to be considered or whether the interest of non-joining junior lien creditors should be ignored. Compare Harleysville National Bank and Trust Co. v. Kaufman (In re Kaufman), 24 B.R. 498 (Bkrtcy.E.D.Pa.1982); La Jolla Mortgage Fund v. Rancho El Cajon Associates, supra; and North East Federal Savings and Loan Association v. Mikole Developers (In re Mikole Developers, Inc.), 14 B.R. 524 (Bkrtcy.E.D.Pa.1981) (all encumbrances considered) with Central Florida Production Credit Association v. Spring Garden Foiliage, Inc. (In re Spring Garden Foliage, Inc.) 15 B.R. 140 (Bkrtcy.M.D.Fla.1981) (junior encumbrances unimportant if debtor has equity cushion over senior encumbrances). This Court agrees with the former authorities and holds that all encumbrances on the subject property are to be considered in determining if the debtor has equity in the property under § 362(d)(2)(A), whether or not all the secured claimholders have requested relief from the stay. The opposite view, that only the senior encumbrances should be considered, seems to confuse the question of an “equity cushion” or value over and above the senior encumbrances’s claim as “adequate protection” under § 362(d)(1) with whether there is any “equity” in the property or value above all secured claims against the property that can be realized from the sale of the property for unsecured creditors under § 362(d)(2)(A). As Judge Meyers ably explained in La Jolla Mortgage Fund v. Rancho El Cajon Associates, however, there is a significant difference: Shortly after the Code became effective, this Court in In re San Clemente Estates, 5 B.R. 605, 6 B.C.D. 838 (Bkrtcy.S.D.CA.1980), recognized that in appropriate cases the value of the collateral itself could provide adequate protection. Both this Court, and others, referred to this as the ‘equity cushion’ approach.... It has been defined as value in the property above the amount owed to the creditor with a secured claim, that will shield that interest from loss due to any decrease in the value" }, { "docid": "20233185", "title": "", "text": "to the extent that the value of such creditor’s interest ... is less than the amount of such allowed claim.” As recognized by the court in In re Lane, 108 B.R. 6 (Bankr.D.Mass.1989), “[w]hen § 506(a) is considered in the context of an oversecured creditor, it is apparent that the value of the ‘interest in ... property’ which it speaks of is equal to the amount of the debt and not the value of the collateral. Otherwise, the amount of the claim would be the value of the collateral. The ‘interest in property’ language appearing in § 362(d)(1) must be taken to have the same meaning in order to avoid inconsistency.” Id. at 8. If collateral securing a claim has value greater than the interest of the secured claim holder, the excess value, referred to as an equity cushion, constitutes adequate protection for the secured party’s interest. Id. See also Bay-bank-Middlesex v. Ralar Distribs., Inc., 69 F.3d 1200, 1203 (1st Cir.1995) (citing First Agric. Bank v. Jug End in the Berkshires, Inc. (In re Jug End in the Berkshires, Inc.), 46 B.R. 892, 899 (Bankr.D.Mass.1985) (“The classic protection for a secured debt justifying continuation of the stay is the existence of an ‘equity cushion.’ ”)). An oversecured creditor is not entitled to be compensated for an erosion in an equity cushion. Moreover, a secured creditor is not entitled to additional adequate protection for lost opportunities in the use of funds. Timbers, 484 U.S. at 374-75, 108 S.Ct. 626. Prudential has not demonstrated “cause” for relief from stay due to lack of adequate protection under § 362(d)(1). Prudential did not introduce evidence of lack of adequate protection at trial and did not address § 362(d)(1) in its brief. Given the total value of the collateral package, an equity cushion exists with respect to Prudential’s claim in an amount in excess of $19 million. Moreover, the Debtor is reducing the amount of debt owed to Prudential from the proceeds of the sales of the condominiums. Furthermore, in view of the payments made to Prudential during the pendency of this case, the value" }, { "docid": "1936895", "title": "", "text": "of all the facts surrounding the case and the equitable considerations to which these facts give rise. In re Southerton Corp., 46 B.R. 391, 398 (M.D.Pa.1982). Many courts have focused on the presence or absence of an equity cushion in determining whether a secured creditor has adequate protection of his collateral. See In re Pitts, 2 B.R. 476 (C.D. Cal.1979). An equity cushion has been defined as “the surplus of value remaining after the amount of indebtedness is subtracted from the fair market value of the collateral”. Commonwealth of Pennsylvania State Employees Retirement Fund v. Roane, 14 B.R. 542, 545 (E.D.Pa.1981). If properly applied, the concept of an equity cushion supplies just one of several factors to be used in determining whether a creditors interest is adequately protected. See In re Southerton Corp., supra, at 398. The adequate protection determination involves a conflict between necessarily competing interests. They are, the secured creditors property interest and the values promoted by the automatic stay, i.e., the public policy of preventing the piecemeal dismantling of a business through unilateral creditor action. In re Philadelphia Consumer Discount Co., supra, at 949. The court has considered the equity cushion together with the projected stability of the value of the collateral. In this case, the value of the collateral will not only be stabilized but it should also increase. As indicated supra, the debtors have equity in the collateral of approximately $480,000 and this interest is increasing as each payment on the first mortgage on the residential property reduces the principal amount of that debt. Accordingly, the court finds that UJB’s secured claim is adequately protected. II. THE ROACH DECISION UJB places substantial reliance on a recent decision in this circuit, In re Roach, 824 F.2d 1370 (3d Cir.1987). Relying on Roach, UJB contends that it is entitled to payment in full, and that such right may not be extinguished or modified by a Chapter 11 reorganization plan. Furthermore, UJB contends that the Roach decision mandates that UJB be granted relief from the automatic stay. The court disagrees with these contentions. In In re Roach, supra," }, { "docid": "5676951", "title": "", "text": "75 F.2d 941 (2d Cir. 1935), where it is said at page 942: “It is plain that ‘adequate protection’ must be completely compensatory; ... a creditor . . . wishes to get his money or at least the property. We see no reason to suppose that the statute was intended to deprive him of that in the interest of junior holders unless by a substitute of the most indubitable equivalence.” In re Lake Tahoe Land Co., Inc., supra, at 36. Although the term is not precisely defined, § 361 of the Code sets forth three (3) nonexclusive examples of what may constitute “adequate protection” of an interest in property: (1) periodic cash payments to the extent that the stay results in a decrease in the value of such interest, (2) an additional or replacement lien to the same extent, or, (3) other relief as will result in the realization of the indubitable equivalent of such interest. None of these has been offered. Instead defendant contends that there is a substantial equity cushion which provides adequate protection for plaintiff’s interest in the property. An equity “cushion” in and of itself may constitute adequate protection within the meaning of Section 362(d)(1). 2 Collier on Bankruptcy, 361.02(3) at p. 361-9, (15th Ed. 1979). In re Pitts, 5 B.C.D. 1129, 2 B.R. 476 (Bkrtcy., 1979). In seeking relief from automatic stay, the creditor has the burden of proof on the issue of debtor’s equity in the collateral, but the debtor has the burden on all other issues including adequate protection of the creditor. 11 U.S.C. § 362(g); In re San Clemente Estates, 5 B.R. 605 (Bkrtcy., Cal.1980). In the instant case the total claim of the Bank as of April 27, 1981, amounted to $606,246.48. (See plaintiff’s Exhibit P-1 and N.T. 8). Additionally, the debtor listed liens of other secured creditors in the amount of $24,156.46 in its schedules and statement of affairs dated January 16,1981. The Bank’s expert witness determined the fair market value of the property to be $350,000.00 as of January 31, 1981, based upon a free and clear title and" }, { "docid": "12010785", "title": "", "text": "phrase ‘adequate protection’ is defined in § 361 in sufficiently broad terms that courts and commentators have uniformly concluded that such protection may be provided by a creditor’s equity cushion....” Nations-Bank of Virginia, N.A. v. DCI Publishing of Alexandria, Inc., 160 B.R. 538, 540 (E.D.Va.1993). A creditor may also be adequately protected by periodic payments sufficient to compensate the creditor for the diminution in value of the creditor’s collateral. See In re Dunes Hotel Associates, 188 B.R. 162, 173 (Bankr.D.S.C.1995) (discussing adequate protection); In re James River Associates, 148 B.R. 790, 797 (E.D.Va.1992) (finding cause to lift the automatic stay when there is a lack of equity cushion and a failure to make monthly payments due to creditor). Debtor has failed to meet its burden of proof that there is a lack of cause to lift the automatic stay. First Citizens is not adequately protected by the value of the Property. Debtor failed to offer any persuasive evidence that First Citizens is now adequately protected by the value of the Property a mere three months after the stay was lifted in the Worthy Case for lack of adequate protection. The credible evidence from First Citizens’ appraiser indicates that First Citizens is in a worse position in this case since the value of the Property has declined and the debt owed to it has increased. Based upon the credible and persuasive testimony from First Citizens’ appraiser, the Court finds that the Property is worth $2 million, which is less than the amount of the agreed upon debt. Therefore, the Court finds that the Property’s value does not adequately protect First Citizens. See In re Kinard, C/A No. 01-03621-W, slip op., 2001 WL 1806039 (Bankr.D.S.C. Nov.21, 2001) (granting relief from stay for lack of adequate protection even though the debtor believed the property would appreciate during the case). First Citizens is also not adequately protected by the assurance of payment. Considering the accrual of real estate taxes, insurance costs, the interest on such a significant indebtedness, and the depreciation of the Property, the Court finds that adequate protection payments would be in" }, { "docid": "18801106", "title": "", "text": "the stay. The opposite view, that only the senior encumbrances should be considered, seems to confuse the question of an “equity cushion” or value over and above the senior encumbrances’s claim as “adequate protection” under § 362(d)(1) with whether there is any “equity” in the property or value above all secured claims against the property that can be realized from the sale of the property for unsecured creditors under § 362(d)(2)(A). As Judge Meyers ably explained in La Jolla Mortgage Fund v. Rancho El Cajon Associates, however, there is a significant difference: Shortly after the Code became effective, this Court in In re San Clemente Estates, 5 B.R. 605, 6 B.C.D. 838 (Bkrtcy.S.D.CA.1980), recognized that in appropriate cases the value of the collateral itself could provide adequate protection. Both this Court, and others, referred to this as the ‘equity cushion’ approach.... It has been defined as value in the property above the amount owed to the creditor with a secured claim, that will shield that interest from loss due to any decrease in the value of the property during the time the automatic stay remains in effect. In re Roane, 8 B.R. 997, 1000 (Bkrtcy.EDPA.1981), aff’d, 14 B.R. 542 (D.Ct.E.D.PA.1981). While this approach is valid, the instant case demonstrates that the phrase ‘equity cushion’ is a misnomer. By including the word ‘equity,’ we have created some confusion. ‘Equity’ is the value, above all secured claims against the property, that can be realized from the sale of the property for the benefit of the unsecured creditors. See Comment, supra, 17 San Diego L.Rev. at 1123. Under the requirements of Section 362(d)(2)(A), equity in the debtor’s property, or lack thereof, can be relevant and under Section 362(g)(1) the creditor, as the party requesting relief, has the burden of proof on the issue of the existence of equity. However, in considering whether the debtor has provided adequate protection for a creditor’s secured claim, we are not concerned with the availability of equity for unsecured creditors. Instead, we are concerned with whether there is sufficient value in the collateral to protect the secured claim" }, { "docid": "18801107", "title": "", "text": "of the property during the time the automatic stay remains in effect. In re Roane, 8 B.R. 997, 1000 (Bkrtcy.EDPA.1981), aff’d, 14 B.R. 542 (D.Ct.E.D.PA.1981). While this approach is valid, the instant case demonstrates that the phrase ‘equity cushion’ is a misnomer. By including the word ‘equity,’ we have created some confusion. ‘Equity’ is the value, above all secured claims against the property, that can be realized from the sale of the property for the benefit of the unsecured creditors. See Comment, supra, 17 San Diego L.Rev. at 1123. Under the requirements of Section 362(d)(2)(A), equity in the debtor’s property, or lack thereof, can be relevant and under Section 362(g)(1) the creditor, as the party requesting relief, has the burden of proof on the issue of the existence of equity. However, in considering whether the debtor has provided adequate protection for a creditor’s secured claim, we are not concerned with the availability of equity for unsecured creditors. Instead, we are concerned with whether there is sufficient value in the collateral to protect the secured claim from diminution. A more apt and descriptive phrase would be ‘value cushion.’ (footnotes omitted) 18 B.R. at 287-288, 8 B.C.D. at 1037. Whatever the ultimate utility of the “equity cushion” approach for issues under § 362(d)(1), it should be rejected when considering the question of “equity”, as defined above, for issues under § 362(d)(2)(A). If there is equity in the property, even if it is unnecessary to an effective reorganization, the property has utility for the Chapter 11 debtor if it can be sold and the net proceeds over and above all encumbrances used for operating capital or to fund a plan of reorganization. If there is no equity and the property is not necessary to an effective reorganization, the property has no utility for the Chapter 11 debtor and is a hindrance in his efforts to emerge from the reorganization as an intact economic entity. Only under the former circumstances then, does continuance of the automatic stay seem to strike the appropriate balance between the creditor’s rights to recourse to its collateral, temporarily stayed" }, { "docid": "22430321", "title": "", "text": "in the value of such entity’s interest in such property; (2) providing to such entity an additional or replacement lien to the extent that such stay, use, sale, lease, or grant results in a decrease in the value of such entity’s interest in such property; or (3) granting such other relief, other than entitling such entity to compensation allowable under section 503(b)(1) of this title as an administrative expense, as will result in the realization by such entity of the indubitable equivalent of such entity’s interest in such property. 11 U.S.C. § 361. See Matter of Stanley Hotel, Inc., 15 B.R. 660, 663, 8 B.C.D. 559, 561 (Dist.Ct.Colo.1981). Here, the debtor has simply proposed that the collateral itself has sufficient value to constitute adequate protection of the Fund’s interest. Shortly after the Code became effective, this Court in In re San Clemente Estates, 5 B.R. 605, 6 B.C.D. 838 (Bkrtcy.S.Cal.1980), recognized that in appropriate cases the value of the collateral itself could provide adequate protection. Both this Court, and others, referred to this as the “equity-cushion” approach. See, i.e., In re Shockley Forest Industries, Inc., 5 B.R. 160, 163, 6 B.C.D. 642, 644 (Bkrtcy.N.Ga.1980); In re 5 Leaf Clover Corp., 6 B.R. 463, 466 (S.W.Va.1980); In re Lee, 11 B.R. 84, 85 (Bkrtcy.E.Pa.1981); In re Penn York, Mfg., Inc., 14 B.R. 51, 53 (Bkrtcy.M.Pa.1981); Matter of Stanley Hotel, Inc., supra, 15 B.R. at 664, 8 B.C.D. at 562. It has been defined as value in the property above the amount owed to the creditor with a secured claim, that will shield that interest from loss due to any decrease in the value of the property during the time the automatic stay remains in effect. In re Roane, 8 B.R. 997, 1000 (Bkrtcy.E.Pa.1981), aff’d, 14 B.R. 542 (Dist.Ct.E.Pa.1981). While this approach is valid, the instant case demonstrates that the phrase “equity cushion” is a misnomer. By including the word “equity,” we have created some confusion. “Equity” is the value, above all secured claims against the property, that can be realized from the sale of the property for the benefit of the" }, { "docid": "1947358", "title": "", "text": "in spite of that debtor’s failure to make any post-petition mortgage payments, because the current equity cushion adequately protected the creditor’s interest. Heath defined “equity cushion” as “the value in the property, above the amount owed to the creditor with a secured claim, that will shield that interest from loss due to any decrease in the value of the property during the time the automatic stay remains in effect.” 79 B.R. at 618 (quoting In re Roane, 8 B.R. 997, 1000 (Bankr.E.D.Pa.1981)); see also In re Zinke, 1989 WL 113154, *3 (E.D.N.Y. June 9, 1989). Heath applied the following formula to express the equity cushion as a percentage: (1) appraised fair market value, (2) minus the secured creditor’s lien, (3) divided by total encumbrances. Id. n. 3. In Heath, the equity cushion was 39%; in this case, the Court calculates the equity cushion at 75%. Taylor and Heath do not support Chase Home Finance’s position on the Lift-Stay Motion. The only factor that Chase Home Finance appears to have considered before filing the Lift-Stay motion was whether or not any default appeared according to its internal records. This was confirmed repeatedly at the Evidentiary Hearing. THE COURT: So the decision to file for relief from stay is basically whether or not arrears show up on a report, plain and simple? MS. SALINAS: Yes, ma’am. Tr. at 53. Chase Home Finance argues that it was following “its own established policies — to move for relief from the stay when the debtors fall two months behind in payments that are equally applicable to other debtors.” Post-Hearing Submission (ECF Docket No. 41), p. 11. Chase Home Finance’s established policies ignore the definition of adequate protection in Section 361 and reads “cause” in Section 362(d)(1) to mean “two months behind in payments,” with no regard to any other factors that may be present in a particular case. This assertion finds no support in the case law or the plain meaning of Section 361 and 362; see, e.g., In re Heath, supra, 79 B.R. at 619 (rejecting creditor’s “bold assertion” that even where creditor is" }, { "docid": "19249720", "title": "", "text": "the form of cash payment, and has not provided additional liens as protection. No other evidence was presented by the debtor to show that the indubitable equivalent of Citicorp’s interest is being adequately protected by other means, other than expert testimony from a debtor’s witness which offered the appraised value of the vessels to be in excess of the debt owed to the creditor here. Citicorp offered substantial expert appraisal testimony to contradict that of the debtor. The Court concludes that, on the basis of the weight and credibility of the evidence, as shown below, the expert appraisal testimony of Citicorp witness proved that the value of the secured asset, on today’s market was substantially less than the debt owed. Where it is shown that a creditor is well secured, the “equity cushion” may constitute adequate protection in satisfaction of statutory requirements, and this cushion is considered the classic form of protection for a secured debt. In re San Clemente Estates, 5 B.R. 605 (Bankr.S.D.Cal.1980); In re Mellor, 734 F.2d 1396 (9th Cir.1984); In re Moor, 51 B.R. 640 (Bankr.N.D.Miss.1985). The ratio of the debt owed to the value assigned to the collateral must be reviewed to determine whether adequate protection exists. “Equity cushion\" has been defined as the value in the property, above the amount owed to the creditor with a secured claim, that will shield that interest from loss due to any decrease in the value of the property during time the automatic stay remains in effect. In re Roane, 8 B.R. 997, 1000 (B.Ct.E.D.Pa.1981), aff'd, 14 B.R. 542 (E.D.Pa.1981). “Equity,” as opposed to “equity cushion,” is the value, above all secured claims against the property, that can be realized from the sale of the property for the benefit of the unsecured creditors. La Jolla Mortgage Fund [v. Rancho El Cajon Assoc.], 18 B.R. [283] at 287 [S.D.Cal.1982]. In re Mellor, at 1400 n. 2. This issue is the primary focus of this lawsuit, in order to reach the above conclusions. An analysis of the testimony presented at the valuation stage of the hearing is therefore necessary to" }, { "docid": "19249721", "title": "", "text": "Moor, 51 B.R. 640 (Bankr.N.D.Miss.1985). The ratio of the debt owed to the value assigned to the collateral must be reviewed to determine whether adequate protection exists. “Equity cushion\" has been defined as the value in the property, above the amount owed to the creditor with a secured claim, that will shield that interest from loss due to any decrease in the value of the property during time the automatic stay remains in effect. In re Roane, 8 B.R. 997, 1000 (B.Ct.E.D.Pa.1981), aff'd, 14 B.R. 542 (E.D.Pa.1981). “Equity,” as opposed to “equity cushion,” is the value, above all secured claims against the property, that can be realized from the sale of the property for the benefit of the unsecured creditors. La Jolla Mortgage Fund [v. Rancho El Cajon Assoc.], 18 B.R. [283] at 287 [S.D.Cal.1982]. In re Mellor, at 1400 n. 2. This issue is the primary focus of this lawsuit, in order to reach the above conclusions. An analysis of the testimony presented at the valuation stage of the hearing is therefore necessary to determine whether value in the property exists above the amount owed to sufficiently provide adequate protection to the creditor, here. Norman J. Dufour, Jr. testified on behalf of the debtor and estimated the fair market value of the Bold Conquest to be $4,190,-000.00. Dufour did not use a comparable sales approach in his estimate because, in his opinion, there were none. He did not consider forced sales of other vessels to be comparable, and, there being a lack of sales activity in the market for comparative purposes due to the depressed state of offshore drilling activity. In this context, Dufour testified that the vessel could probably be sold for approximately $1.0 million within 30 days, $1.5 million within 180 days and $2.0 million within a year. By stipulation, the condition and valuation survey report of Clarence Hamilton was submitted on the debtor’s behalf. Hamilton estimated the fair market value of the Bold Conquest to be $3.2 million “as built and equipped”, in an “arms-length” normal market situation. Citicorp expert marine surveyor, Sheldon Cass, used comparable" }, { "docid": "18737010", "title": "", "text": "are drafted to address the collateral’s depreciation or decline in value during the pendency of the stay. These provisions are coupled with the grant of other relief as will result in realizing the indubitable equivalent of the creditor’s interest on which the creditors focus here. See 11 U.S. C.A. § 361(3). This statutory scheme indicates that adequate protection is intended to encompass a broad range of creditor interests and does not mandate an interpretation of the creditors’ interest as the whole of the economic bargain. Briggs, 780 F.2d at 1345. The existence of equity above the secured party’s interest which provides an “equity cushion” to the secured party may, in a given case, provide adequate protection. See, e.g., In re Mellor, 734 F.2d 1396, 1400 (9th Cir.1984); In re Palmer River Realty, Inc., 26 B.R. 138, 141 (Bkrtcy.D.R.I.1983). Equity cushion has been defined as the value of the property above the amount owed to the creditor with a secured claim, that will shield the interest from loss due to any decrease in the value of the property during the time the automatic stay remains in effect. See, e.g., In re Mellor, 734 F.2d 1396, 1400 n. 2 (9th Cir.1984); In re Roane, 8 B.R. 997, 1000 (Bkrtcy.E.D.Pa.), aff'd, 14 B.R. 542 (E.D.Pa.1981). The court notes that some courts have rejected the equity cushion analysis as alien to the concept of adequate protection. See Matter of Bouquet Investment, 32 B.R. 988, 9 C.B.C.2d 715 (Bkrtcy.C.D.Cal.1983); In re Alyucan Interstate Corp., 12 B.R. 803 (Bkrtcy.D.Utah 1981). Those courts, however, have employed the notion of impairment of lien: The cushion analysis, by focusing on the ratio of debt to collateral, obscures the purpose of adequate protection, viz., to guard against impairment of a lien. This blurring of objectives may produce improper results. If Bankers Life had been undersecured at the petition, for example, the absence of cushion would have dictated relief from the stay, even though the stay did not impair its lien and notwithstanding the usual appreciation in the value of realty. In re Alyucan Interstate Corp., 12 B.R. at 810. Under" }, { "docid": "10178998", "title": "", "text": "protected — the existence of an “equity cushion.” Nei ther periodic cash payments nor replacement liens were offered, see 11 U.S.C. 361(1), (2), although movants’ counsel stated that periodic cash payments equal to the per diem rate for the three mortgages, plus payment of the 1987 real estate taxes would protect the movants’ interests. An equity cushion has been defined as “the surplus of value remaining after the amount of indebtedness is subtracted from the fair market value of the collateral.” Commonwealth of Pennsylvania State Employees Retirement Fund v. Roane, 14 B.R. 542, 545 (Bankr.E.D.Pa.1981). In making this calculation, the court compares the value of the property to the sum of the movant’s secured claim and those secured claims senior to that of the movant. E.g., In re Jug End in the Berkshires, Inc., 46 B.R. at 901. As the debtor notes, and I agree, in certain circumstances, an equity cushion by itself can constitute adequate protection within the meaning of section 362(d)(1). See, e.g., In re Mellor, 734 F.2d 1396, 1400 (9th Cir.1984); In re Grundstrom, 14 B.R. 791, 793 (Bankr.D.Mass.1981) & cases cited therein. However, the existence of an equity cushion, by itself does not always adequately protect the interest of a secured creditor. Various factors must also be considered. Among them are: the size of the equity cushion (sometimes expressed as a percentage of fair market value); the rate at which the cushion will be eroded; whether periodic payments are to be made to prevent or mitigate the erosion of the cushion; and, if the property is to be liquidated, the likelihood of a reasonably prompt sale. See e.g., Ukrainian Savings and Loan Association v. Trident Corp.; Matter of Schaller; In re Grundstrom. As noted above, the conclusion that an equity cushion exists is “based upon approximations founded upon opinions and assumptions.” In re Tucker, 5 B.R. 180, 182 (Bankr.S.D.N.Y.1980). To the extent the cushion is small, it may not be sufficient to constitute adequate protection: A seven percent equity cushion will rarely provide sufficient protection because a key component of the ratio, the fair market value" }, { "docid": "22125211", "title": "", "text": "required under the plan and to furnish operating capital and to permit the performance of repairs and rehabilitation of the premises in question. DISCUSSION Adequate Protection In those cases where there existed a so-called equity cushion, in that the value of the collateral exceeded the amount of the secured claim, it has been held that such equity cushion alone may suffice for the purpose of adequately protecting a secured claim holder during the period in which the automatic stay under 11 U.S.C. § 362 continued in effect. In re Pitts, 2 B.R. 476 (Bkrtcy.C.D.Cal.1979); In re Rogers Development Corp., 2 B.R. 679, 5 B.C.D. 1392 (Bkrtcy.E.D.Va.1980); In re San Clemente Estates, 5 B.R. 605, 6 B.C.D. 838, 2 C.B.C.2d 1003 (Bkrtcy.S.D.Cal.1980); In re Shockley Forest Industries, Inc., 5 B.R. 160, 6 B.C.D. 642, 2 C.B.C.2d 756 (Bkrtcy.M.D.Ga.1980). However, the absence of an equity cushion need not be fatal. Obviously if a debtor were able to obtain a surety bond for the protection of a secured claim and in an amount substantially in excess of the claim, the secured claimant would be hard pressed to assert that it was not adequately protected, notwithstanding the absence of an equity cushion. In such circumstances, even though the debtor could not then establish that an effective reorganization was likely, the debtor would be permitted a limited time in which to attempt to effect rehabilitation since the secured claimant would be adequately protected during that period and would not stand to lose any portion of its secured interest; the surety bond would compensate the creditor for any loss. The debtor’s concept of adequate protection is not as expansive or as extreme as the above illustration. The debtor confines its offer of adequate protection to the extent that this term is described in 11 U.S.C. § 361, namely protection against “a decrease in the value” of the creditor’s interest in the secured property. The debtor reasons that as long as it comes up with sufficient funds to repair and maintain the apartment house complex and sustains or enhances the physical status quo it should be allowed" }, { "docid": "1947357", "title": "", "text": "is not cause per se for relief from the automatic stay. Where, as in this case, the contractual default resulted from a record-keeping glitch or miscommunieation rooted in the past and does not reflect a current or ongoing failure or inability to make payments, cause does not exist for granting relief from stay. Furthermore, “where the value of the collateral substantially exceeds the secured creditor’s claim, a debtor’s breach of his financial obligation alone may not constitute ‘cause’ because the equity cushion in the collateral may provide the secured creditor with adequate protection.” In re Zeoli, 249 B.R. 61 (Bankr.S.D.N.Y.2000); see also In re El-mira Litho, Inc., 174 B.R. 892, 904 (Bankr.S.D.N.Y.1994) (“It is beyond cavil that an equity cushion can, under certain circumstances, serve as a form of adequate protection.”). In re Taylor, 151 B.R. 646 (E.D.N.Y.1993), a case cited by Chase Home Finance in support of the Lift-Stay Motion, cites In re Heath, 79 B.R. 616 (Bankr. E.D.Pa.1987) as authority. The court in In re Heath denied a motion for relief from stay in spite of that debtor’s failure to make any post-petition mortgage payments, because the current equity cushion adequately protected the creditor’s interest. Heath defined “equity cushion” as “the value in the property, above the amount owed to the creditor with a secured claim, that will shield that interest from loss due to any decrease in the value of the property during the time the automatic stay remains in effect.” 79 B.R. at 618 (quoting In re Roane, 8 B.R. 997, 1000 (Bankr.E.D.Pa.1981)); see also In re Zinke, 1989 WL 113154, *3 (E.D.N.Y. June 9, 1989). Heath applied the following formula to express the equity cushion as a percentage: (1) appraised fair market value, (2) minus the secured creditor’s lien, (3) divided by total encumbrances. Id. n. 3. In Heath, the equity cushion was 39%; in this case, the Court calculates the equity cushion at 75%. Taylor and Heath do not support Chase Home Finance’s position on the Lift-Stay Motion. The only factor that Chase Home Finance appears to have considered before filing the Lift-Stay motion" }, { "docid": "19249719", "title": "", "text": "which to service the debt, may appear to some degree in this case, the Court finds that, although they may be considered on issues of adequate protection or confirmation, they do not “rise to the level of egregiousness necessary to conclude that the reorganization process is being perverted in this case”. Little Creek Development Co. v. Common Wealth Mortgage Corp., 779 F.2d 1068, 1073 (5th Cir.1986). The motion to dismiss on the “bad faith” filing question is therefore denied. II. Citicorp also requests relief from the automatic stay or in the alternative, adequate protection. Relief from the stay “for cause” includes the lack of adequate protection of an interest in property under subsection (d)(1). “Adequate protection” may be provided in three nonexclusive alternative forms pursuant to Section 361 of the Code: (1) cash payment or periodic cash payments, (2) additional or replacement lien, or (3) other relief, with the exception of an administrative priority, as will result in the indubitable equivalent of the creditor’s interest. Conquest Offshore has not provided adequate protection to Citicorp in the form of cash payment, and has not provided additional liens as protection. No other evidence was presented by the debtor to show that the indubitable equivalent of Citicorp’s interest is being adequately protected by other means, other than expert testimony from a debtor’s witness which offered the appraised value of the vessels to be in excess of the debt owed to the creditor here. Citicorp offered substantial expert appraisal testimony to contradict that of the debtor. The Court concludes that, on the basis of the weight and credibility of the evidence, as shown below, the expert appraisal testimony of Citicorp witness proved that the value of the secured asset, on today’s market was substantially less than the debt owed. Where it is shown that a creditor is well secured, the “equity cushion” may constitute adequate protection in satisfaction of statutory requirements, and this cushion is considered the classic form of protection for a secured debt. In re San Clemente Estates, 5 B.R. 605 (Bankr.S.D.Cal.1980); In re Mellor, 734 F.2d 1396 (9th Cir.1984); In re" }, { "docid": "17223129", "title": "", "text": "such stay— (1) for cause, including the lack of adequate protection of an interest in property of such party in interest; or (2) with respect to a stay of an act against property, if— (A) the debtor does not have an equity in such property; and (B) such property is not necessary to an effective reorganization. The bankruptcy court annulled the automatic stay solely on the basis that the sellers’ “interest in and to the subject real estate lacks adequate protection.” The bankruptcy court failed to explain the legal or factual basis for this conclusion. It is true that the bankruptcy court found that the debtors and the estate did not have any “realizable equity” in the Upland residence. The fact that the debtor has no equity in the estate is not sufficient, standing alone, to grant relief from the automatic stay under section 362(d)(1). In re Suter, 10 B.R. 471, 472 (B.Ct.E.D.Penn.1981). The sellers argue that since the first trust deed to Weyerhauser ($66,700) and the second trust deed to AKOP ($123,278) total more than $189,000, which exceeds the value of the residence ($105,000), their interest ($17,960.06) lacked adequate protection. While the term “adequate protection” is not defined in the Code, 11 U.S.C. § 361 sets forth three non-exclusive examples of what may constitute adequate protection: 1) periodic cash payments equivalent to decrease in value, 2) an additional or replacement lien on other property, or 3) other relief that provides the indubitable equivalent. In re Curtis, 9 B.R. 110, 111-112 (B.Ct.E.D.Penn.1981). The Mellors contend that the sellers are adequately protected by an “equity cushion.” Although the existence of an equity cushion as a method of adequate protection is not specifically mentioned in § 361, it is the classic form of protection for a secured debt justifying the restraint of lien enforcement by a bankruptcy court. In re Curtis, 9 B.R. at 112. In fact, it has been held that the existence of an equity cushion, standing alone, can provide adequate protection. In re San Clemente Estates, 5 B.R. 605, 610 (B.Ct.S.D.Cal.1980); In re Tucker, 5 B.R. 180, 182 (B.Ct.S.D.N.Y.1980);" }, { "docid": "18737011", "title": "", "text": "the property during the time the automatic stay remains in effect. See, e.g., In re Mellor, 734 F.2d 1396, 1400 n. 2 (9th Cir.1984); In re Roane, 8 B.R. 997, 1000 (Bkrtcy.E.D.Pa.), aff'd, 14 B.R. 542 (E.D.Pa.1981). The court notes that some courts have rejected the equity cushion analysis as alien to the concept of adequate protection. See Matter of Bouquet Investment, 32 B.R. 988, 9 C.B.C.2d 715 (Bkrtcy.C.D.Cal.1983); In re Alyucan Interstate Corp., 12 B.R. 803 (Bkrtcy.D.Utah 1981). Those courts, however, have employed the notion of impairment of lien: The cushion analysis, by focusing on the ratio of debt to collateral, obscures the purpose of adequate protection, viz., to guard against impairment of a lien. This blurring of objectives may produce improper results. If Bankers Life had been undersecured at the petition, for example, the absence of cushion would have dictated relief from the stay, even though the stay did not impair its lien and notwithstanding the usual appreciation in the value of realty. In re Alyucan Interstate Corp., 12 B.R. at 810. Under either analysis the interest of SASA in the real property is adequately protected. SASA’s equity cushion based upon a debt of $17,663,900.69 and collateral valued on a worst case basis at $26,200,-000.00 and recognizing that real estate taxes are owing to the City of Atlantic City through June 1986 in the amount of $483,-766.68, is at least $8,000,000.00. There was no evidence that the property is depreciating in value. If SASA foreclosed today, it would be completely protected. With interest accruing at a rate of approximately $2,000,000.00 per year on SASA’s mortgage it would take several years for the equity cushion to fully erode. This court is not determining that SASA should wait that long. This court, however, must balance the interest of SASA against that of the debtor and its unsecured creditors. The debtor should be allowed the opportunity to reorganize so that it can make its other creditors whole as well. In balancing the respective harm, the court finds no substantial harm to SASA’s interest in the property in allowing the debtor additional" } ]

[ { "docid": "20611427", "title": "", "text": "it. During Shemirani’s plea colloquy, however, the district court did not satisfy the requirements of Rule ll(b)(l)(N). Although the court advised the defendant of other rights he was waiving in the plea agreement, it did not tell him about and ensure his understanding of the appeal waiver. For its part, the government said nothing during the plea colloquy about the appeal waiver. There is no dispute that the court failed to comply with Rule ll(b)(l)(N); the disagreement is over the effect of that deficiency in the context of this case. As noted above, the government urges us to enforce the written appeal waiver by its terms and so dismiss the appeal, whereas Shemirani contends that his waiver of his right to appeal was not knowing and voluntary, so we should address the substance of his appeal. Review of a claim of invalidity of an ostensible waiver of the right to appeal (but not the entire plea) raises difficult issues that are unsettled in this circuit, and as to which other courts take varying approaches. See, e.g., Tellado v. United States, 745 F.3d 48, 54 (2d Cir.) cert. denied, — U.S. -, 135 S.Ct. 125, 190 L.Ed.2d 96 (2014); United States v. Tanner, 721 F.3d 1231, 1233-34 (10th Cir.2013); United States v. Oliver, 630 F.3d 397, 412 (5th Cir.2011); Sotirion v. United States, 617 F.3d 27, 34-38 (1st Cir.2010); United States v. Frook, 616 F.3d 773, 777 (8th Cir.2010); United States v. Goodson, 544 F.3d 529, 539-541 (3d Cir.2008); United States v. Smith, 618 F.3d 657, 664-65 (7th Cir.2010); United States v. Sura, 511 F.3d 654, 655-56 (7th Cir.2007); United States v. Murdock, 398 F.3d 491, 498-99 (6th Cir.2005); United States v. Arellano-Gallegos, 387 F.3d 794, 797 (9th Cir.2004). Because, as discussed below, Shemirani’s sentencing challenges lack merit, and because Shemirani’s waiver of appellate rights is not a jurisdictional issue, we decline to decide whether he has effectively waived his right to appeal. We recognize the great care and attention the district courts in this circuit devote to the process of accepting criminal defendants’ guilty pleas. In order to assure consistent" } ]

[ { "docid": "21963783", "title": "", "text": "a restitution award. The judge also announced several general and special conditions of supervised release to which Ortega-Hernandez would be subject, including that he should cooperate with DNA collection and must not possess a firearm or other dangerous weapon. She said nothing about sex-offender registration. Three days later, the district judge entered the written judgment against Ortega-Hernandez. The judgment form is pre-printed, with spaces to enter information and options to check boxes. In the section entitled “Supervised Release,” the form lists generally applicable conditions of supervised release. It also lists five potential additional conditions with boxes for the judge to check if those conditions apply. As relevant here, the second of the five conditions prohibits the defendant from possessing a firearm, ammunition, and other weapons. The third condition mandates cooperation with DNA collection. The fourth condition orders compliance with the requirements of the Sex Offender Registration and Notification Act, 42 U.S.C. § 16901, et seq. (SORNA), as directed by the appropriate official. Ortega-Hernandez has never been convicted of a sex offense. To make the written judgment track the oral sentence, the judge should have checked the second and third boxes; instead, she checked the third and fourth. Ortega-Hernandez’s counsel filed a notice of appeal the following business day. II. We have jurisdiction over this appeal, irrespective of the validity of the appeal waiver. See United States v. Shemirani, No. 13-3080, 802 F.3d 1, 3-4, 2015 WL 5616250, at *2 (D.C.Cir. June 12, 2015). We review de novo the validity of Ortega-Hernandez’s waiver of the right to appeal his sentence. See United States v. Guillen, 561 F.3d 527, 531 (D.C.Cir.2009). A. The parties agree that Ortega-Hernandez should not be subject to sex- offender registration as a condition of his supervised release. They are correct, and the appeal waiver does not prevent us from so holding. Because “waiver of appellate rights is not a jurisdictional issue,” Shemirani, 802 F.3d at 3-4, 2015 WL 5616250, at *2, we need not enforce an appeal waiver when the government has not asked us to do so, see United States v. Jones, 667 F.3d 477, 486" }, { "docid": "21963784", "title": "", "text": "judgment track the oral sentence, the judge should have checked the second and third boxes; instead, she checked the third and fourth. Ortega-Hernandez’s counsel filed a notice of appeal the following business day. II. We have jurisdiction over this appeal, irrespective of the validity of the appeal waiver. See United States v. Shemirani, No. 13-3080, 802 F.3d 1, 3-4, 2015 WL 5616250, at *2 (D.C.Cir. June 12, 2015). We review de novo the validity of Ortega-Hernandez’s waiver of the right to appeal his sentence. See United States v. Guillen, 561 F.3d 527, 531 (D.C.Cir.2009). A. The parties agree that Ortega-Hernandez should not be subject to sex- offender registration as a condition of his supervised release. They are correct, and the appeal waiver does not prevent us from so holding. Because “waiver of appellate rights is not a jurisdictional issue,” Shemirani, 802 F.3d at 3-4, 2015 WL 5616250, at *2, we need not enforce an appeal waiver when the government has not asked us to do so, see United States v. Jones, 667 F.3d 477, 486 (4th Cir.2012) (“[T]he government does not seek to enforce the [appeal] waiver, and we will not sua sponte enforce it.”). By declining to raise the argument on appeal, the government may waive the appeal waiver’s bar against appellate review. See United States v. Story, 439 F.3d 226, 231 (5th Cir.2006) (“In the absence of the government’s objection to [the defendant’s] appeal based on his appeal waiver, the waiver is not binding because the government has waived the issue.”). That is precisely what the government has done in this case. The government has not asked us to enforce Ortega-Hernandez’s waiver of his right to appeal, at least with respect to the sex-offender registration condition imposed on him by the written judgment of sentence. The government conceded as much in oral argument. See Oral Arg. Rec, 20:05-:10 (“We are not asking this court to enforce [the appeal waiver] as to the SORNA registration requirement.”). The government and Ortega-Hernandez both affirmatively request in their briefing to us that we remand this case to the district court to conform" }, { "docid": "4108531", "title": "", "text": "18 U.S.C. § 3742,” he agreed to forgo both the procedural and the substantive challenges that he now seeks to press on appeal. See 18 U.S.C. § 3742(a)(1) (authorizing appeals of sentences “imposed in violation of law”); see also United States v. Buissereth, 638 F.3d 114, 117 (2d Cir.2011) (“While [the defendant’s] appeal waiver did not relieve the District Court of its responsibility to follow the procedural requirements related to the imposition of a sentence, the appeal waiver does preclude this Court from correcting the errors alleged to have occurred”); United States v. Soto-Cruz, 449 F.3d 258, 261 (1st Cir.2006) (rejecting the appellant’s argument that “enforcement of the appeal waiver would work a miscarriage of justice because the district court denied his request to present, in a closed hearing, mitigation evidence and evidence of his background” before the court imposed the sentence). Viewed ex ante, not even Adams would want this case decided as he argues it ex post. As we have observed before, “[allowing a defendant to waive the right to appeal his sentence ... gives him an additional bargaining chip to use in negotiating a plea agreement with the Government.” Guillen, 561 F.3d at 530. If the Government cannot count upon the waiver being enforced in the mine run of cases— those in which enforcing it would not work a miscarriage of justice — then waiver will lose its value as a “bargaining chip” for a defendant. For this reason, “the miscarriage of justice exception is a very narrow exception to the general rule that waivers of appellate rights are enforceable.” United States v. Blue Coat, 340 F.3d 539, 542 (8th Cir.2003). III. Conclusion Adams waived his right to appeal a sentence within the Guidelines range. The waiver is enforceable because he “has not shown that the district court worked a miscarriage of justice by failing to follow an essential procedure or relied upon a constitutionally impermissible factor.” Guillen, 561 F.3d at 532. Adams’s appeal is, therefore, • Dismissed." }, { "docid": "20611425", "title": "", "text": "plea. The written plea agreement that Shemirani signed with the advice of counsel stated that he “knowingly and willingly” waived his right to appeal his sentence (with limited exceptions that nobody contends apply here). Public App. 54. Shemirani claims that his appeal waiver was not “knowing, intelligent, and voluntary” and thus cannot be enforced, see United States v. Guillen, 561 F.3d 527, 529 (D.C.Cir.2009), but he does not seek to withdraw from any other aspect of the plea agreement. This court has acknowledged that a criminal defendant may by his plea agreement waive the right to appeal a sentence that is “within the statutory range and imposed under fair procedures.” Guillen, 561 F.3d at 530. Even though such a waiver is anticipatory, as it necessarily regards a sentence that has yet to be imposed, it “is nonetheless a knowing waiver if the defendant is aware of and understands the risks involved in his decision.” Id. at 529; see In re Sealed Case, 702 F.3d 59, 63 (D.C.Cir.2012) (reciting standard); see also United States v. Godoy, 706 F.3d 493, 495-96 (D.C.Cir.2013) (holding appeal waiver unenforceable where the sentencing judge told the defendant that, regardless of the terms of the plea agreement, he could appeal “any illegal sentence” — advice that “miseharaeter-ized the meaning of the waiver in a fundamental way”). To provide assurances of the informed voluntariness of a criminal defendant’s guilty plea and any accompanying plea agreement, Federal Rule of Criminal Procedure 11 requires district courts to conduct an oral, in-person colloquy with a defendant before accepting a plea of guilty. United States v. Vonn, 535 U.S. 55, 62, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002). Rule 11(b)(1) specifically provides that “the court must address the defendant personally in open court” to “inform the defendant of, and determine that the defendant understands” each of fifteen enumerated items, including “the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence.” Fed.R.CrimJP. ll(b)(l)(N). The court accepting Shemirani’s plea accordingly was required to discuss any appeal waiver with him in open court and determine that he understood" }, { "docid": "21763532", "title": "", "text": "to revert to the Treasury.” (emphasis added)). This is, therefore, not a case where “the opposing party los[t] its opportunity to contest the merits,” or where “an improvident or ill-advised opinion on the legal issues” is at risk. See Se. Mich. Gas Co. v. FERC, 133 F.3d 34, 42 n.3 (D.C. Cir. 1998). The result and issue are squarely raised before us. “Deciding fully briefed, purely legal questions is a quotidian undertaking for an appellate court.” See Ass’n of Am. R.R. v. U.S. Dep’t. of Transp., 821 F.3d 19, 26 (D.C. Cir. 2016). The concurrence claims the proper resolution of a fully briefed legal issue can still be in doubt, so “exceptional circumstances” cannot be invoked on that ground. See Concurrence at 1057-58. This view does not follow from our precedent. See Hodge v. Talkin, 799 F.3d 1145, 1171 (D.C. Cir. 2015) (“The district court ... did not reach Hodge’s vagueness challenge .... Here, we find it appropriate to consider Hodge’s vagueness claim. Not only does he ask us to address the challenge, but it raises pure questions of law. And the government joins issue with Hodge’s arguments on the merits rather than suggesting that we forbear on the matter.”). To be sure, the Executive Branch argues waiver. But as noted above, the Executive Branch also set forth a detailed response on the merits and identified the proper remedy. This is thus unlike the circumstance in which we declined addressing constitutional issues surrounding cy pres. Cf. Democratic Cent. Comm. v. Wash. Metro. Area Transit Comm’n, 84 F.3d 451, 455 n.2 (D.C. Cir. 1996) (declining to address the “controversial” use of cy pres distributions in class actions against the United States because, unlike here, “[t]his case ... is not a class action; the constitutional challenges mentioned above are not at issue here.”). We cannot be transgressing our discretion by resolving this issue. ii. Invoking Waiver Results In Injustice By failing to consider Mandan’s cy pres challenge, we permit a fundamental injustice: cy pres allows the Executive Branch to circumvent checks on its own power with the Judicial Branch’s imprimatur. The acceptability" }, { "docid": "21233710", "title": "", "text": "878, 886 n. 3 (8th Cir.2006) (citing Akeyo v. O’Hanlon, 75 F.3d 370, 374 n. 2 (8th Cir.1996) (“As a general rule, we do not address arguments raised for the first time in a reply brief....”)); United States v. Applied Pharmacy Consultants, Inc., 182 F.3d 603, 609 (8th Cir.1999). Here, the government did not raise the waiver argument at sentencing in response to Greene’s request for a sentence outside the applicable guidelines range. Nor did it raise the argument in its appellate brief. Indeed, the government’s brief expressly stated there was no plea agreement. It was not until oral argument that the government, for the first time, suggested Greene’s plea agreement foreclosed him from seeking a sentence outside the applicable guidelines range. Because the rec ord makes clear the government waived this argument, we decline to address it here. See Latorre v. United States, 193 F.3d 1035, 1037 n. 1 (8th Cir.1999) (declining to address whether appellant’s appeal was precluded by a waiver provision in the appellant’s plea agreement because the government had failed to raise the issue in the district court or in the appeal). Instead, we proceed to the merits of Greene’s claim. Ill This court reviews a district court’s sentence determination under an abuse-of-discretion standard. The United States Supreme Court recently clarified the scope of our review: [T]he appellate court ... must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence-including an explanation for any deviation from the Guidelines range. Assuming that the district court’s sentencing decision is procedurally sound, the appellate court should then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard. Gall, — U.S. —, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). See also Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996) (“The abuse-of-discretion standard includes review to determine that the discretion" }, { "docid": "4108529", "title": "", "text": "short his cross-examination of the Government’s witness, who testified about the medical care Adams would receive in prison. Third, Adams argues his sentence is substantively unreasonable. We do not consider any of these arguments because Adams waived his “right to appeal his sentence or the manner in which it was determined pursuant to 18 U.S.C. § 3742.” A “knowing, intelligent, and voluntary” waiver of the right to appeal “generally may be enforced.” United States v. Guillen, 561 F.3d 527, 529 (D.C.Cir.2009). We will not enforce a ,waiver, however, if “the defendant makes a colorable claim he received ineffective assistance of counsel in agreeing to the waiver” or “if the sentencing court’s failure in some material way to follow a prescribed sentencing procedure results in a miscarriage of justice.” Id. at 530-31. The latter exception applies if, for example, “the district court utterly fails to advert' to the factors in 18 U.S.C. § 3553(a),” the sentence exceeds the statutory maximum, or the sentence is “color-ably alleged to rest upon a constitutionally impermissible factor, such as the defendant’s race or religion.” Id. at 531. Adams relies upon the “miscarriage of justice” exception to argue that we should refuse to enforce the waiver, but he has neither claimed nor shown that any of the examples identified in Guillen, nor any comparably serious procedural failure, infects this case. Instead, Adams takes issue with the way in which the district judge exercised her discretion in deciding what evidence was relevant to the determination of his sentence. Specifically, he argues the district court should have postponed sentencing while he gathered additional medical evidence and should have allowed him more leeway to cross-examine the Government’s witness during the sentencing hearing. As other courts have explained, however, “an allegation that the sentencing judge misapplied the Sentencing Guidelines or abused his or her discretion is not subject to appeal in the face of a valid appeal waiver.” United States v. Andis, 333 F.3d 886, 892 (8th Cir.2003) (en banc). Accordingly, when Adams waived his right to appeal “his sentence or the manner in which it was determined pursuant to" }, { "docid": "8461756", "title": "", "text": "the majority’s assertion that it is simply enough that “we know the government objects on the ground that Mr. Rodebaugh did not preserve the issue.” Maj. Op. at 1289. Our case law requires more than conclusory assertions for a court to credit a party’s argument. See Utahns for Better Transp., 305 F.3d at 1169. The majority also states, “The government acknowledged that the district court had failed to make specific findings, but attributed the omission to Mr. Rodebaugh’s representation that he would soon lose his outfitter’s license and federal permits regardless of what the court did.” Maj. Op. at 1290; see also id. at 1290 n. 6. I cannot find where in the oral argument the Government made such an attribution. Although the Government mentioned the license suspensions, it did not explicitly link this to its invited error assertions and seemed to use it instead as part of its harmless error analysis. Oral Arg. at 21:25-59; 24:10-22. In sum, the Government waived or forfeited Mr. Rodebaugh’s waiver by the close of briefing. We opened the door at oral argument to a previously unraised invited-error argument. We would be overly generous to conclude that our assistance and the resultant inadequate argumentation remedied the Government’s failure to raise a waiver argument in its brief. Having already waived or forfeited the waiver in its brief, the Government did not change that at oral argument, even when the panel gave it an extra chance to do so. iv. Discretion to reach the merits This panel has discretion to overlook the Government’s waiver or forfeiture, see McGehee, 672 F.3d at 873 n. 5, but I would choose not to exercise it here. The Government admitted at oral argument that the district court had failed to make the necessary occupational restriction findings. The parties’ agreement that the district court erred is a compelling reason to reach the merits, especially in light of our court’s recent observation that “readily avoidable errors regarding [conditions of supervised release] appear too frequently on our docket.” United States v. Martinez-Torres, No. 14-2084, 795 F.3d 1233, 1234, 2015 WL 4590987, at *1" }, { "docid": "20611428", "title": "", "text": "e.g., Tellado v. United States, 745 F.3d 48, 54 (2d Cir.) cert. denied, — U.S. -, 135 S.Ct. 125, 190 L.Ed.2d 96 (2014); United States v. Tanner, 721 F.3d 1231, 1233-34 (10th Cir.2013); United States v. Oliver, 630 F.3d 397, 412 (5th Cir.2011); Sotirion v. United States, 617 F.3d 27, 34-38 (1st Cir.2010); United States v. Frook, 616 F.3d 773, 777 (8th Cir.2010); United States v. Goodson, 544 F.3d 529, 539-541 (3d Cir.2008); United States v. Smith, 618 F.3d 657, 664-65 (7th Cir.2010); United States v. Sura, 511 F.3d 654, 655-56 (7th Cir.2007); United States v. Murdock, 398 F.3d 491, 498-99 (6th Cir.2005); United States v. Arellano-Gallegos, 387 F.3d 794, 797 (9th Cir.2004). Because, as discussed below, Shemirani’s sentencing challenges lack merit, and because Shemirani’s waiver of appellate rights is not a jurisdictional issue, we decline to decide whether he has effectively waived his right to appeal. We recognize the great care and attention the district courts in this circuit devote to the process of accepting criminal defendants’ guilty pleas. In order to assure consistent enforceability of waivers of rights in plea agreements, courts conducting plea colloquies must scrupulously adhere to the obligations of Rule 11. We also take this opportunity to emphasize that the United States Attorney’s Office would be well advised to develop instructions and training for its attorneys to make it part of their routine practice to help ensure that district courts fulfill each of the requirements of Rule 11, including Rule ll(b)(l)(N), when a defendant enters a plea. II. Turning to the merits of Shemirani’s appeal of his sentence, we conclude that the district court did not err in evaluating the first of two requests for a downward departure at issue in this case. Shemirani argues that the district court intended to grant a downward departure from the Guidelines range but erred by imposing a within-Guidelines sentence. Cf. United States v. Vazquez-Lebron, 582 F.3d 443, 445 (3d Cir.2009). The record reveals, however, that the district court did not intend to grant the departure motion. The court instead imposed a sentence within the Guidelines range, appropriately considered" }, { "docid": "23450822", "title": "", "text": "848 (7th Cir.2005) (“There may be sound strategic reasons why a criminal defendant will elect to pursue one sentencing argument while also choosing to forego another, and when the defendant selects as a matter of strategy, he also waives those arguments he decided not to present.”); see also United States v. Jacques, 345 F.3d 960, 962 (7th Cir.2003). “Unlike forfeiture, waiver is not subject to plain error analysis, because the waiver extinguishes any error.” United States v. Redding, 104 F.3d 96, 99 (7th Cir.1996). We have previously held that defense counsel’s oral acceptance of the terms of a PSR without objections constitutes a waiver of the defendant’s rights to subsequently challenge the sentence. United States v. Brodie, 507 F.3d 527, 531-32 (7th Cir.2007); United States v. Staples, 202 F.3d 992, 995 (7th Cir.2000). As we explained in our decision in Jaimes-Jaimes, however, there is no rigid rule for finding waiver in acquiescence. Instead, we evaluate each omission individually. Jaimes-Jaimes, 406 F.3d at 848. Where the government cannot proffer any strate gie justification for a decision, we can assume forfeiture. Brodie, 507 F.3d at 532. Under the aforementioned precedent, this case is a close one. Anderson may have well tried to salvage a generally favorable plea agreement to the greatest extent possible after seeing a conviction looming on the horizon. An objection on the grounds that the government failed to move for a promised § 3E3.1(b) reduction would not have advanced Anderson’s cause by much because by its terms, the credit applies only to defendants who plead guilty early enough that “the government may avoid preparing for trial.” We need not identify the exact point in time at which an individual becomes ineligible for § 3E3.1(b), but we have no difficulty concluding that Anderson, who brought the signed plea agreement in on the fourth day of trial, was too late. Appellant’s counsel may have anticipated that the district court would also reach this reasonable conclusion and decided that the argument was not worth advancing. Indeed, she and Anderson could have thought that asking for the third-level reduction would antagonize the sentencing" }, { "docid": "20611424", "title": "", "text": "Opinion for the Court filed by Circuit Judge PILLARD. PILLARD, Circuit Judge: Arsalan Shemirani pleaded guilty to conspiracy to violate the International Emergency Economic Powers Act (IEEPA), 50 U.S.C. §§ 1701-1706, and to defraud the United States, 18 U.S.C. § 371, by unlawfully exporting United States-origin electronics and power equipment to Iran via Canada and Hong Kong. On appeal, She-mirani raises two challenges to his sentence. First, he claims that the sentencing court granted a motion for downward departure from the recommended Sentencing Guidelines range, but that the court failed to calculate the departure correctly. Second, he contends that the sentencing court did not give the requisite individualized consideration to his request for a six-month downward departure — a departure that he argues is necessary to bring his sentence into line with those of defendants in similar circumstances convicted of similar offenses. Finding no error, we affirm the sentence imposed by the district court. I. The government argues that the appeal should be dismissed because Shemirani waived his appeal rights when he entered his guilty plea. The written plea agreement that Shemirani signed with the advice of counsel stated that he “knowingly and willingly” waived his right to appeal his sentence (with limited exceptions that nobody contends apply here). Public App. 54. Shemirani claims that his appeal waiver was not “knowing, intelligent, and voluntary” and thus cannot be enforced, see United States v. Guillen, 561 F.3d 527, 529 (D.C.Cir.2009), but he does not seek to withdraw from any other aspect of the plea agreement. This court has acknowledged that a criminal defendant may by his plea agreement waive the right to appeal a sentence that is “within the statutory range and imposed under fair procedures.” Guillen, 561 F.3d at 530. Even though such a waiver is anticipatory, as it necessarily regards a sentence that has yet to be imposed, it “is nonetheless a knowing waiver if the defendant is aware of and understands the risks involved in his decision.” Id. at 529; see In re Sealed Case, 702 F.3d 59, 63 (D.C.Cir.2012) (reciting standard); see also United States v. Godoy," }, { "docid": "21963786", "title": "", "text": "the written judgment to the oral pronouncement of the sentence. See Gov’t Br. 15; Appellant’s Br. 22. Because the “pronouncement of the sentence constitutes the judgment of the court,” United States v. Love, 593 F.3d 1, 9 (D.C.Cir.2010) (quoting Kennedy v. Reid, 249 F.2d 492, 495 (D.C.Cir.1957)), when the written judgment is inconsistent with the pronouncement of the sentence, “we will order the judgment corrected to conform to the sentence imposed from the bench,” id. It appears that the judge was one line off when she checked the two boxes. We therefore remand to the district court with instructions to conform the written judgment to the oral sentence. B. Ortega-Hernandez raises a second challenge to his sentence: He contends that his within-guidelines term of imprisonment is unreasonable. According to Ortega-Hernandez, the district judge failed to adequately consider, and give appropriate mitigating weight to, his mental health, and failed to sufficiently explain her reasons for refusing his request for a downward variance from the guideline range. The government asserts that Ortega-Hernandez validly waived his challenge to the length of a sentence within the guideline range and so we should not consider it. We agree with the government. The government has waived enforcement of the appeal waiver only as to the condition of supervised release requiring Ortega-Hernandez to register as a sex offender. It seeks enforcement of the appeal waiver as to the procedural and substantive reasonableness of Ortega-Hernandez’s term of imprisonment. Such partial invocation of the appeal waiver is permissible. See Story, 439 F.3d at 231 (determining that the defendant’s “waiver of appeal is enforceable to the extent that the government invokes the waiver provision in his plea agreement”). Because we are satisfied that Ortega-Hernandez made a knowing, intelligent, and voluntary waiver of his right to appeal his sentence to a term of imprisonment within the guideline range, we will enforce that waiver. See Guillen, 561 F.3d at 529 (stating that “knowing, intelligent, and voluntary” ap peal waivers “generally may be enforced”); cf. United States v. Andis, 333 F.3d 886, 890 (8th Cir.2003) (en banc) (“The requirement that a plea agreement" }, { "docid": "20611426", "title": "", "text": "706 F.3d 493, 495-96 (D.C.Cir.2013) (holding appeal waiver unenforceable where the sentencing judge told the defendant that, regardless of the terms of the plea agreement, he could appeal “any illegal sentence” — advice that “miseharaeter-ized the meaning of the waiver in a fundamental way”). To provide assurances of the informed voluntariness of a criminal defendant’s guilty plea and any accompanying plea agreement, Federal Rule of Criminal Procedure 11 requires district courts to conduct an oral, in-person colloquy with a defendant before accepting a plea of guilty. United States v. Vonn, 535 U.S. 55, 62, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002). Rule 11(b)(1) specifically provides that “the court must address the defendant personally in open court” to “inform the defendant of, and determine that the defendant understands” each of fifteen enumerated items, including “the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence.” Fed.R.CrimJP. ll(b)(l)(N). The court accepting Shemirani’s plea accordingly was required to discuss any appeal waiver with him in open court and determine that he understood it. During Shemirani’s plea colloquy, however, the district court did not satisfy the requirements of Rule ll(b)(l)(N). Although the court advised the defendant of other rights he was waiving in the plea agreement, it did not tell him about and ensure his understanding of the appeal waiver. For its part, the government said nothing during the plea colloquy about the appeal waiver. There is no dispute that the court failed to comply with Rule ll(b)(l)(N); the disagreement is over the effect of that deficiency in the context of this case. As noted above, the government urges us to enforce the written appeal waiver by its terms and so dismiss the appeal, whereas Shemirani contends that his waiver of his right to appeal was not knowing and voluntary, so we should address the substance of his appeal. Review of a claim of invalidity of an ostensible waiver of the right to appeal (but not the entire plea) raises difficult issues that are unsettled in this circuit, and as to which other courts take varying approaches. See," }, { "docid": "20611429", "title": "", "text": "enforceability of waivers of rights in plea agreements, courts conducting plea colloquies must scrupulously adhere to the obligations of Rule 11. We also take this opportunity to emphasize that the United States Attorney’s Office would be well advised to develop instructions and training for its attorneys to make it part of their routine practice to help ensure that district courts fulfill each of the requirements of Rule 11, including Rule ll(b)(l)(N), when a defendant enters a plea. II. Turning to the merits of Shemirani’s appeal of his sentence, we conclude that the district court did not err in evaluating the first of two requests for a downward departure at issue in this case. Shemirani argues that the district court intended to grant a downward departure from the Guidelines range but erred by imposing a within-Guidelines sentence. Cf. United States v. Vazquez-Lebron, 582 F.3d 443, 445 (3d Cir.2009). The record reveals, however, that the district court did not intend to grant the departure motion. The court instead imposed a sentence within the Guidelines range, appropriately considered the sentencing factors set forth by 18 U.S.C. § 3553, and explained how and why it arrived at the specific sentence that it imposed. The transcript of the sentencing hearing and the court’s Judgment confirm the court’s reasoning. The judge heard what the government was requesting and its proposed methodology and expressed his disagreement with it. III. Finally, we conclude that Shemirani’s request for a six-month departure was given adequate consideration before it was denied. Defendants are entitled to an individualized consideration by the sentencing judge. See Gall v. United States, 552 U.S. 38, 52, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). For that reason, and to ensure an adequate record on appeal, sentencing judges must explain their reasons for imposing a particular sentence. See Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); In re Sealed Case, 527 F.3d 188, 192 (D.C.Cir.2008). Moreover, courts have held that sentencing judges commit reversible error when they ignore a defendant’s non-frivolous argument for leniency. See, e.g., United States v. Friedman, 658" }, { "docid": "5265582", "title": "", "text": "on their hands and they write a lot of FOIA requests, and it is a burden to agencies especially like the FBI ....” Oral Arg. Rec. at 16:43-17:00. But the government did not clearly make this argument in its brief, despite amicus having called into question the weight of interests served by enforcing FOIA waivers in plea agreements. True, in another point gone missing from the government’s brief and raised by its counsel only at oral argument, FOIA waivers may occasionally promote the government’s legitimate interest in finality. But as best we can tell, FOIA waivers promote finality only by making it more difficult for criminal defendants to uncover exculpatory information or material showing that their counsel provided ineffective assistance. That argument takes the finality interest too far. After all, a defendant can never waive his right to bring a color-able claim of ineffective assistance of counsel, even though such claims undermine finality. See Guillen, 561 F.3d at 530 (holding that plea waivers are unenforceable “insofar as the defendant makes a color-able claim he received ineffective assistance of counsel in agreeing to the waiver”); see also Washington v. Lampert, 422 F.3d 864, 869 (9th Cir. 2005) (noting that “other circuits have barred waivers of [ineffective assistance of counsel] claims associated with the negotiation of plea agreements”). Some courts have even suggested that the right to material exculpatory information under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), also cannot be waived. See, e.g., McCann v. Mangialardi, 337 F.3d 782, 787-88 (7th Cir. 2003). And as amicus observes, FOIA plays a significant role in uncovering undisclosed Brady material and evidence of ineffective assistance of counsel, see Amicus Br. 27, and in practice has led to uncovering records relevant to ineffective-assistance-of-counsel claims, such as plea offers not communicated by defense counsel to clients, see Hare v. United States, 688 F.3d 878, 880 (7th Cir. 2012); Albillo-De Leon v. Gonzales, 410 F.3d 1090, 1100 (9th Cir. 2005), as well as evidence of Brady violations, see Monroe v. Angelone, 323 F.3d 286, 294 (4th Cir. 2003); Bagley v. Lumpkin," }, { "docid": "5265607", "title": "", "text": "principle in mind, we have previously said that a waiver will not be enforced if, “in agreeing to the waiver,” the defendant received ineffective assistance of counsel, or “if the sentencing court’s failure in some material way to follow a prescribed sentencing procedure results in a miscarriage of justice,” or if the sentence rested “on some constitutionally impermissible factor.” United States v. Guillen, 561 F.3d 527, 530-31 (D.C. Cir. 2009). Similarly, the Supreme Court has prohibited prospective waiver under the Speedy Trial Act, see Zedner v. United States, 547 U.S. 489, 502-03 & n.5, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006), as well as waiving the right to be present within Federal Rule of Criminal Procedure 43, see Crosby v. United States, 506 U.S. 255, 259-62, 113 S.Ct. 748, 122 L.Ed.2d 25 (1993). But, when a right does not implicate the structural protections of the criminal justice system, it is susceptible to waiver—and the waiver will be upheld if it is knowing, voluntary, and intelligent. Cf. Guillen, 561 F.3d at 530 (explaining why the right to appeal one’s sentence may be waived; “his waiver relieves neither his attorney nor the district court of their obligations to satisfy applicable constitutional requirements”). Applying this principle here, Price’s FOIA waiver does not threaten the legitimacy of the criminal justice system. He had the benefit of the criminal discovery process, received (and approved) a detailed factual recitation within his guilty plea, and he retains the right to FOIA materials outside the investigation and prosecution of his case. Though Price’s public policy arguments against FOIA waivers make much of FOIA’s allegedly helpful role in identifying prosecutorial misconduct, it is hard to believe a miscarriage of justice could be so subtle that only a FOIA request—one still subject to that statute’s nine disclosure exceptions, mind you— would reveal it. Nothing about the criminal justice system’s structural integrity is risked by this limited waiver of Price’s FOIA rights. III. Today’s opinion will not be cabined by the majority’s insistence that this is a “FOIA suit.” Nor will the ban on FOIA waivers only apply to the public" }, { "docid": "23069342", "title": "", "text": "of a denial of a constitutional right” was in error. Request for a Certificate of Appealability Pursuant to Rule 22(a)(B)(2), Rules of Appellate Procedure (“Capp Motion”) 5. In the same motion, Mabry urged the court to determine whether the waiver was made knowingly and voluntarily. He took the District Court to task for enforcing the waiver, alluding in general terms to his contention that the waiver was not knowing and voluntary. Capp Motion 9 (“[T]here is more than good reason, why, this Court should not enforce the waiver provision of the plea agreement, in light of Campusano v. United States, 442 F.3d 770 (2d Cir.2006). Under the circumstance here, there has been a miscarriage of justice, since the appeal waiver was not knowingly and voluntarily made by appellant.”) (all grammatical errors in original). Mabry did not contend, however, that he was misled in any way into pleading guilty or agreeing to the waiver. Nor did his motion state, with any specificity, how the waiver might not be knowing or voluntary; he did not claim to misunderstand the waiver or assert any confusion as to the meaning of the term “miscarriage of justice” used by the Court during the colloquy. In our Order entered on January 8, 2007, we granted the certificate of appeala-bility as to the following issues: (1) whether appellant’s waiver of his right to appeal and collaterally challenge his sentence was knowing and voluntary and whether that waiver is enforceable, see United States v. Khattak, 273 F.3d 557, 562-63 (3d Cir.2001); (2) if so, whether that waiver either bars consideration of appellant’s 28 U.S.C. § 2255 motion or precludes relief on the merits of his claim that his counsel rendered ineffective assistance by failing to file a requested appeal, see, e.g., Campusano v. United States, 442 F.3d 770, 773-75 (2d Cir.2006); Gomez-Diaz v. United States, 433 F.3d 788, 793-94 (11th Cir.2005); and (3) whether appellant is entitled to relief on the claims that he asserts his counsel should have raised on direct appeal. The Clerk will request counsel to represent appellant under Internal Operating Procedure 10.3.2. We have" }, { "docid": "3488846", "title": "", "text": "Opinion for the Court filed by Chief Judge GARLAND. GARLAND, Chief Judge: Paul Kaufman was a salaried employee at a nonprofit that received federal funds. Feeling “overworked and undercompensat-ed,” Kaufman formed two outside companies and used his position at the nonprofit to approve invoices in their name. Between 2004 and 2012, Kaufman employed this scheme to pay himself over $110,000 in additional compensation. He also used the nonprofit’s credit cards to pay for a variety of personal expenses, totaling at least $46,000. Once discovered, he pled guilty to embezzling from an organization that received' federal funds. On appeal, he challenges the 24-month sentence imposed by the district court. For the reasons set forth below, we affirm the judgment. I The government asserts that we should not even consider this appeal because Kaufman’s plea agreement expressly waived his right to appeal his sentence. Kaufman did indeed “waive the right to appeal the sentence in this case, including any term of imprisonment,” unless the sentence was above the statutory maximum or above the U.S. Sentencing Guidelines range determined by the court. Plea Agreement 7 (J.A. 129). Neither circumstance is present here. See 18 U.S.C. § 666(a) (indicating that Kaufman’s statutory maximum would be 10 years); infra Part II (discussing Kaufman’s Guidelines range). Ordinarily, then, we would agree with the government that Kaufman’s appeal is barred. See, e.g., United States v. Adams, 780 F.3d 1182, 1183-84 (D.C.Cir.2015); United States v. Guillen, 561 F.3d 527, 529 (D.C.Cir.2009). At Kaufman’s plea hearing, however, the district court made two problematic statements in explaining the waiver provision in the plea agreement. The court initially told Kaufman that he “would still have the right to appeal the sentence if [he] believe[d] the sentence is illegal.” Plea Hr’g Tr. 9. Later, it told him that he might have the right to appeal, under some circumstances, if he did not “like” the sentence. Id. at 22. Those statements transformed the nature of Kaufman’s plea waiver in the same way the district court’s plea colloquy did in United States v. Godoy, 706 F.3d 493 (D.C.Cir.2013). There, notwithstanding that the defendant had" }, { "docid": "3488847", "title": "", "text": "determined by the court. Plea Agreement 7 (J.A. 129). Neither circumstance is present here. See 18 U.S.C. § 666(a) (indicating that Kaufman’s statutory maximum would be 10 years); infra Part II (discussing Kaufman’s Guidelines range). Ordinarily, then, we would agree with the government that Kaufman’s appeal is barred. See, e.g., United States v. Adams, 780 F.3d 1182, 1183-84 (D.C.Cir.2015); United States v. Guillen, 561 F.3d 527, 529 (D.C.Cir.2009). At Kaufman’s plea hearing, however, the district court made two problematic statements in explaining the waiver provision in the plea agreement. The court initially told Kaufman that he “would still have the right to appeal the sentence if [he] believe[d] the sentence is illegal.” Plea Hr’g Tr. 9. Later, it told him that he might have the right to appeal, under some circumstances, if he did not “like” the sentence. Id. at 22. Those statements transformed the nature of Kaufman’s plea waiver in the same way the district court’s plea colloquy did in United States v. Godoy, 706 F.3d 493 (D.C.Cir.2013). There, notwithstanding that the defendant had signed a plea waiver similar to Kaufman’s, the court told the defendant, that he was waiving his right to appeal unless he should “come to believe ... that the Court has done something illegal, such as imposing a period of imprisonment longer than the statutory maximum.” Id. at 495. That explanation, we said, “mischaracterized the meaning of the waiver in ^ fundamental way.” Id. “Taken for its plain meaning — which is how criminal defendants should be entitled to take the statements of district court judges— the court’s explanation allows [the defendant] to appeal any illegal sentence.” Id. The same is true here. As in Godoy, the prosecution could have sought to correct the district court’s statements and to ensure that the defendant understood the right he was agreeing to forgo by submitting a guilty plea. Id.; see also United States v. Fareri, 712 F.3d 593, 594 (D.C.Cir.2013). But the prosecution did not object. Under those circumstances, “the district court’s oral pronouncement controls,” and the defendant’s “appeal is not barred.” Godoy, 706 F.3d at 496;" }, { "docid": "5265571", "title": "", "text": "related to his case and that he had waived his right to them. In May 2014, Price challenged the denial in a pro se suit in district court, arguing that FOIA rights cannot be waived. In the alternative, he argued that the waiver did not cover all of the records he sought. In August 2014, the district court granted the government summary judgment, concluding that the FBI had lawfully denied Price’s requests. According to the district court, it would be anomalous to forbid the waiver of a statutory right under FOIA when the Supreme Court has allowed the waiver of important constitutional rights. The district court did not address Price’s argument that some of the information he requested was not covered by his waiver. Price timely filed a notice of appeal from the district court’s order, and we have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a district court’s “decision granting summary judgment to an agency claiming to have complied with” its obligations under FOIA. Schrecker v. U.S. Dep’t of Justice, 349 F.3d 657, 661-62 (D.C. Cir. 2003). The government argues that this suit is an attempt by Price to challenge his conviction or sentence that turns on whether his waiver was knowing, voluntary, and intelligent. We see it differently. This is a FOIA suit in which we are asked to determine de novo whether the FBI lawfully withheld records that Price requested. II In general, “[cjriminal defendants may waive both constitutional and statutory rights, provided they do so voluntarily and with knowledge of the nature and consequences of the waiver.” United States v. Mabry, 536 F.3d 231, 236 (3d Cir. 2008) (citations omitted); accord United States v. Guillen, 561 F.3d 527, 530 (D.C. Cir. 2009); see also United States v. Ruiz, 536 U.S. 622, 629-30, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002) (“A defendant, for example, may waive his right to remain silent, his right to a jury trial, or his right to counsel .... ”). Amicus contends that the district court should have declined to enforce the waiver, first because FOIA rights are never" } ]

[ { "docid": "8802922", "title": "", "text": "in-court identification of appellant was unnecessarily suggestive and unreliable. Second, he contends that the evidence presented at trial was insufficient to sustain his conviction. We address these claims in turn. To restate briefly, Ms. Montoya selected appellant’s photograph from a police photo array the day after the robbery. At appellant’s trial, she testified concerning her selection of appellant’s photograph from the array and identified appellant in the courtroom as the perpetrator. Appellant contends that Ms. Montoya’s in-court identification was unnecessarily suggestive because appellant was the only young Hispanic male seated before the bar. Appellant further asserts that Ms. Montoya’s identification testimony was unreliable because she did not remember seeing a defining feature of appellant’s appearance — a tattoo reading “lowrider” across his knuckles — even though she testified that she saw the perpetrator hold up a gun for several minutes. In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the Supreme Court stated that “convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Id. at 384, 88 S.Ct. at 971. Where an eyewitness’s pretrial photographic identification was not impermissibly suggestive, the admission of her in-court identification of the defendant does not violate the defendant’s right to due process. See, e.g., United States v. Lopez, 803 F.2d 969, 973 n. 1 (9th Cir.1986) (holding that if a witness’s in-court identification is supported by a pretrial photospread identification and the defendant “does not claim that the photo-spread procedure was unnecessarily or impermissibly suggestive[,] ... our inquiry ends”), cert. denied, 481 U.S. 1030, 107 S.Ct. 1958, 95 L.Ed.2d 530 (1987); United States v. Davies, 768 F.2d 893, 903 (7th Cir.) (“Having failed to assert that the [pretrial] photographic identification ... was impermissibly suggestive[,] we will not now hold the subsequent in-court identification invalid.”), cert. denied, 474 U.S. 1008, 106 S.Ct. 533, 88 L.Ed.2d 464 (1985); cf. United States v. Gray, 958 F.2d 9, 14" } ]

[ { "docid": "15241483", "title": "", "text": "to make in-court identification because her vision was poor, but was able to identify him from photo array). So long as the record indicates that the witness had a sufficient basis for identifying the defendant (e.g., an adequate opportunity to observe the defendant at the time of the offense), her inability to identify him prior to trial normally will not detract from her in-court identification. E.g., United States v. Matthews, 20 F.3d at 547-48 (lack of pretrial identification did not undermine witnesses’ in-court identifications, where their testimony was “sufficient to establish that their identifications had an origin independent of their viewing [defendant] in the courtroom and hence was sufficient to meet the threshold of reliability needed to permit them to attempt in-court identifications of the men they had seen”); see also United States v. Davies, 768 F.2d 893, 904 (7th Cir.1985) (“[generally, the question of the suggestiveness or credibility of the in-court identification is to be resolved ultimately by the jury after the defendant has had an opportunity to test the accuracy of an identification through cross-examination”). By contrast, Meredith’s initial inability to identify McFowler was not explained by any such circumstance. Indeed, Meredith did not profess to have had any inability to make an identification, or uncertainty about her ability, in viewing the lineup. Only when she was confronted with the possibility that she had picked Byndum rather than McFowler did she say that she had picked both. Nothing in the record explains why at the lineup, on the very day of the offense, Meredith could have picked two people as the one person she saw holding the shotgun and then two years later picked McFowler alone. Nothing, that is, except the inherently suggestive environs of the courtroom. See Ken-naugh, 289 F.3d at 46. Indeed, Meredith’s testimony itself calls into doubt the reliability of her identification. In testifying on cross-examination that she identified both Byndum and McFowler at the lineup, Meredith not only contradicted her own initial testimony, but gave an answer that makes no sense on the facts. Inconsistencies in a witness’s testimony are not unusual either, and" }, { "docid": "12397563", "title": "", "text": "the totality of the circumstances test announced in Biggers, stating that “reliability is the linchpin in determining the admissibility of identification testimony.” Id. at 114, 97 S.Ct. at 2253. The court held that the identification was admissible under the totality of the circumstances, noting that the photo identification took place only two days after the crime. Hill argues that the identification in this case was extremely suggestive and bears none of the indicators of reliability. He relies on the Sixth Circuit case of United States v. Russell, 532 F.2d 1063 (6th Cir.1976), which also involved an armed bank robbery and the testimony of three eyewitnesses. The court examined the significance of eyewitness testimony, stating that “[t]here is a great potential for misidentifi-cation when a witness identifies a stranger based solely upon a single brief observation, and this risk is increased when the observation was made at a time of stress or excitement.” Id. at 1066. Hill points out that Bramer was the only teller to identify Russell Hill and she testified that she was terrified at the time of the robbery and had only a couple of minutes to observe the robber. She testified that during part of that time she was watching the gun aimed at her. The Russell court also stated that although eyewitness testimony is very susceptible to “post-experience suggestion” and frequently unreliable, it is very persuasive to juries: “This problem is important because of all the evidence that may be presented to the jury, a witness’ in-court statement that ‘he is the one’ is probably the most dramatic and persuasive.” Id. at 1067. In Thigpen v. Cory, 804 F.2d 893 (6th Cir.1986), the court addressed suggestive pretrial encounters that were not the result of government action. In that case, the eyewitness was robbed by two men. He failed to identify one of the suspects, Willie Thigpen, at a pre-trial lineup nine hours after the crime. He saw him again at a pretrial hearing for the other man twelve days later. After seeing Thigpen a third time at the trial of the other man, the witness told" }, { "docid": "14038991", "title": "", "text": "Howard out of the lineup. In court, he testified without equivocation that Howard was the killer. Further weighing in Gapinski’s favor is his clean “record of reliability,” as he had not previously had an opportunity to identify the shooter. See Biggers, 409 U.S. at 201, 93 S.Ct. 375 (noting that witness had a good “record of reliability,” insofar as she had not identified any suspect in previous showups, lineups, and photographic showings). Thus, Gapinski’s certainty supports the reliability of his identification. The fifth factor looks at the length of time between the initial observation and the identification. The initial observation happened on June 9, 1989. The identification occurred on September 27, 1989. The trial commenced in March 1990. Three months is not a great length of time between an observation and identification. See United States v. Causey, 834 F.2d 1277, 1286 (6th Cir.1987) (“A three to four-month delay between the crime and the identification does not render the identification inherently unreliable.”). Under the totality of the circumstances, we find reasonable the state court’s conclusion that Gapinski’s identification was sufficiently reliable to overcome any suggestive procedure. Most important, Gapinski was closely proximate to the killer at the time of the shooting. Nothing shielded the shooter’s features. Gapinski was highly alerted by the gun shots and tense situation. He unequivocally picked out Howard only three months after the crime. His identification was reliable. Our finding here is consistent with past decisions in which we have found identifications reliable. In United States v. Meyer, 359 F.3d 820 (6th Cir.), cert. denied, — U.S. -, 125 S.Ct. 112, 160 L.Ed.2d 182 (2004), we discussed the Biggers factors against a backdrop similar to the facts presented here. We examined whether a victim had sufficient opportunity to observe the perpetrator of a postal robbery to overcome an arguably suggestive pretrial identification. We found that he did. In Meyer, the witness had observed the perpetrator at close range for the two to four minutes the robbery lasted. The perpetrator had opened the postal driver’s door, pointed a gun in the driver’s face, and demanded a cash box." }, { "docid": "6517992", "title": "", "text": "trial, which provided him with ample opportunity to defend himself against the charges. Under Cook, a formal arraignment would be excused in this case. Moreover, we cannot say that Rogers’ absence at his arraignment led to manifest injustice. We therefore affirm Rogers’ conviction on this ground. C. Identification Procedures Rogers further argues that the government’s in-court identification procedures were impermissibly suggestive and unreliable because he was one of only a few African Americans present in the courtroom. Rogers only explicitly challenges the in-court identification by Shane Collins, a witness for the government who had been unable to identify Rogers in a photo array one week after the robbery yet pointed to Rogers in the courtroom. To sustain his claim, Rogers must demonstrate both that the government’s questioning of Collins was impermissibly suggestive and that it created a “ ‘very substantial likelihood of irreparable misidentifieation under the totality of the circumstances.’” See United States v. Murdock, 928 F.2d 293, 297 (8th Cir.1991) (quoting Manson v. Brathwaite, 432 U.S. 98, 116, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977)), cert. denied, — U.S. -, 116 S.Ct. 260, 133 L.Ed.2d 184 (1995). On cross-examination, Rogers’ counsel placed the reliability and accuracy of the Collins’ identification in context for the jury: he highlighted that Collins had only seen the suspect fleeing across his backyard for a few minutes and that he could not identify Rogers in a photo lineup one week later. Rogers’ counsel also noted that, other than a few persons sitting in the spectator gallery, Rogers was the only black in the courtroom. In addition to Collins’ testimony, at least two other government witnesses identified Rogers, including Travis Hammers, Rogers’ getaway driver. The additional testimony diminishes any likelihood of irreparable mis-identifieation in this case. We therefore conclude that while Collins’ identification of Rogers may have been tainted, we cannot say that the procedures used in this case violated Rogers’ due process rights. D. Sufficiency of the Evidence Finally, Rogers challenges the sufficiency of the evidence for his convictions. We can reverse the jury’s determinations only if, after review of the entire record" }, { "docid": "1506043", "title": "", "text": "convicting the appellant, Harris. The government’s successful case against him was based significantly upon his in-court identification by Mahoney and the circumstances of his apprehension immediately following the robbery, together with other suspects, in the apartment of Pinkett. First, appellant says that “it was prejudicial error for the court to permit the only witness who placed the defendant at the robbery to make an in-court identification where the government did not establish by clear and convincing evidence that such identification was based upon observations of the defendant untainted by the improper lineup identification.” The trial court was observant of the procedure taught by Clemons v. United States, 133 U.S.App.D.C. 27, 408 F.2d 1230 (1968), cert. denied, 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969). On facts elicited out of the presence of the jury it ruled that the line-up identification was unduly suggestive because only the seven suspects were presented for possible identification. Having found this a violation of due process, the court considered whether the tendered in-court identifications had an untainted and independent source and thus were admissible. Under this test it concluded that some were not but that Mahoney’s in-court identification of appellant was admissible. The court nonetheless did not preclude appellant from bringing out circumstances in the pre-trial confrontation which could have affected the weight the jury accorded the in-court identification. Given a line-up adjudged by the trial court to be illegal, it was incumbent upon the government to establish by clear and convincing evidence that the in-court identification was based upon observation of the suspect other than at the line-up identification. United States v. Wade, 388 U.S. 218, 240, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Hawkins v. United States, 137 U.S.App.D.C. 103, 420 F.2d 1306 (1969). The on-the-scene observation by Mahoney was based upon substantial opportunity for observation, and the testimony concerning the resulting identification was unequivocal. In addition, the lineup was arranged within hours after the robbery and there is nothing to suggest that it was a significant factor for the in-court identification, or that both the in-court and line-up identifications were" }, { "docid": "3604673", "title": "", "text": "eyewitness testimony is through cross-examination. The credibility of witnesses’ subsequent identifications can be weighed by the jury in light of the witnesses’ statements as to their reactions to television or newspaper pictures. The danger that the jury may give undue weight to eyewitnesses’ testimony can be further guarded against by appropriate jury instructions. The judgment of the district court will be affirmed. . The distinction between in-eourt identifications and at-trial testimony about prior photograph identifications was necessary because of our holding in Zeiler I, 427 F.2d at 1307-1308. There we applied the per se rule of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) — barring testimony about line-up identifications held without counsel — to at-trial testimony about prior identifications at photograph displays held without counsel. We further noted, however, that in-court identifications were permissible under Wade if the Government established by “clear and convincing evidence” that the witnesses were not influenced by the prior identifications. We reversed our holding in Zeiler I in United States ex rel. Reed v. Anderson, 461 F.2d 739 (3rd Cir. 1972), but we need not consider the effect of that reversal on the present case because witnesses were limited at the Bloomfield robbery retrial to in-court identifications. . In fact, Federal Department of Justice regulations discourage pretrial pictures of suspects. It is Department policy that its personnel: should take no action to encourage or assist news media in photographing or televising a defendant or accused person being held or transported in federal custody. . In tlie present ease, no reference by either party to the witnesses’ media viewings was made at trial, either on direct or cross-examination. The trial judge would not permit the Government to introduce evidence about the photograph or line-up identifications. Counsel for the defendant was not prevented from cross-examining the witnesses about the lineup, the photograph display or the media viewings. Had defense counsel wished to attack the credibility of the in-court identifications on the basis of these previous identifications, he could have done so. . In United States v. Barber, 442 F.2d 517," }, { "docid": "22850295", "title": "", "text": "be allowed into evidence even if the identification was made pursuant to an unnecessarily suggestive procedure.” Id. The factors we consider in deciding whether in-court identification testimony is sufficiently reliable are: (1) the witness’s opportunity to view the defendant at the time of the incident; (2) the witness’s degree of attention; (3) the accuracy of the witness’s prior description of the defendant; (4) the level of certainty demonstrated by the witness at the time of the identification procedure; and (5) the length of time between the incident and the identification. See Biggers, 409 U.S. at 199-200, 93 S.Ct. 375; United States v. Jones, 84 F.3d 1206, 1209-10 (9th Cir.), cert. denied, — U.S. —, 117 S.Ct. 405, 136 L.Ed.2d 319 (1996). Blondín had ample opportunity to view Montgomery at the time Montgomery purchased the red phosphorous. Furthermore, because the large order for a key methamphetamine ingredient raised Blondin’s suspicions, he made a point of gaining a detailed description of the purchaser. This description was later recorded by Blondín and faxed to the RCMP. The district court found that this description was “accurate.” One year later, when presented with photos of Marks, McClain, and Montgomery, Blondín was able to make a positive identification of Montgomery as the purchaser. We conclude that Blondin’s in-court identification of Montgomery was sufficiently reliable as a matter of law, based on the factors set out in Biggers. See 409 U.S. at 199-200, 93 S.Ct. 375. Thus, the admission of Blon-diris in-eourt identification testimony was not a violation of due process. The unnecessarily suggestive pretrial identification procedures did not create a “substantial likelihood of irreparable misidentification.” Simmons, 390 U.S. at 384, 88 S.Ct. 967. IV Montgomery also contends that the fact that the DEA agent granted Blondin’s request to take him to the courtroom to confirm the witness’s initial photo identification of Montgomery violated his right to counsel. He argues that the right to counsel at a post-indictment lineup also applies to the eyewitness’s observation of Montgomery in the courtroom the day before the witness was scheduled to testify. Montgomery’s argument can be summarized in this syllogism:" }, { "docid": "22311817", "title": "", "text": "261 (3d Cir.1991), cert. denied, 503 U.S. 988, 112 S.Ct. 1679, 118 L.Ed.2d 396 (1992), Murray argues again on appeal that his picture was “so different from the rest that it suggests culpability.” Brief for Appellants at 23. Thus, he contends, the pre-trial identification procedure was so flawed as to taint any later in-court identification. Eyewitness identification at trial following an earlier pretrial photographic identification is permissible unless the photo lineup procedure is “‘so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.’” Hughes, 716 F.2d at 241 (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968)). Murray points to nothing indicating the photo line-up was unduly suggestive. Murray does not specify what distinguishes his photo from the others in the line-up, other than to state that he “most closely fit” Sanders’ “general description of a black male in his twenties or thirties, light-skinned, rough complexion, clean-shaven, with a baseball cap.” Brief for Appellants at 23. Murray does not explain what so distinguishes his photograph from the others and has raised no other issue indicating a substantial likelihood of irreparable misidentification. Thus, his generalized assignment of error and lack of record support prevents us from finding any abuse of discretion by the district court. As to the in-eourt identifications by Susan McDaniel and Jerry Cotton, respectively a credit union employee and a customer, Murray argues that the identifications were tainted because, prior to their testimony, the Government allowed these witnesses to enter the courtroom and see Murray seated at the defense table with his counsel during a break in the trial. Extrapolating from Reese, he argues that because unar-ranged pre-trial confrontations between a victim and the defendant are not unduly suggestive, 946 F.2d at 261, the “pre-trial identification” arranged by the Government here was necessarily so. We decline to adopt Murray’s proposed per se rule that a confrontation arranged by the government is unduly suggestive. In Code v. Montgomery, 725 F.2d 1316 (11th Cir.1984), the prosecution did not conduct a pretrial lineup, the defendant was placed at" }, { "docid": "22311818", "title": "", "text": "distinguishes his photograph from the others and has raised no other issue indicating a substantial likelihood of irreparable misidentification. Thus, his generalized assignment of error and lack of record support prevents us from finding any abuse of discretion by the district court. As to the in-eourt identifications by Susan McDaniel and Jerry Cotton, respectively a credit union employee and a customer, Murray argues that the identifications were tainted because, prior to their testimony, the Government allowed these witnesses to enter the courtroom and see Murray seated at the defense table with his counsel during a break in the trial. Extrapolating from Reese, he argues that because unar-ranged pre-trial confrontations between a victim and the defendant are not unduly suggestive, 946 F.2d at 261, the “pre-trial identification” arranged by the Government here was necessarily so. We decline to adopt Murray’s proposed per se rule that a confrontation arranged by the government is unduly suggestive. In Code v. Montgomery, 725 F.2d 1316 (11th Cir.1984), the prosecution did not conduct a pretrial lineup, the defendant was placed at the defense table while prosecution witnesses were present, and, unlike in Murray’s trial, the witnesses were not sequestered and one witness was present when the defendant was identified by another eyewitness. The court, relying on each witness’s opportunity to view the defendant during the robbery, upheld the in-court identifications, holding that under the totality of the circumstances the witnesses’ identification of the defendant “carried with it no Very substantial likelihood of misidentification.’” Id. at 1320 (quoting Simmons, 390 U.S. at 384, 88 5.Ct. at 971). Based on the totality of the circumstances, we agree that although the Government allowed the witnesses to see Murray seated at the defense table prior to their testimony, it did not create a substantial likelihood of irreparable misidentification. Both witnesses would have seen Murray at the defense table immediately before testifying. The fact that they may have seen him at the defense table earlier in the day does not diminish the reliability of their in-court identification based upon their clear recollection of Murray during the robbery. On the day of" }, { "docid": "7624988", "title": "", "text": "misidentification inherent in pre-trial examination of photographs, just as there are dangers of misidentification from line-ups. When prejudicial photographic procedures focusing on a particular suspect are used, the possibilities of misidentification are increased. The Supreme Court did not, however, prescribe a prophylactic rule excluding all in-court identifications based on pre-trial identifications which were not absolutely proper. In Simmons the Court said that “each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so imper-missibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification”. 390 U.S. at 384, 88 S.Ct. at 971. See also United States v. Conway, 415 F.2d 158 (3d Cir. 1969). Although the photographs selected by the FBI in its investigation may have tended to focus on Wiggins by including too few suspects without mustaches, there are sufficient circumstances in this case from which we conclude that the procedure did not lead to “misidentification”. Cf. United States ex rel. Rutherford v. Deegan, 406 F.2d 217 (2d Cir. 1969). As in the bank robbery in Simmons, this robbery was conducted during the day in an adequately lighted bank. Mrs. Dempsey had sufficient opportunity to observe Wiggins, who was approximately three feet away from her. She made a positive identification from the photographs which were presented to her three days after the robbery, and another positive identification at trial. When she was shown the pictures, the bank robbers had not been arrested and the urgency regarding apprehension was similar to that in Simmons. She also identified Wiggins at the police station. Although the photographs may have highlighted the defendant because he did not have a mustache, there is nothing in the record to indicate that Mrs. Dempsey had previously described the hold-up man \"as having a mustache. There is also here, as in Simmons, other evidence incriminating the defendant. For example, two witnesses placed him in the robbery vehicle shortly before the offense. If Wiggins’ counsel considered him" }, { "docid": "23383962", "title": "", "text": "finding that although the in-court identification procedure may have been suggestive or tainted, it was not so impermissibly suggestive as to lead to a likelihood of irreparable misidentification. See Rogers, 73 F.3d at 778 (holding no due process violation where counsel attacked the reliability and credibility of the identification during cross-examination and the testimony of two other witnesses identified the defendant); Murdock, 928 F.2d at 297 (holding no due process violation where defendant did not request special seating or object to the racial composition of the courtroom, the identifications were open to attack on cross-examination, and the identifications were reliable under the totality of the circumstances). We agree with the Ninth Circuit’s assessment that “[t]here is no constitutional entitlement to an in-court line-up or other particular methods of lessening the suggestiveness of in-court identification, such as seating the defendant elsewhere in the room. These are matters within the discretion of the court.” United States v. Domino, 784 F.2d 1361, 1369 (9th Cir.1986), cert. denied, 479 U.S. 1038, 107 S.Ct. 893, 93 L.Ed.2d 845 (1987). In this case, Davis made a specific objection to the racial composition of the courtroom and requested that he not be seated at counsel table during the identification procedures. The district court denied the request, concluding that the defendant was adequately protected by cross-examination. The district court did not abuse its discretion because our review of the record convinces us that the government’s questions were not suggestive, the witness’s in-court identification was vigorously attacked on cross-examination, and more importantly, other circumstances indicate that the witness’s testimony was reliable enough to be presented to the jury- On the day of the crime, Mr. Coats had observed a man running away from the direction of the 42nd Street Mid City Bank and toward his car as he was stopped at a street light. Mr. Coats viewed him with a good degree of attention and continued to watch him through the rearview mirror until he was out of sight, because of his unusual behavior. Within a few days after the crime, Mr. Coats provided a detañed description of the" }, { "docid": "14647017", "title": "", "text": "the trial. He complains that like the showing of his teeth, the absence of other black people in the courtroom was overly suggestive and created a substantial likelihood of misidentification in violation of his due process rights. We reject this argument as well. Certainly, identifying the Defendant as the robber, when the robber was a black man and Defendant was the only black man in the courtroom, might be somewhat suggestive, but it is not unconstitutionally so. See United States v. Davis, 103 F.3d 660, 670 (8th Cir.1996) (rejecting a due process challenge when the defendant was the only black man seated at defense counsel’s table, and the only other black man present was seated in the back of the courtroom); cf. Romero v. Tansy, 46 F.3d 1024, 1031-32 (10th Cir.1995) (rejecting, in a habeas corpus proceeding, the defendant’s argument that an in-court identification procedure was unduly suggestive when the defendant was the only young Hispanic male seated before the bar). Moreover, “[t]here is no constitutional entitlement to an in-court line-up or other particular methods of lessening the suggestiveness of in-court identification, such as seating the defendant elsewhere in the room. These are matters within the discretion of the court.” United States v. Domina, 784 F.2d 1361, 1369 (9th Cir.1986). Finally, “where the circumstances of either a pretrial or an at-trial identification are suggestive, reliability is the linchpin for determining admissibility. Even an identification at trial under circumstances that are tantamount to a show-up is not per se inadmissible, but rather depends upon the totality of the circumstances.” United States v. Matthews, 20 F.3d 538, 547 (2d Cir.1994) (internal quotation marks and citations omitted). Given the evidence against Defendant in this case — including the videotapes of four of the robberies and Melissa Gibson’s testimony that it was “[wjithout a doubt” Defendant who had robbed her store — we find that the identification of Defendant, despite his presence as the only black man in the courtroom, was sufficiently reliable and not so suggestive as to constitute a due process violation. II. THE GOVERNMENT’S DECISION TO PURSUE FEDERAL CHARGES AGAINST DEFENDANT" }, { "docid": "22850296", "title": "", "text": "court found that this description was “accurate.” One year later, when presented with photos of Marks, McClain, and Montgomery, Blondín was able to make a positive identification of Montgomery as the purchaser. We conclude that Blondin’s in-court identification of Montgomery was sufficiently reliable as a matter of law, based on the factors set out in Biggers. See 409 U.S. at 199-200, 93 S.Ct. 375. Thus, the admission of Blon-diris in-eourt identification testimony was not a violation of due process. The unnecessarily suggestive pretrial identification procedures did not create a “substantial likelihood of irreparable misidentification.” Simmons, 390 U.S. at 384, 88 S.Ct. 967. IV Montgomery also contends that the fact that the DEA agent granted Blondin’s request to take him to the courtroom to confirm the witness’s initial photo identification of Montgomery violated his right to counsel. He argues that the right to counsel at a post-indictment lineup also applies to the eyewitness’s observation of Montgomery in the courtroom the day before the witness was scheduled to testify. Montgomery’s argument can be summarized in this syllogism: A defendant is entitled to counsel at a post-indictment lineup or show up. The police permitted an identification witness to see Montgomery in the courtroom without notifying his attorney the day before the witness testified. Therefore, Montgomery was deprived of his right to counsel at a critical stage of the criminal proceedings against him. Montgomery has confused the adversarial confrontation that occurs when a defendant is compelled to participate in a police lineup or show up with the surreptitious observation of the defendant in the courtroom by an identification witness the day prior to his testimony. In United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973), the Supreme Court summarized the decisions interpreting the Sixth Amendment’s guarantee of a right to counsel. The Court stated that “the core purpose of the counsel guarantee was to assure ‘Assistance’ at trial, when the accused was confronted with both the intricacies of the law and the advocacy of the public prosecutor.” Id. at 309, 93 S.Ct. 2568. The Court instructed that the right" }, { "docid": "4150427", "title": "", "text": "of irreparable misidentification, we conclude that admission of the identification testimony of Guerin and Kotzen was error. The government concedes that if the pretrial procedures undertaken as to any one of the three witness es were unconstitutionally suggestive, the conviction must be reversed. We agree as we cannot say that any such error was harmless when we do not know which witness the jury may have believed. Accordingly, Field’s conviction must be reversed. We do not reach the question of whether the same result obtains as to Jacobson. Admittedly, the reliability of her identification is a close question. She had an excellent opportunity to view the bank robber, being only two to three feet away from him for a full minute. Moreover, Jacobson testified that she was highly attentive — that she “stared” at him throughout the minute that he stood before her. Such an opportunity to observe the criminal, coupled with such close attentiveness, would normally evince highly reliable identification testimony. However, the remaining three reliability factors detract somewhat from the trustworthiness of Jacobson’s identification. Although she did not record a detailed post-robbery description of the criminal, Jacobson did state that he was of Mexican extraction. Field is not. Jacobson testified that she changed her mind about the robber being Hispanic when she saw Field in the courtroom. Jacobson also displayed no certainty of identification when she was shown the photo spread prior to trial. Although the robbery had occurred only nine days earlier, she was unable at that time to make any positive identification. Her first sure identification occurred at trial, approximately two months after the robbery. An examination of the totality of the surrounding circumstances further detracts from the reliability of Jacobson’s testimony. Jacobson, who normally wears glasses, was not wearing them at the time of the robbery. Jacobson also saw Field handcuffed prior to trial. One week after the robbery, Jacobson was told by an officer of the bank that suspects had been arrested. After her inconclusive view of the photo spread, but before her in-court identification of Field, Jacobson was in the presence of the" }, { "docid": "23307087", "title": "", "text": "make his or her selection varied from a few seconds to several minutes. Of course with respect to those witnesses who indicated some uncertainty, that fact was brought out both at the suppression hearing and at trial. On balance, we must conclude that this factor weighs in the government’s favor on some witnesses and very slightly in the defendant’s favor as to others. Finally, the time between the crimes and the presentation of the photo arrays varied from about three weeks to almost three months. Three months is not an extremely long time however, and we conclude that this factor weighs in favor of the reliability of the identifications, but only slightly so. See Archuleta v. Kerby, 864 F.2d 709, 712 (10th Cir.1989) (collecting cases, including cases where time intervals of several months were found not to be so long as to cast doubt on the reliability of the identifications). On the whole, we conclude that the pretrial identifications were not so impermis-sibly tainted by the suggestiveness of the photo array and the circumstances of its presentation that use of the identification evidence infringed on due process rights. “Even if an identification procedure is suggestive, the introduction of the identification evidence does not necessarily violate a defendant’s due process rights.” Archuleta v. Kerby, 864 F.2d at 711. Accordingly, we hold that defendant’s due process rights were not infringed by the admission of testimony concerning the pretrial identifications at trial. As to the identifications by the witnesses at trial, defendant argues that the suggestiveness of the pretrial identifications tainted the in-court identifications. Because we have held that the pretrial identification procedures were not so suggestive as to undermine the reliability of the identifications, we must reject the attack on the trial identifications here; in view of the conclusions we have stated, the suggestiveness in the courtroom identification procedure was a matter for the jury in weighing the witness’s testimony. See Romero v. Tansy, 46 F.3d 1024, 1032 (10th Cir.1995). We hold that there was no error in the admission of the identification testimony. y Wiseman contends that the district court abused" }, { "docid": "8765859", "title": "", "text": "testified for the prosecution and identified Barron at trial as the front door robber. Their participation in various pretrial identification procedures was elicited on cross-examination. These procedures included a prein-dictment lineup, a 25-photo spread of surveillance pictures, a six-photo spread, and pictures of the lineup. Only two of the prosecution witnesses had attended the lineup, and both identified Barron at that time as well as at the trial. Most of the photographic identifications occurred within a few weeks after the lineup, with two exceptions. One of the lineup viewers was shown the six-picture spread a week before trial, and one witness made his identification before the lineup. The seven prosecution witnesses based their in-court identifications of Barron on their recollections of the robbery. During extensive cross-examination the defense counsel brought out some inconsistencies in the witnesses’ testimony, but he was unable to diminish the certainty with which they made their identifications. Four other eye-witnesses testified for Barron. Despite the suggestiveness which the appellant claims tainted the lineup, these four witnesses had been unable to identify Barron at the lineup. However, one of them made a positive identification of Barron at trial, where she was able to see him better. Barron points to several ways in which the pretrial identifications were suggestive: 1) he was the only participant in the lineup with a big nose; 2) only one of the 25 surveillance pictures displayed the victim bank in the background; 3) some witnesses viewed the allegedly suggestive surveillance photo-spread before viewing the pictures of the lineup, thus tainting their selections; 4) some witnesses who made identifications from the lineup pictures were aware that other witnesses had made a positive identification at the lineup; 5) one witness received non-verbal approval after his identification and another was told that she had made the correct selection. In Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968), the Supreme Court stated: [W]e hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph" }, { "docid": "23307088", "title": "", "text": "its presentation that use of the identification evidence infringed on due process rights. “Even if an identification procedure is suggestive, the introduction of the identification evidence does not necessarily violate a defendant’s due process rights.” Archuleta v. Kerby, 864 F.2d at 711. Accordingly, we hold that defendant’s due process rights were not infringed by the admission of testimony concerning the pretrial identifications at trial. As to the identifications by the witnesses at trial, defendant argues that the suggestiveness of the pretrial identifications tainted the in-court identifications. Because we have held that the pretrial identification procedures were not so suggestive as to undermine the reliability of the identifications, we must reject the attack on the trial identifications here; in view of the conclusions we have stated, the suggestiveness in the courtroom identification procedure was a matter for the jury in weighing the witness’s testimony. See Romero v. Tansy, 46 F.3d 1024, 1032 (10th Cir.1995). We hold that there was no error in the admission of the identification testimony. y Wiseman contends that the district court abused its discretion in denying his motion to sever Counts 3 and 4 from the other counts. We agree that the decision whether to sever counts of an indictment for separate trial is a matter committed to the sound discretion of the trial court. E.g., United States v. Cox, 934 F.2d 1114, 1119 (10th Cir.1991). Moreover, this is an area in which the trial judge’s discretion is very broad. Thus, we will not reverse absent a strong showing of prejudice, which means that “[defendant's burden to show an abuse of discretion is a difficult one.” Id. We conclude that this burden has not been met here. Wiseman argues that the government’s evidence was strongest on Counts 3 and 4 and that this created an intolerable risk that the jury would be swayed to convict also on the “weaker” counts. Defendant specifically asserts that the evidence was “exceptionally weak” .as to counts 1, 2, 5, and 6, and refers to the section of his brief in which he challenges the sufficiency of the evidence to support all" }, { "docid": "11342170", "title": "", "text": "lead us to the conclusion that its composition was not unduly suggestive. As the Supreme Court stated in Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977): “[Reliability is the linchpin in determining the admissibility of identification testimony.” Thus even were the identification procedures found unduly suggestive, the testimony of the Home Savings Association employees at the trial might still be admissible. See United States v. Anderson, 618 F.2d 487, 491-92 (8th Cir.1980); United States v. Mears, 614 F.2d 1175, 1177 (8th Cir.) cert. denied, 446 U.S. 945, 100 S.Ct. 2174, 64 L.Ed.2d 801 (1980). The factors to be considered in determining reliability “include the opportunity of the witness to view the criminal at the time of the crime, the witness’s degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.” Manson v. Brathwaite, supra, 432 U.S. at 114, 97 S.Ct. at 2253. The robbery took three to four minutes, during which time the witnesses’ attention was obviously focused upon the perpetrators of the crime. Employee Cunningham, prior to viewing the photo display, had provided the police with a fairly accurate description of the robbers, although she had tended to confuse the apparel worn by the two. The photo display took place the day after the crime. The lineup was presented a few days later. Each of the witnesses identified Cloyd with a high degree of certainty. Furthermore, even though defense counsel extensively cross-examined the witnesses regarding the effect of the identification procedures, they testified that their identifications were made on the basis of their recollection of the events occurring on November 2. Given the totality of the circumstances, the identification procedures cannot be found to have produced unreliable in-court identifications. Due process therefore did not require exclusion of the identification testimony. Defense counsel extensively cross-examined the witnesses, and the jury had the opportunity to decide whether the pretrial identification procedures should mitigate the weight to be accorded the identification testimony. Defendants do not question" }, { "docid": "14647016", "title": "", "text": "the cap and dark glasses that had been worn by the bank robber in that case. Id. at 1322. We found that such an identification procedure was not unduly suggestive, nor did it create a substantial likelihood of misidentification. Id. at 1323. Therefore, the validity of the identification was properly left to the jury. Id. “ ‘[Generally, the question of the suggestiveness or credibility of the in-court identification is to be resolved ultimately by the jury after the defendant has had an opportunity to test the accuracy of an identification through cross-examination.’ ” Id. (quoting United States v. Davies, 768 F.2d 893, 904 (7th Cir.1985)). In the instant case, Defendant’s displaying of his teeth simply allowed the jury to make its own comparison between the description given by the two witnesses and Defendant’s actual appearance. We find nothing unduly suggestive about that procedure and conclude that it did not violate Defendant’s due process rights. The second identification procedure about which Defendant complains is his being the only black person in the courtroom for most of the trial. He complains that like the showing of his teeth, the absence of other black people in the courtroom was overly suggestive and created a substantial likelihood of misidentification in violation of his due process rights. We reject this argument as well. Certainly, identifying the Defendant as the robber, when the robber was a black man and Defendant was the only black man in the courtroom, might be somewhat suggestive, but it is not unconstitutionally so. See United States v. Davis, 103 F.3d 660, 670 (8th Cir.1996) (rejecting a due process challenge when the defendant was the only black man seated at defense counsel’s table, and the only other black man present was seated in the back of the courtroom); cf. Romero v. Tansy, 46 F.3d 1024, 1031-32 (10th Cir.1995) (rejecting, in a habeas corpus proceeding, the defendant’s argument that an in-court identification procedure was unduly suggestive when the defendant was the only young Hispanic male seated before the bar). Moreover, “[t]here is no constitutional entitlement to an in-court line-up or other particular methods" }, { "docid": "23383963", "title": "", "text": "this case, Davis made a specific objection to the racial composition of the courtroom and requested that he not be seated at counsel table during the identification procedures. The district court denied the request, concluding that the defendant was adequately protected by cross-examination. The district court did not abuse its discretion because our review of the record convinces us that the government’s questions were not suggestive, the witness’s in-court identification was vigorously attacked on cross-examination, and more importantly, other circumstances indicate that the witness’s testimony was reliable enough to be presented to the jury- On the day of the crime, Mr. Coats had observed a man running away from the direction of the 42nd Street Mid City Bank and toward his car as he was stopped at a street light. Mr. Coats viewed him with a good degree of attention and continued to watch him through the rearview mirror until he was out of sight, because of his unusual behavior. Within a few days after the crime, Mr. Coats provided a detañed description of the man he saw running by his car. Coats also chose Davis out of a pretrial lineup, identifying Davis with a “strong probability” or an “80 to 90 percent probability” of being the person he saw running from the 42nd Street Mid City bank after the robbery. (Trial Tr. at 632, 654.) The district court found that the lineup procedure was not suggestive (the witnesses reviewed the lineup separately and were advised that there was no obligation to choose anyone), and Davis does not chaUenge the reliability of the lineup in this appeal. Rita Kuchcinski, another eye witness, also identified Davis through out-of-court procedures that were determined not to be suggestive in any way. Thus, this case did not rest solely on the reliability of Mr. Coats’ in-court identification, and given the total circumstances, the arguably suggestive nature of the in-eourt identification was not so impermissibly suggestive as to create “a very substantial likelihood of irreparable misidentification.” Simmons, 390 U.S. at 384, 88 S.Ct. at 971. “We are content to rely upon the good sense and" } ]

[ { "docid": "11251380", "title": "", "text": "v. Sowa & Sons, 725 F.2d 1350 (Fed.Cir.) cert. denied, — U.S. -, 105 S.Ct. 95, 83 L.Ed.2d 41 (1984). We have also assumed jurisdiction of an appeal from a summary judgment involving an antitrust claim only, where two patent infringement counts remained to be adjudicated in district court, Albert v. Kevex Corp., 729 F.2d 757, 221 USPQ 202 (Fed.Cir.1984). Similarly, we have heard separately filed trademark and patent appeals taken from the same judgment below, Bandag, Inc. v. Al Bolser’s Tire Stores, 750 F.2d 903, 223 USPQ 982 (Fed.Cir.1984). However, the previously cited cases, as well as Atari, involved either present or potential patent issues. By contrast, in the instant appeal, all § 1338 patent claims have been finally adjudicated and there is no possibility that these claims will be reopened in the ultimate resolution of this extended litigation. Policies of judicial efficiency favor transferring the appeal to the Seventh Circuit. This case has already been before the Seventh Circuit twice on appeal with many of the underlying issues fully briefed by the parties to that court. Additionally, it is noted that there is no scintilla of evidence in this appeal of an attempt by any of the parties to manipulate proceedings before the district court to either invoke or avoid the jurisdiction of this court. The severance of the anti-trust claims which are the subject of this appeal, from the patent issues occurred at a time well in advance of this court’s existence. Therefore, it could not have been motivated by any scheme to manipulate future appellate jurisdiction. Thus, our action in transferring this appeal to the Seventh Circuit must not be viewed as indicating how we will rule in future cases, for the circumstances that here prevail may well not recur. At issue in the judgment presently on appeal is the district court’s application of Rule 13(a) to bar USM’s antitrust claim as a compulsory counterclaim, and its finding that res judicata likewise bars this claim. Because this appeal is wholly devoid of issues under § 1338, present or potential, and judicial efficiency favors resolution by the" } ]

[ { "docid": "2358799", "title": "", "text": "the time the stay order issued, Korody simply forgot about its antitrust action. Neither before nor after the stay did Korody indicate (until June 1986) any intent to present a “Walker Process” antitrust claim. It cannot now seize upon the stay as basis for excusing its slumber and its failure to amend its pleadings for more than four years. (2) Relation Back Korody says its amendment asserting a “Walker Process” claim relates back to its original complaint asserting a tie-in. A mere comparison of the two complaints totally undermines Korody’s position. Under Rule 15(c), Fed.R.Civ.P. an amendment may relate back when the earlier complaint gave adequate notice of the new claim. Besig v. Dolphin Boating & Swimming Club, 683 F.2d 1271, 1278 (9th Cir.1982). Korody’s earlier complaint asserted a single act allegedly violative of the antitrust laws; i.e., a tie-in. That complaint dealt solely with unpatented parts and Korody’s alleged inability to obtain them during the four months in which GM conducted its “kit” marketing program. Korody’s amendment asserted an entirely different act allegedly violative of the antitrust laws; i.e., enforcement of a fraudulently procured patent. It dealt with patented parts and Korody’s alleged inability to make, use, or sell them during a period of years. Because Korody’s amendment asserts an entirely new claim for relief based upon different facts it does not relate back. See Fuller v. Marx, 724 F.2d 717 (8th Cir.1984); Besig, 683 F.2d at 1271; National Distillers & Chemical Corp. v. Brad's Machine Products, Inc., 666 F.2d 492 (11th Cir.1982). Korody offers two disingenuous arguments in support of its “relation back” position: its original complaint included the catchall and meaningless phrase, “among other things”; and its amendment is merely a “more detailed” statement of its original complaint. The first would undermine the notice pleading approach of the Federal Rules of Civil Procedure. See 5 C. Wright & A. Miller, Federal Practice and Procedure, § 1215 (1969) and cases at 110 n. 61. “Among other things” could not possibly give GM fair notice of Korody’s “Walker Process” claim or of any other claim, and to so hold" }, { "docid": "2358801", "title": "", "text": "would eviscerate Rule 15(c) and its statute of limitations protection. Korody’s second argument is simply untrue. The amendment alleges that GM fraudulently procured the patent, enforced it in bad faith, interfered with Korody’s purchase of the patented product, and falsely marked its patented pistons. Those assertions can hardly be deemed a “merely more detailed” statement of a claim that GM is guilty of tying unpatented parts. Korody builds at most a colorable argument around its citation of Clipper Exxpress v. Rocky Mountain Motor Tariff Bureau, Inc., 690 F.2d 1240 (9th Cir.1982), cert. denied, 459 U.S. 1227, 103 S.Ct. 1234, 75 L.Ed.2d 468 (1983), and Rohm and Haas Co. v. Dawson Chemical Co., 557 F.Supp. 739, 217 USPQ 515 (S.D.Tex.1982), rev’d on other grounds, 722 F.2d 1556, 220 USPQ 289 (Fed.Cir.1983), cert. denied, 469 U.S. 851, 105 S.Ct. 172, 83 L.Ed.2d 107 (1984), but its reliance on those authorities is misplaced. In those cases, the original and later claims related to the same act and put the opposite party on full notice of the charge. Korody’s assertion that its original complaint put GM on notice that Korody was asserting both tying and enforcement-of-a-fraudulently-obtained-patent claims came as a surprise not only to GM, but to the district court, who said: Remember this is a case I have been working on for a long, long time and it would never have occurred to me that there is [in the original complaint] an antitrust violation based on the way they use the patent. Korody’s decision to press its unsupportable “relation back” arguments on appeal come as an equal surprise to us, particularly in view of Judge Pfaelzer’s conclusion 6: 6. Korody’s amended Walker Process claims do not relate back under Rule 15(c) of the Federal Rules of Civil Procedure because these amendments state a wholly new cause of action based on entirely different events and seek damages completely different from those originally sought. (3) Concealment Korody says GM concealed until 1983 the “(Jutland Document”, a report of GM’s patent counsel listing five patents and calling them “the closest prior art”. Until it had seen" }, { "docid": "2358796", "title": "", "text": "Court any basis whatever for failure to amend its complaint because of the stay. It admits that its antitrust counsel “withdrew” when the stay was entered, to return to the fray only after the trial and appeal were completed in the patent validity case. It states the obvious, i.e., that the parties “understood” that the stipulated order “stayed the antitrust claim”, and implies that it was thereby precluded or excused from amending its antitrust claim. The argument slides over what was stayed, i.e., discovery on Korody’s tie-in claim, the only antitrust claim then extant. Korody’s argument also disingenuously disregards Judge Pfaelzer’s clear explanation at the hearing: THE COURT: I never — just so that you can add to your argument — the Court never kept them from amending any pleading on any ground whatsoever. [COUNSEL FOR GM]: Absolutely not. THE COURT: I don’t have any order in that file that said that. It also disregards this in the district court’s finding 11 and conclusion 7: 11. At no time did the Court’s order preclude Korody from amending or seeking to amend its antitrust complaint. 7. The statute of limitations was not equitably tolled under the Court’s July 21, 1982 Order, because that Order did not preclude amendment of the Complaint to add Walker Process claims. It also disregards this colloquoy at the hearing: [COUNSEL FOR KORODY]: Yes, your Honor. While this Court was working on that [the related patent validity case] the antitrust attorneys were out of the court, in fact. THE COURT: They were only out of the Court in the sense that we delayed the trial of the tie-in case. Nobody ever told anybody on Korody-Colyer’s side that they could not amend the pleadings. [COUNSEL FOR KORODY]: Indeed. THE COURT: Never. [COUNSEL FOR KORODY]: I agree____ THE COURT: If you want a Walker Process claim you have to plead it. Korody’s reply brief offers an after-the-fact interpretation of its counsel’s acknowledgement, saying the parties’ “understanding” was not limited to the language of the order (which literally stayed only discovery). Yet Korody points to absolutely no evidence indicating any" }, { "docid": "2358810", "title": "", "text": "suit constituted a continuing violation. The Ninth Circuit, whose antitrust rulings are followed by this court in appeals from judgments of district courts of that circuit, see Loctite Corp. v. Ultraseal Ltd., 781 F.2d 861, 875, 228 USPQ 90, 99 (Fed.Cir.1985), rejected Korody’s continuing violation argument in Pace Industries, Inc. v. Three Phoenix Co., 813 F.2d 234 (9th Cir.1987), a case involving a fact pattern substantially identical (Korody admits it is “facially similar”) in relation to the issue here. In Pace, the court said: T%e initiation of a lawsuit is the final, immutable act of enforcement of an allegedly illegal contract. At that point in time the lawsuit assumes an existence separate from the contract. All subsequent acts are controlled by the exigencies of litigation, not enforcement of the contract. The complaint puts the aggrieved party on notice that there is a possible antitrust violation. In every lawsuit, a party has a right, and an attorney has a duty, to prosecute or defend vigorously. Furthermore, no new injury results from the act of appealing that the defendant does not already endure as a result of the act of filing the action initially. This is true because the reasonable expectation from the commencement of a law suit is that the plaintiff will pursue the litigation until it prevails or the last appeal is exhausted. ****** We hold that the last overt act in the enforcement of this contract was the initiation of the lawsuit in state court. Any injury to Pace resulting from continued prosecution through the normal course of the appellate process related back to the initial decision to file. Id. at 238-39 (citations omitted; emphasis added.) Korody has shown no error in conclusions 4 and 9 of Judge Pfaelzer: 4. GM’s last overt act to “enforce” its Hulsing patent, its April 13, 1981 letter to Korody, was more than four years prior to the filing of Korody’s Second Supplemental and Amended Complaint. ****** 9. Because the last overt act taken by GM in defense of its Hulsing patent was more than four years before Korody filed its amendment to" }, { "docid": "2358798", "title": "", "text": "“understanding” of GM that Korody was precluded from adding its “Walker Process” claim to its pleadings. Nowhere does Korody explain its failure even to seek leave of court to amend. Korody also unfairly accuses Judge Pfaelzer of making a post hoc interpretation of the stay when she said the order stayed “only the antitrust action that was there.” Nowhere does Korody explain how a claim that had not been made could have been stayed. Korody’s reliance on Mt. Hood Stages, Inc. v. Greyhound Corp., 616 F.2d 394 (9th Cir.), cert. denied, 449 U.S. 831, 101 S.Ct. 99, 66 L.Ed.2d 36 (1980), is misplaced. In that case, the court was accommodating enforcement of the Sherman and Interstate Commerce Acts and the factual issues in the antitrust action were raised in the required preliminary administative ICC proceeding. Here the doctrine of primary jurisdiction is absent and the factual and legal issues raised by Korody’s “Walker Process” could have been fully presented and decided by . the district court. On the entire record, it is clear that, from the time the stay order issued, Korody simply forgot about its antitrust action. Neither before nor after the stay did Korody indicate (until June 1986) any intent to present a “Walker Process” antitrust claim. It cannot now seize upon the stay as basis for excusing its slumber and its failure to amend its pleadings for more than four years. (2) Relation Back Korody says its amendment asserting a “Walker Process” claim relates back to its original complaint asserting a tie-in. A mere comparison of the two complaints totally undermines Korody’s position. Under Rule 15(c), Fed.R.Civ.P. an amendment may relate back when the earlier complaint gave adequate notice of the new claim. Besig v. Dolphin Boating & Swimming Club, 683 F.2d 1271, 1278 (9th Cir.1982). Korody’s earlier complaint asserted a single act allegedly violative of the antitrust laws; i.e., a tie-in. That complaint dealt solely with unpatented parts and Korody’s alleged inability to obtain them during the four months in which GM conducted its “kit” marketing program. Korody’s amendment asserted an entirely different act allegedly violative" }, { "docid": "2358817", "title": "", "text": "be read in light of the analysis in both Walker Process and Handgards. The appealed judgment of the district court, and its affirmance here, deal only with the statute of limitations; neither may be read as condoning the type of conduct alleged by Korody. . The complaint contained the usual allegations of monopoly, etc., but the only act charged was a tie-in. . As was well said in Starview Outdoor Theatre, Inc. v. Paramount Film Distributing Corp., 254 F.Supp. 855, 858 (N.D.Ill.1966), “Plaintiffs may not postpone suit until they have all of the information necessary to prove an antitrust violation” when such postponement goes beyond the period of the statute of limitations. Moreover, the Ninth Circuit stated in Rutledge v. Boston Woven Hose and Rubber Co., 576 F.2d 248, 250 (9th Cir.1978) that knowledge that one has a claim is tested on an objective basis (“To avoid the bar of limitation ... plaintiff must allege facts showing affirmative conduct upon the part of the defendant which would ... lead a reasonable person to believe that he did not have a claim for relief.”). As Judge Pfaelzer perceptively observed in this case, \"Is there a patent lawyer alive who doesn’t understand what a Walker Process claim is?” Korody attempts to use the latter statement in support of its argument that GM was on notice that Korody \"had a basis” for a \"Walker Process\" claim, but Korody thereby blurs the distinction between notice of a basis for a claim and the notice with which the statute of limitations deals, i.e., notice of a party’s intent to enforce that claim. . The record contains only the unsubstantiated statement of Korody’s president that there was such a threat in 1983. . Though the distinction is of no moment in this case, Korody’s repeated reference to GM’s \"enforcement” can be misleading. GM’s mandatory counterclaim for infringement was never tried. The trial and appeal dealt only with the validity and enforceability of GM’s patent. . Korody at one point says Pace is \"not inconsistent” with its position, but \"to the extent it might be” it should" }, { "docid": "12658788", "title": "", "text": "one of first impression in this court. Obviously, Atari, which both parties cite in support of their respective positions, does not control here. Indeed, in Atari, we specifically refused to decide jurisdictional issues such as that now before us: Though pressed to do so by some ami-ci, we need not and therefore do not explore or decide questions of this court’s jurisdiction under circumstances not before us, e.g., when: a patent claim has been withdrawn with prejudice ... before a notice of appeal is filed; a patent claim has been dismissed as frivolous and the dismissal is not appealed; ... a complaint has been amended to give the district court jurisdiction in part on § 1338 that it did not have over the original complaint; or similar circumstances that are here hypothetical. Atari, 747 F.2d at 1428, 223 USPQ at 1077-78. Similarly, USM Corp., a case in which we transferred an appeal of a judgment on an antitrust count and upon which Sears relies, involved very special circumstances. As stated therein, the holding “must not be viewed as indicating how we will rule in future cases, for the circumstances that here prevail [creation of the Federal Circuit in 1982 intervened between judgment on, and appeal of, the patent issues and judgment on nonpatent issues] may well not recur.” USM Corp., 770 F.2d at 1037, 226 USPQ at 1040. With respect to other pertinent precedent, the opinion in USM Corp. provides the following analysis: Previously, this court has exercised jurisdiction over an appeal of anti-trust claims joined with patent claims and arising from the same set of facts, American Hoist & Derrick Co. v. Sowa & Sons, 725 F.2d 1350 (Fed.Cir.), cert. denied, [469] U.S. [821], 105 S.Ct. 95, 83 L.Ed.2d 41 (1984). We have also assumed jurisdiction of an appeal from a summary judgment involving an antitrust claim only, where two patent infringement counts remained to be adjudicated in district court, Albert v. Kevex Corp., 729 F.2d 757, 221 USPQ 202 (Fed. Cir.1984). Similarly, we have heard separately filed trademark and patent appeals taken from the same judgment below, Bandag," }, { "docid": "2358811", "title": "", "text": "the defendant does not already endure as a result of the act of filing the action initially. This is true because the reasonable expectation from the commencement of a law suit is that the plaintiff will pursue the litigation until it prevails or the last appeal is exhausted. ****** We hold that the last overt act in the enforcement of this contract was the initiation of the lawsuit in state court. Any injury to Pace resulting from continued prosecution through the normal course of the appellate process related back to the initial decision to file. Id. at 238-39 (citations omitted; emphasis added.) Korody has shown no error in conclusions 4 and 9 of Judge Pfaelzer: 4. GM’s last overt act to “enforce” its Hulsing patent, its April 13, 1981 letter to Korody, was more than four years prior to the filing of Korody’s Second Supplemental and Amended Complaint. ****** 9. Because the last overt act taken by GM in defense of its Hulsing patent was more than four years before Korody filed its amendment to add Walker Process claims, no tolling of the statute of limitations by virtue of a continuing antitrust violation can be established. Thus, Korody’s “continuing violation” argument has no support in fact or law. ATTORNEY FEES Korody’s brief, in places, recognizes that it stipulated to the stay order, and yet, in other places, argues that GM should be estopped to rely on the statute of limitations because GM “actively sought and obtained” the stay. In asserting that GM “sought” the stay, Korody not only ignored its own stipulation (and its assertion elsewhere in its brief that the parties stipulated the stay to conserve resources and judicial economy), but presented a partial and distorted quotation from American Pipe and Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974). Korody’s brief says: The Supreme Court “has not hesitated to find the statutory period tolled or suspended by the conduct of the defendant” where the policies of repose and certainty inherent in the limitations provisions are fulfilled. American Pipe and Construction Co. v. Utah," }, { "docid": "2358792", "title": "", "text": "MARKEY, Chief Judge. Appeal from a partial summary judgment entered pursuant to Rule 54(b) Fed.R. Civ.P. by the United States District Court for the Central District of California (Pfaelzer, J.) and ordering dismissal as untimely certain antitrust claims appearing in a Second Supplemental and Amended Complaint filed by Korody-Colyer Corporation (Korody) against General Motors Corporation (GM). We affirm. BACKGROUND In January 1980, Korody sued GM, seeking a judgment declaring GM’s U.S. Patent No. 3,555,972 invalid. GM counterclaimed for infringement of that patent. In January 1982, Korody answered the counterclaim, alleging inter alia that GM’s charge of infringement was made in bad faith to hamper competition, that the patent was obtained by fraud, that GM knew there was no basis for a valid patent when it filed its application, and that GM knowingly failed to disclose extensive pertinent prior art to the PTO. At the same time, Korody added an antitrust claim alleging an illegal tie-in and demanding á jury trial on that claim. In July 1982, the district court entered a stipulated order staying proceedings on the antitrust claim pending completion of a bench trial of the patent validity issue. Proceedings on GM’s infringement counterclaim were also stayed. On August 10, 1984, Judge Pfaelzer held GM’s patent invalid as fraudulently obtained and for obviousness under 35 U.S.C. § 103. Korody-Colyer Corp. v. General Motors Corp., 224 USPQ 368 (C.D.Cal.1984). On May 2, 1985, this court affirmed. 760 F.2d 1293, 225 USPQ 1099 (Fed.Cir.1985). In June 1986, Korody filed the Second Supplemental and Amended Complaint at issue here. That complaint contained an added claim that GM had violated the antitrust laws by enforcing a knowingly invalid patent fraudulently obtained, a claim designated by all concerned as a “Walker Process” claim. On December 3, 1986, after a hearing, Judge Pfaelzer filed clear, succinct, and complete findings and conclusions and entered her summary judgment of the same date, holding that Korody’s “Walker Process” claim was barred by the four-year statute of limitations, 15 U.S.C. § 15(b). The court rejected each of the arguments for tolling presented by Korody. ISSUE Whether the district court" }, { "docid": "2358809", "title": "", "text": "as above indicated, Korody had fully set forth in its January 1982 answer. The clock having begun to tick when Korody received the 1980 disclosure or, at the latest, when Korody confirmed its knowledge of all needed information in January 1982, a 1983 disclosure was simply irrelevant to the dispositive issue, i.e., whether the clock had been ticking too long when Korody sought to amend in 1986. Whether the Outland Document was disclosed in 1980 or in 1983, was not, therefore, a genuine issue of fact material to a determination of whether the statute of limitations must be tolled. See Rule 56(e), Fed.R.Civ.P. (4) Continuing Violation Because GM’s antitrust violation was “continuing”, says Korody, damages should be awarded for the period July 1982-JuIy 1986. Korody argues that GM’s threats against its supplier Riken in 1983 was a violation. That issue was not raised before the district court. It is, therefore, improperly presented and cannot be considered here. Korody then argues that GM’s defense of its patent through the trial and appeal of Korody’s declaratory judgment suit constituted a continuing violation. The Ninth Circuit, whose antitrust rulings are followed by this court in appeals from judgments of district courts of that circuit, see Loctite Corp. v. Ultraseal Ltd., 781 F.2d 861, 875, 228 USPQ 90, 99 (Fed.Cir.1985), rejected Korody’s continuing violation argument in Pace Industries, Inc. v. Three Phoenix Co., 813 F.2d 234 (9th Cir.1987), a case involving a fact pattern substantially identical (Korody admits it is “facially similar”) in relation to the issue here. In Pace, the court said: T%e initiation of a lawsuit is the final, immutable act of enforcement of an allegedly illegal contract. At that point in time the lawsuit assumes an existence separate from the contract. All subsequent acts are controlled by the exigencies of litigation, not enforcement of the contract. The complaint puts the aggrieved party on notice that there is a possible antitrust violation. In every lawsuit, a party has a right, and an attorney has a duty, to prosecute or defend vigorously. Furthermore, no new injury results from the act of appealing that" }, { "docid": "2358793", "title": "", "text": "on the antitrust claim pending completion of a bench trial of the patent validity issue. Proceedings on GM’s infringement counterclaim were also stayed. On August 10, 1984, Judge Pfaelzer held GM’s patent invalid as fraudulently obtained and for obviousness under 35 U.S.C. § 103. Korody-Colyer Corp. v. General Motors Corp., 224 USPQ 368 (C.D.Cal.1984). On May 2, 1985, this court affirmed. 760 F.2d 1293, 225 USPQ 1099 (Fed.Cir.1985). In June 1986, Korody filed the Second Supplemental and Amended Complaint at issue here. That complaint contained an added claim that GM had violated the antitrust laws by enforcing a knowingly invalid patent fraudulently obtained, a claim designated by all concerned as a “Walker Process” claim. On December 3, 1986, after a hearing, Judge Pfaelzer filed clear, succinct, and complete findings and conclusions and entered her summary judgment of the same date, holding that Korody’s “Walker Process” claim was barred by the four-year statute of limitations, 15 U.S.C. § 15(b). The court rejected each of the arguments for tolling presented by Korody. ISSUE Whether the district court erred in dismissing Korody’s Second Supplemental and Amended Complaint as barred by the statute of limitations. OPINION JURISDICTION In USM Corp. v. SPS Technologies, Inc., 770 F.2d 1035, 1037, 226 USPQ 1038, 1039-40 (Fed.Cir.1985), this court transferred an appeal on a separated antitrust phase of a patent-antitrust suit because: (1) transfer advanced judicial economy, the Seventh Circuit having heard two prior appeals in the case in which underlying issues had been briefed; and (2) the separation occurred before, this court existed and could not have been designed to manipulate our jurisdiction. We there cautioned that the decision to transfer “must not be viewed as indicating how we will rule in future cases, for the circumstances that here prevail may well not recur.” Id., 226 USPQ at 1040. The present appeal is the first since USM Corf, in which antitrust related issues were decided by the district court after the patent phase had been finally decided at the appellate level. Here, however, considerations of judicial economy cut the other way. The circumstance in which a regional" }, { "docid": "2358795", "title": "", "text": "circuit had decided the patent phase in an earlier appeal has not recurred. The present appeal, though it turns on application of the statute of limitations, implicates antitrust considerations, with respect to which this court will apply discernible Ninth Circuit law. The district court's jurisdiction was indisputably based on 28 U.S.C. § 1338. This court, having exercised its jurisdiction in the prior appeal, is best situated to and will continue to exercise its jurisdiction in this follow-on appeal. KORODY’S ARGUMENTS It is undisputed that, absent tolling, Korody’s Second Supplemental and Amended Complaint (amendment) is barred. Making initially no reference to what the district court did, Korody simply repeats before us the four reasons for tolling rejected by the district court: (1) The July 1982 stay worked an equitable estoppel; (2) The June 1986 amendment related back to the earlier antitrust complaint; (3) GM fraudulently concealed certain evidence; (4) GM’s antitrust violation was continuing. None of those arguments has merit. (1) Equitable Estoffel [1] Korody at no point suggested to the district court or to this Court any basis whatever for failure to amend its complaint because of the stay. It admits that its antitrust counsel “withdrew” when the stay was entered, to return to the fray only after the trial and appeal were completed in the patent validity case. It states the obvious, i.e., that the parties “understood” that the stipulated order “stayed the antitrust claim”, and implies that it was thereby precluded or excused from amending its antitrust claim. The argument slides over what was stayed, i.e., discovery on Korody’s tie-in claim, the only antitrust claim then extant. Korody’s argument also disingenuously disregards Judge Pfaelzer’s clear explanation at the hearing: THE COURT: I never — just so that you can add to your argument — the Court never kept them from amending any pleading on any ground whatsoever. [COUNSEL FOR GM]: Absolutely not. THE COURT: I don’t have any order in that file that said that. It also disregards this in the district court’s finding 11 and conclusion 7: 11. At no time did the Court’s order preclude Korody" }, { "docid": "2358816", "title": "", "text": "distortions reprehensible, we do not find that GM faced untoward difficulties in responding to them and therefore decline to award GM its attorney fees on appeal. CONCLUSION Korody has shown no error of any kind in the careful and correct determinations of the district court. Accordingly, the partial summary judgment appealed from is affirmed. ’ AFFIRMED. . In Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172, 86 S.Ct. 347, 15 L.Ed.2d 247, 147 USPQ 404 (1965), the Court held that enforcement of a patent known to have been procured by fraud could lead to liability if all prerequisites under § 2 of the Sherman Act were shown. In Handgards, Inc. v. Ethicon, Inc., 601 F.2d 986, 202 USPQ 342 (9th Cir.1979), cert. denied, 444 U.S. 1025, 100 S.Ct. 689, 62 L.Ed.2d 659 (1980), the court held that bad faith enforcement of a patent known to be invalid may be the basis for that liability when § 2 prerequisites exist. References in the present text to a “Walker Process” claim should be read in light of the analysis in both Walker Process and Handgards. The appealed judgment of the district court, and its affirmance here, deal only with the statute of limitations; neither may be read as condoning the type of conduct alleged by Korody. . The complaint contained the usual allegations of monopoly, etc., but the only act charged was a tie-in. . As was well said in Starview Outdoor Theatre, Inc. v. Paramount Film Distributing Corp., 254 F.Supp. 855, 858 (N.D.Ill.1966), “Plaintiffs may not postpone suit until they have all of the information necessary to prove an antitrust violation” when such postponement goes beyond the period of the statute of limitations. Moreover, the Ninth Circuit stated in Rutledge v. Boston Woven Hose and Rubber Co., 576 F.2d 248, 250 (9th Cir.1978) that knowledge that one has a claim is tested on an objective basis (“To avoid the bar of limitation ... plaintiff must allege facts showing affirmative conduct upon the part of the defendant which would ... lead a reasonable person to believe that" }, { "docid": "2358797", "title": "", "text": "from amending or seeking to amend its antitrust complaint. 7. The statute of limitations was not equitably tolled under the Court’s July 21, 1982 Order, because that Order did not preclude amendment of the Complaint to add Walker Process claims. It also disregards this colloquoy at the hearing: [COUNSEL FOR KORODY]: Yes, your Honor. While this Court was working on that [the related patent validity case] the antitrust attorneys were out of the court, in fact. THE COURT: They were only out of the Court in the sense that we delayed the trial of the tie-in case. Nobody ever told anybody on Korody-Colyer’s side that they could not amend the pleadings. [COUNSEL FOR KORODY]: Indeed. THE COURT: Never. [COUNSEL FOR KORODY]: I agree____ THE COURT: If you want a Walker Process claim you have to plead it. Korody’s reply brief offers an after-the-fact interpretation of its counsel’s acknowledgement, saying the parties’ “understanding” was not limited to the language of the order (which literally stayed only discovery). Yet Korody points to absolutely no evidence indicating any “understanding” of GM that Korody was precluded from adding its “Walker Process” claim to its pleadings. Nowhere does Korody explain its failure even to seek leave of court to amend. Korody also unfairly accuses Judge Pfaelzer of making a post hoc interpretation of the stay when she said the order stayed “only the antitrust action that was there.” Nowhere does Korody explain how a claim that had not been made could have been stayed. Korody’s reliance on Mt. Hood Stages, Inc. v. Greyhound Corp., 616 F.2d 394 (9th Cir.), cert. denied, 449 U.S. 831, 101 S.Ct. 99, 66 L.Ed.2d 36 (1980), is misplaced. In that case, the court was accommodating enforcement of the Sherman and Interstate Commerce Acts and the factual issues in the antitrust action were raised in the required preliminary administative ICC proceeding. Here the doctrine of primary jurisdiction is absent and the factual and legal issues raised by Korody’s “Walker Process” could have been fully presented and decided by . the district court. On the entire record, it is clear that, from" }, { "docid": "2358804", "title": "", "text": "there was no basis for a valid patent, but nevertheless, thereafter proceeded to file the application which resulted in the patent in suit. Defendant, its patent attorneys, and the applicant for the patent in suit, failed to disclose to the Patent Office extensive prior art references of which they had knowledge, and which were pertinent to the subject matter being claimed in the application, even though the disclosure of such information was required by Patent Office rule as well as by case decisional law of the United States Supreme Court. [Emphasis added.] The foregoing allegations in Korody’s January 1982 answer were in substance identical to its 1986 assertion of its “Walker Process” claim, which reads: (b) the acquisition, through the knowing and active commission of fraud, of the United States and foreign patents on the aforesaid crosshead piston, including U.S. Letters Patent No. 3,555,972 to Hulsing (“Hulsing patent”), which defendant knew was invalid and unenforceable; (c) the threatened and attempted enforcement and enforcement, in bad faith, of its fraudulently-obtained, invalid and unenforceable patents against competitors in the relevant market and submarket, including plaintiff and plaintiff’s suppliers. Indeed, Korody’s 1982 allegations are closer than are its 1986 assertions to the language appearing in Walker Process, 382 U.S. at 174, 147 USPQ at 405-06 (“fraudulently and in bad faith obtaining and maintaining ... its patent... well knowing that it had no basis for ... a patent”) (ellipses in original). Second, Korody’s argument that its January 1982 allegations were based on “information and belief”, and that it could not then have asserted a “Walker Process” complaint without violating Rule 11, comes with particularly poor grace. Korody’s answer to GM’s counterclaim is of the boiler plate variety, containing twenty “information and belief” allegations, most of which never saw the light of day at trial. Within one such allegation, Korody asserted twelve different bases on which it is possible to hold a patent invalid. The answer also included Korody’s antitrust tie-in allegations as an affirmative defense of misuse. Korody’s effort to demean its allegations as based on “information and belief” is accompanied by no citation" }, { "docid": "2358794", "title": "", "text": "erred in dismissing Korody’s Second Supplemental and Amended Complaint as barred by the statute of limitations. OPINION JURISDICTION In USM Corp. v. SPS Technologies, Inc., 770 F.2d 1035, 1037, 226 USPQ 1038, 1039-40 (Fed.Cir.1985), this court transferred an appeal on a separated antitrust phase of a patent-antitrust suit because: (1) transfer advanced judicial economy, the Seventh Circuit having heard two prior appeals in the case in which underlying issues had been briefed; and (2) the separation occurred before, this court existed and could not have been designed to manipulate our jurisdiction. We there cautioned that the decision to transfer “must not be viewed as indicating how we will rule in future cases, for the circumstances that here prevail may well not recur.” Id., 226 USPQ at 1040. The present appeal is the first since USM Corf, in which antitrust related issues were decided by the district court after the patent phase had been finally decided at the appellate level. Here, however, considerations of judicial economy cut the other way. The circumstance in which a regional circuit had decided the patent phase in an earlier appeal has not recurred. The present appeal, though it turns on application of the statute of limitations, implicates antitrust considerations, with respect to which this court will apply discernible Ninth Circuit law. The district court's jurisdiction was indisputably based on 28 U.S.C. § 1338. This court, having exercised its jurisdiction in the prior appeal, is best situated to and will continue to exercise its jurisdiction in this follow-on appeal. KORODY’S ARGUMENTS It is undisputed that, absent tolling, Korody’s Second Supplemental and Amended Complaint (amendment) is barred. Making initially no reference to what the district court did, Korody simply repeats before us the four reasons for tolling rejected by the district court: (1) The July 1982 stay worked an equitable estoppel; (2) The June 1986 amendment related back to the earlier antitrust complaint; (3) GM fraudulently concealed certain evidence; (4) GM’s antitrust violation was continuing. None of those arguments has merit. (1) Equitable Estoffel [1] Korody at no point suggested to the district court or to this" }, { "docid": "2358802", "title": "", "text": "assertion that its original complaint put GM on notice that Korody was asserting both tying and enforcement-of-a-fraudulently-obtained-patent claims came as a surprise not only to GM, but to the district court, who said: Remember this is a case I have been working on for a long, long time and it would never have occurred to me that there is [in the original complaint] an antitrust violation based on the way they use the patent. Korody’s decision to press its unsupportable “relation back” arguments on appeal come as an equal surprise to us, particularly in view of Judge Pfaelzer’s conclusion 6: 6. Korody’s amended Walker Process claims do not relate back under Rule 15(c) of the Federal Rules of Civil Procedure because these amendments state a wholly new cause of action based on entirely different events and seek damages completely different from those originally sought. (3) Concealment Korody says GM concealed until 1983 the “(Jutland Document”, a report of GM’s patent counsel listing five patents and calling them “the closest prior art”. Until it had seen that document, says Korody, it had no basis for amending its complaint to allege a “Walker Process” claim. The argument is fallacious. First, in 1980, Korody received from GM a number of prior patents and established in the patent trial that GM failed to disclose material prior art patents totalling nine in number. In a conclusion 5, simply ignored by Korody, the district court correctly concluded that Korody had all it needed for its July 1986 amendment in January 1982. That conclusion is confirmed in Korody’s January 1982 answer to GM’s counterclaim for infringement, which contained these allegations: 16. On information and belief, the charge of infringement directed against Plaintiff was not made in good faith but for the purpose of hampering legitimate business competition. * * * * * * 18. On information and belief, Plaintiff alleges that the patent in suit was obtained by committing fraud upon the United States Patent Office, that, before the application for patent was filed, Defendant made its own search and evaluated the results thereof and concluded that" }, { "docid": "2358815", "title": "", "text": "1282, 223 USPQ 214 (9th Cir.1984), cert. denied, 469 U.S. 1190, 105 S.Ct. 963, 83 L.Ed.2d 968 (1985) (Handgards II), and quotes a portion of the court's opinion in that case. In both quotations, Korody wrenches the quoted material completely out of context, resulting in a presentation that mischaracterizes and misleads. Handgards II and Korody’s quotes simply have nothing to do with the statute of limitations/continuing violation issue so vigorously pressed by Korody in this appeal. Though each of the foregoing instances was called to Korody’s attention in GM’s brief, Korody’s reply brief makes no reference whatever to them. Korody's filing and maintenance of the appeal borders the frivolous. It is saved from that designation only by some of its arguments. Though lacking merit, those arguments appear sufficiently colorable to bring the appeal itself just inside the border of frivolity- That we do not find the entire appeal frivolous, however, does not excuse Korody’s above-described distortions, which wasted the resources of the court and the parties and abused the judicial process. Though we consider those distortions reprehensible, we do not find that GM faced untoward difficulties in responding to them and therefore decline to award GM its attorney fees on appeal. CONCLUSION Korody has shown no error of any kind in the careful and correct determinations of the district court. Accordingly, the partial summary judgment appealed from is affirmed. ’ AFFIRMED. . In Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172, 86 S.Ct. 347, 15 L.Ed.2d 247, 147 USPQ 404 (1965), the Court held that enforcement of a patent known to have been procured by fraud could lead to liability if all prerequisites under § 2 of the Sherman Act were shown. In Handgards, Inc. v. Ethicon, Inc., 601 F.2d 986, 202 USPQ 342 (9th Cir.1979), cert. denied, 444 U.S. 1025, 100 S.Ct. 689, 62 L.Ed.2d 659 (1980), the court held that bad faith enforcement of a patent known to be invalid may be the basis for that liability when § 2 prerequisites exist. References in the present text to a “Walker Process” claim should" }, { "docid": "2358808", "title": "", "text": "in 1982 (known absence of basis for patenting, knowing non-disclosure of pertinent art, and bad faith enforcement) falls within both categories. Though fully useful as a shield (as it successfully was), that conduct was clearly such as to warrant an assertion of a “Walker Process” type antitrust claim. Lastly, Korody vigorously argues that summary judgment was improper because the district court resolved a genuine issue of material fact when it found that GM had disclosed documents relating to the closest prior art, including the Outland Document, in 1980. That the parties dispute the date on which the Outland Document was disclosed, and the district court in colloquy referred to that document as “crucial”, does not make the issue one of genuine material fact. See Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Korody’s “issue of fact” argument must fail for one main, compelling reason: disclosure of The Outland Document was not a sine qua non for Korody’s “Walker Process” claim, the basis for which, as above indicated, Korody had fully set forth in its January 1982 answer. The clock having begun to tick when Korody received the 1980 disclosure or, at the latest, when Korody confirmed its knowledge of all needed information in January 1982, a 1983 disclosure was simply irrelevant to the dispositive issue, i.e., whether the clock had been ticking too long when Korody sought to amend in 1986. Whether the Outland Document was disclosed in 1980 or in 1983, was not, therefore, a genuine issue of fact material to a determination of whether the statute of limitations must be tolled. See Rule 56(e), Fed.R.Civ.P. (4) Continuing Violation Because GM’s antitrust violation was “continuing”, says Korody, damages should be awarded for the period July 1982-JuIy 1986. Korody argues that GM’s threats against its supplier Riken in 1983 was a violation. That issue was not raised before the district court. It is, therefore, improperly presented and cannot be considered here. Korody then argues that GM’s defense of its patent through the trial and appeal of Korody’s declaratory judgment" }, { "docid": "2358805", "title": "", "text": "in the relevant market and submarket, including plaintiff and plaintiff’s suppliers. Indeed, Korody’s 1982 allegations are closer than are its 1986 assertions to the language appearing in Walker Process, 382 U.S. at 174, 147 USPQ at 405-06 (“fraudulently and in bad faith obtaining and maintaining ... its patent... well knowing that it had no basis for ... a patent”) (ellipses in original). Second, Korody’s argument that its January 1982 allegations were based on “information and belief”, and that it could not then have asserted a “Walker Process” complaint without violating Rule 11, comes with particularly poor grace. Korody’s answer to GM’s counterclaim is of the boiler plate variety, containing twenty “information and belief” allegations, most of which never saw the light of day at trial. Within one such allegation, Korody asserted twelve different bases on which it is possible to hold a patent invalid. The answer also included Korody’s antitrust tie-in allegations as an affirmative defense of misuse. Korody’s effort to demean its allegations as based on “information and belief” is accompanied by no citation of authority that would countenance blind assertions not based on information, and its present concern for Rule 11 is at best belated. Third, Korody’s argument that without the Outland Document it could not have asserted intentional, willful concealment of pertinent prior art is specious. Korody’s answer made just that allegation, albeit in different words (“[GM] made its own search and evaluated the results thereof and concluded that there was no basis for a valid patent.”). A “Walker Process” claim involves a patentee’s enforcement of a patent the patentee knows is invalid. If the Outland Document might have constituted additional evidence of knowledge and intent, or made proof at trial easier, that would not be controlling. The evidence Korody had in 1980, and its January 1982 fraud allegations (GM’s bad faith enforcement to injure competition, GM’s knowledge of unpatentability before it filed its application, and GM’s failure to disclose known pertinent prior art), coupled with the monopoly and market allegations in its then-filed antitrust complaint, obviously encompassed all that was needed to found a “Walker Process”" } ]

[ { "docid": "22379250", "title": "", "text": "HANSEN, Circuit Judge. Linda Carothers was sentenced to time served and three years of supervised release after pleading guilty to use of interstate commerce facilities in the commission of murder for hire. One condition of her release was that she “not commit any other federal, state or local crime.” After serving approximately 14 months of supervised release, Carothers was charged with second-degree assault, a Class C felony in Missouri. After a hearing, the district court revoked Carothers’ supervised release and sentenced her to 24 months in prison. Carothers appeals, arguing that the district court abused its discretion in revoking her supervised release because the government failed to prove by a preponderance of the evidence that she violated a condition of her supervised release. If the government proves by a preponderance of the evidence that a defendant violated a condition of supervised release, unrelated to firearms or controlled substances, the district court has discretion to revoke supervised release. See 18 U.S.C. § 3583(e)(3), (g) (2000) (“The [district] court may ... revoke a term of supervised release, and require the defendant to serve in prison all or part of the term of supervised release ... if the court finds by a preponderance of the evidence that the defendant violated a condition of supervised release ... ”). “On appeal, the district court’s decision to revoke supervised release based on its finding of a violation is reviewed only for abuse of discretion.” United States v. Whalen, 82 F.3d 528, 532 (1st Cir.1996) (cited in United States v. Reeves, No. 96-2905, 1997 WL 215381, at *1 (8th Cir. May 1, 1997) (unpublished)). “And, as in other contexts where a district court has discretion to take certain action based on its findings of fact, the court’s subsidiary factfinding as to whether or not a violation occurred is reviewed for clear error.” Id. After an alleged “road rage” incident on December 18, 2002, Carothers was arrested and charged in Callaway County, Missouri, with second-degree assault. Under Missouri law, “[a] person commits the crime of assault in the second degree if he ... [ajttempts to cause or knowingly" } ]

[ { "docid": "22564061", "title": "", "text": "B. Sufficiency of the Evidence Carlton also challenges the evidence presented at his hearing on the grounds that it was insufficient to support his convictions on Specifications 1 and 2. As to Specification 1, the commission of the Ardsley robbery, he avers the district court erred by applying the preponderance standard to its findings; by giving credence to Shaw’s testimony despite his “mind-boggling” criminal record; and by overstating the evidence corroborating Shaw’s testimony. As to Specification 2, the conspiracy to commit a second bank robbery, Carlton maintains that, under any standard of proof, there was insufficient evidence to sustain a conspiracy finding because the requisite element of criminal agreement was lacking. That is to say, by presenting only evidence implicating Shaw and Carlton, the government failed to establish a conspiracy because Shaw, as a government informant, could not have formed the requisite criminal agreement with Carlton. We may dispense with these issues rather quickly, noting that we review a district court’s finding of a violation of supervised release only for an abuse of discretion and its factual findings for clear error. See United States v. Marshall, 371 F.3d 42, 45 (2d Cir.2004); United States v. Thomas, 239 F.3d 163, 168 (2d Cir.2001). 1. Commission of the Ardsley Bank Robbery. Carlton’s challenge to the proof in Specification 1 is without merit. First, as discussed above, accusations proved by a preponderance of evidence do not violate the Fifth or Sixth Amendments in the context of supervised release. Moreover, the district court acted pursuant to its statutory authority in “find[ing] by a preponderance of the evidence that the defendant violated a condition of supervised release,” 18 U.S.C. § 3583(e)(3), and hence committed no error by applying that standard. Second, the trial court did not err by crediting Shaw’s testimony despite his lengthy criminal history. We accord strong deference to a district court’s credibility determinations, particularly where that court based its findings on such determinations. United States v. John Doe # 1, 272 F.3d 116, 124 (2d Cir.2001). Here, Shaw’s lengthy criminal history consisted mainly of misdemeanor convictions which the trial court apparently found" }, { "docid": "20695813", "title": "", "text": "2014, the court heard additional arguments and then ordered revocation, finding that Wright had violated two prongs of the Maine aggravated assault statute, as he “recklessly used a dangerous weapon, [Corsaro’s] car,” and manifested “extreme indifference to human life.” Turning to sentencing, the court found that Wright’s underlying criminal contempt conviction was a Class A felony under 18 U.S.C. § 3559(a), which carries a maximum revocation imprisonment sentence of five years, according to 18 U.S.C. § 3583(e)(3). The court considered the relevant sentencing factors and then sentenced Wright to below the five-year maximum, sentencing him to thirty months of imprisonment. This appeal followed. II. We review the district court’s ultimate decision to revoke supervised release for abuse of discretion, and the underlying finding of a violation of supervised release for clear error. United States v. Oquendo-Rivera, 586 F.3d 63, 66-67 (1st Cir.2009); United States v. Whalen, 82 F.3d 528, 532 (1st Cir.1996). We review the revocation sentence the court imposes for abuse of discretion, see United States v. Butler-Acevedo, 656 F.3d 97, 99 (1st Cir.2011), though our review of legal questions is plenary, United States v. O’Neil, 11 F.3d 292, 294 (1st Cir.1993). A. Aggravated Assault under Maine Law Under 18 U.S.C. § 3583(e)(3), a court may revoke a term of supervised release if the court “finds by a preponderance of the evidence that the defendant violated a condition of supervised release.” 18 U.S.C. § 3583(e)(3). Wright challenges the court’s finding that he violated the term of his release that prohibits commission of a state crime. He argues that he did not commit aggravated assault under Maine law. We agree with the district court that Wright’s conduct during the July 20, 2014, incident constituted aggravated assault under § 208(1)(B), the “use of a dangerous weapon” prong of the Maine statute. See Me.Rev.Stat. Ann. tit. 17-A, § 208(1) (2014). As a result, we need not reach whether his conduct also qualifies under the “extreme indifference” prong, id. § 208(1)(C). Under applicable Maine law, criminal liability for aggravated assault attaches when a person “recklessly” causes bodily injury with “a dangerous weapon.” Id." }, { "docid": "2474563", "title": "", "text": "BREYER, Chief Judge. Vincent M. Portalla, also known as Vincent Marino, appeals from a decision of the federal district court revoking his term of “supervised release,” (related to a previous conviction for illegal gun possession) and ordering him to return to prison for an additional two years. See 18 U.S.C. § 3583; U.S.S.G. § 7B1.3-1.4, p.s. The court revoked Marino’s supervised release because it found that Marino had violated two important supervised release “conditions”: (1) the condition that he not commit further crimes; and (2) the condition that he not associate with other convicted felons. Marino claims that the district court’s factual findings lack adequate support in the record. The parties agree, as they must, that in revocation proceedings (1) the court must find facts by a “preponderance of the evidence,” 18 U.S.C. § 3583(e)(3); (2) the evidence need not satisfy the tests of admissibility set forth in the Federal Rules of Evidence, which do not apply, see U.S.S.G. § 6A1.3; Fed.R.Evid. 1101(d)(3); but (3) evidence that does not satisfy those Rules must nonetheless be reliable. See U.S.S.G. § 6A1.3; United States v. Geer, 923 F.2d 892, 897 (1st Cir.1991). Moreover, on appeal, we consider the evidence in the light most favorable to the government, see United States v. Manning, 955 F.2d 770, 773 (1st Cir.1992), and we recognize the district court’s broad legal power to determine witness credibility, see United States v. Resurreccion, 978 F.2d 759, 761 (1st Cir.1992). Applying these standards to the record before us, we cannot accept appellant’s arguments. First, the district court found that, on January 30, 1992, Marino, with two other men, unlawfully conspired to sell cocaine to undercover Boston police officers. Mari-no, in effect, concedes for purposes of this appeal that on January 30, 1992, Boston Police Detective Charles Wilson called a phone number (257-6673) and said “Batman, I need one.” Marino also effectively concedes that, as a result of this call, two men, Michael Oboardi (whom Marino knew to be a felon) and Dennis Othmer, appeared at a parking lot and gave waiting Boston police officers cocaine in exchange for cash. Marino" }, { "docid": "23130295", "title": "", "text": "proved by a preponderancé of the evidence that Whalen had assaulted his wife, in violation of state law, and hence in violation of the conditions of his supervised release. Additionally, in a separate written Memorandum of Sentencing' Judgment, the district court expressly stated, as to its factual findings: “I find the facts as set out in the Report of Revocation [prepared by the probation officer].” That report in turn set forth fully the factual allegations concerning the alleged assault. The Memorandum also reiterates the district court’s conclusions that “the defendant violated the special condition of supervised release that he not commit any new crimes” and that the government had met its burden of proving that the defendant had assaulted Christina Whalen. In the circumstances, the district court provided “fair notice to the defendant of the reasons for the revocation ... [and] an adequate record from which to build an appeal.” Morrissey, 408 U.S. at 490, 92 S.Ct. at 2604-05. There was no violation of Whalen’s due process rights. B. Merits of the Revocation Decision We briefly review the burden of proof and standard of review attending a supervised release revocation proceeding and appeal therefrom. At the district court level, the government has the burden of proving by a preponderance of the evidence that at least one of the conditions of the defendant’s supervised release was violated. United States v. Portalla, 985 F.2d 621, 622 (1st Cir.1993). Then, if the district court finds that a violation occurred, it has discretion to revoke or modify the defendant’s supervised release (except for a violation involving firearms or controlled substance offenses, in which case revocation is mandatory). See 18 U.S.C. § 3583(e), (g). On appeal, the district court’s decision to revoke supervised release based on its finding of a violation is reviewed only for abuse of discretion. United States v. Morin, 889 F.2d 328, 331 (1st Cir.1989) (revocation decision “will not be reversed absent a clear showing of an abuse of discretion”);. see also United States v. Gallo, 20 F.3d 7, 13 (1st Cir.1994). And, as in other contexts where a district court has" }, { "docid": "16741291", "title": "", "text": "felon, Thomas King. Judge Shabaz stated that he was “reasonably satisfied,” based on Officer Kretschman’s testimony and the other corroborating evidence presented, that Goad violated the conditions of his supervised release. The court revoked Goad’s release and sentenced him to twenty-four months of incarceration. II. DISCUSSION A. Standard of Proof Goad contends that the district court applied an improper standard of proof when Judge Shabaz stated that he was “reasonably satisfied that the probationer has violated the conditions of his probation, and that, accordingly, revocation of probation is appropri ate — revocation of supervised release is appropriate in this matter.” The defendant argues that 18 U.S.C. § 3583(e)(3) requires a court to find violations of a felon’s supervised release through the “preponderance of the evidence” standard, rather than the “reasonably satisfied” standard applicable to the revocation of probation. Whether the district court applied the correct standard of proof is a question of law, subject to de novo review. United States v. Church, 970 F.2d 401, 404 (7th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1009, 122 L.Ed.2d 157 (1993). As we recognized in United States v. Dillard, 910 F.2d 461, 464 (7th Cir.1990) (per curiam) the standard of proof for revocation of supervised release is governed by statute. To revoke a defendant’s supervised release under 18 U.S.C. § 3583(e)(3), the district court must find by a preponderance of the evidence that the defendant violated the terms of his supervised release. Our review of the record convinces us that the district court applied the proper standard of review. Supervised release, probation, and parole are by their very nature similar correctional programs which place somewhat comparable restrictions on a convicted person’s freedom. Nonetheless, Congress required the higher, preponderance of the evidence standard of proof for the revocation of supervised release when it passed the Comprehensive Crime Control Act of 1984. See 18 U.S.C. § 3583(e)(3). Different standards of proof apply depending on which form of post-incarceration release a defendant is serving. To revoke a defendant’s term of probation, the government must establish to the reasonable satisfaction of the district court that" }, { "docid": "22167483", "title": "", "text": "to show that the information contained in the report is inaccurate or unreliable. See United States v. Terry, 916 F.2d 157, 162 (4th Cir.1990). A district court’s findings regarding drug quantity are factual in nature and are reviewed only for clear error. See United States v. Lamarr, 75 F.3d 964, 972 (4th Cir.1996). McRae argues that the drug quantity determination the district court attributed to him was clearly erroneous because of a discrepancy between the trial testimony of Edward Ward (indicating Ward had only received cocaine from McRae on a few occasions) and Ward’s statements to agents outside of court (which suggested Ward had purchased around 567 grams of cocaine from McRae). Because the sentencing judge had only to find the relevant drug quantities by a preponderance of the evidence, the discrepancy in Ward’s testimony is not fatal to the government’s proof. The selfcon-tradictions in Ward’s testimony essentially raise a credibility issue' — a question of fact that the district court must resolve at sentencing. The district court’s factual findings regarding the relative credibility of Ward’s two conflicting stories were not clearly erroneous. Neither were the resulting drug quantity determinations. Accordingly, the district court should be affirmed. VIII. Gilbert Melvin argues that he should not be held accountable during sentencing for drug amounts flowing from offenses of which he was acquitted. The Supreme Court, however, permits sentencing courts to take acquitted conduct into account for purposes of determining drug amount, because of the lower standard of proof that applies at the sentencing stage. See United States v. Watts, 519 U.S. 148, 155-56, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997) (“[A]n acquittal in a criminal case does not preclude the Government from relitigating an issue when it is presented in a subsequent action governed by a lower standard of proof.”); see also United States v. Isom, 886 F.2d 736, 738 (4th Cir.1989). At sentencing, the government need only prove the “acquitted” drug conduct by a preponderance of the evidence, even though the government failed to convince a jury at trial beyond a reasonable doubt. See Watts, 519 U.S. at 156, 117" }, { "docid": "22411857", "title": "", "text": "PER CURIAM: Dwaine Copeland appeals from a judgment revoking his supervised release. He contends that the district court abused its discretion in concluding that he violated the conditions of his release and violated his due process rights in faffing to make written findings of the evidence on which it relied. .We affirm the district court. I. Appellant, convicted and sentenced for importing cocaine into the United States, completed his three year prison term and commenced three years of supervised release. One of the conditions of his supervised release was that he not purchase, possess, use, or distribute drugs. Appellant violated this condition through' the sale of cocaine to an undercover police officer on two occasions. After a contested hearing, the district court found that thé government proved, based on a preponderance of the evidence, that appellant had violated the conditions of his supervised release. See 18 U.S.C. § 3583(e)(3) (Supp. IV 1992) (preponderance of the evidence standard used in deciding if person violated conditions of release). The district court revoked his release and sentenced him to eighteen months imprisonment. II. We review the district court’s conclusion that appellant violated the terms of his supervised release for abuse of discretion. United States v. Thompson, 976 F.2d 1380, 1381 (11th Cir.1992). Appellant contends that the evidence introduced at the hearing was insufficient for the district court to conclude that he had sold cocaine. As the result of stipulations of the parties, the only issue before the district court at the hearing was whether appellant was the person from whom the undercover officer purchased cocaine on two occasions. A police officer testified that he went to appellant’s home twice, and each time appellant sold cocaine to him. Although the appellant provided contrary evidence, the district court credited the officer’s testimony. The credibility of a witness is in the province of the factfinder and this court will not ordinarily review the factfinder’s determination of credibility. United States v. Billue, 994 F.2d 1562, 1563 (11th Cir.1993). The district court did not abuse its discretion in concluding that the government proved that appellant violated the terms" }, { "docid": "22564062", "title": "", "text": "its factual findings for clear error. See United States v. Marshall, 371 F.3d 42, 45 (2d Cir.2004); United States v. Thomas, 239 F.3d 163, 168 (2d Cir.2001). 1. Commission of the Ardsley Bank Robbery. Carlton’s challenge to the proof in Specification 1 is without merit. First, as discussed above, accusations proved by a preponderance of evidence do not violate the Fifth or Sixth Amendments in the context of supervised release. Moreover, the district court acted pursuant to its statutory authority in “find[ing] by a preponderance of the evidence that the defendant violated a condition of supervised release,” 18 U.S.C. § 3583(e)(3), and hence committed no error by applying that standard. Second, the trial court did not err by crediting Shaw’s testimony despite his lengthy criminal history. We accord strong deference to a district court’s credibility determinations, particularly where that court based its findings on such determinations. United States v. John Doe # 1, 272 F.3d 116, 124 (2d Cir.2001). Here, Shaw’s lengthy criminal history consisted mainly of misdemeanor convictions which the trial court apparently found of not much concern for credibility purposes. The court was entitled to do so because the government is often saddled with imperfect witnesses, and the finder of fact must evaluate their testimony despite the witnesses’ shortcomings. United States v. Schneider, 395 F.3d 78, 87 (2d Cir.2005). Third, the trial court was similarly entitled to deference in its finding that the other evidence — particularly Carlton’s recorded conversation explicitly acknowledging his participation in the Ardsley robbery — corroborated Shaw’s testimony, and appellant’s attempt to disparage that court’s reasoning in this regard is unpersuasive. Our own review of the record leads us to agree that the evidence was compelling. In short, there is no colorable claim of insufficient evidence with regard to Specification 1. 2. Conspiracy to Commit Another Bank Robbery. We turn now to Specification 2, the conspiracy to commit an additional bank robbery. To convict a defendant of such a conspiracy, the government must prove, among other things, “that the person charged with conspiracy ... knowingly joined and participated in it.... The agreement between the" }, { "docid": "22167482", "title": "", "text": "jury could have convicted on the predicate drug offense. Carter’s conviction on Count Five passes muster under the Munoz-Fabela approach because the jury was unable to reach a verdict for conviction or acquittal on the predicate drug offense. Because there was no affirmative acquittal on Count One, a reasonable jury could theoretically have convicted on the predicate drug offense embodied by that Count. VIL Jerry McRae challenges the district court’s finding that he was responsible for more than 500 but less than 1500 grams of crack cocaine, establishing a sentencing guideline base offense level of 36 pursuant to U.S.S.G. § 2D1.1. After consideration of other factors, McRae’s guideline range was set at 360 months to life in prison. Drug quantity determination is governed by the following standards. The Government must prove by a preponderance of the evidence the amount of controlled substances attributable to a defendant. See United States v. Johnson, 54 F.3d 1150, 1156 (4th Cir.1995). When objecting to drug quantities as set forth in the Presentence Report, the defendant has an affirmative duty to show that the information contained in the report is inaccurate or unreliable. See United States v. Terry, 916 F.2d 157, 162 (4th Cir.1990). A district court’s findings regarding drug quantity are factual in nature and are reviewed only for clear error. See United States v. Lamarr, 75 F.3d 964, 972 (4th Cir.1996). McRae argues that the drug quantity determination the district court attributed to him was clearly erroneous because of a discrepancy between the trial testimony of Edward Ward (indicating Ward had only received cocaine from McRae on a few occasions) and Ward’s statements to agents outside of court (which suggested Ward had purchased around 567 grams of cocaine from McRae). Because the sentencing judge had only to find the relevant drug quantities by a preponderance of the evidence, the discrepancy in Ward’s testimony is not fatal to the government’s proof. The selfcon-tradictions in Ward’s testimony essentially raise a credibility issue' — a question of fact that the district court must resolve at sentencing. The district court’s factual findings regarding the relative credibility of" }, { "docid": "21532828", "title": "", "text": "in February 2016. At a revocation hearing held April 19, •2016, the district court explicitly relied on statements made by Speicher, the deputy sheriff, and Benita and found Petersen not totally credible. The district court found Petersen committed the new crime of solicitation to commit an aggravated misdemeanor, which it treated as a grade C violation under United States Sentencing Guidelines (U.S.S.G. or Guidelines) § 7Bl.l(a)(3). Based on that violation and Petersen’s criminal history category II at the time of his original sentencing, the Guidelines range of imprisonment was 4 to 10 months. See id. § 7B1.4. The government requested a revocation sentence within the Guidelines range, but Petersen asked for no more than 30 days in jail. The district court considered the 18 U.S.C. § 3553(a) factors and noted Petersen had a history of mental illness, substance abuse, and violent tendencies and was a high risk to recidivate. The district court revoked Petersen’s supervised release and sentenced him to 8 months imprisonment followed by a one-year term of supervised release. Petersen filed this timely appeal, asserting (1) the evidence was insufficient to show by a preponderance that he committed a new offense, and (2) 8 months imprisonment was a substantively unreasonable sentence. II. DISCUSSION A district court may “revoke supervised release if the government proves by a preponderance of the evidence that the defendant violated a condition of supervised release.” United States v. Boyd, 792 F.3d 916, 919 (8th Cir. 2015); see also 18 U.S.C. § 3583(e)(3). We review such a revocation decision for abuse of discretion, and we review any findings of fact as to whether or not a violation occurred for clear error. See Boyd, 792 F.3d at 919. We reverse a revocation decision only if we have “ ‘a definite and firm conviction that the District Court was mistaken.’” Id. (quoting United States v. Willis, 433 F.3d 634, 636 (8th Cir. 2006)). The district court found by a preponderance of the evidence Petersen committed the state crime of soliciting an aggravated misdemeanor. Iowa Code § 705.1 prohibits “commanding], entreating], or otherwise attempting] to persuade [another] person" }, { "docid": "22395367", "title": "", "text": "a condition of supervised release other than those listed in 18 U.S.C. § 3583(g). 18 U.S.C. § 3583(e)(3). A defendant violates a mandatory condition of supervised release if he commits a federal, state, or local crime. § 3583(d). The district court may find that the commission of a crime violates a mandatory condition of release without regard to whether the defendant has been charged with the crime. United States v. Jolibois, 294 F.3d 1110, 1114 (9th Cir.2002); U.S.S.G. § 7B1.1 cmt. n. 1. We review a district court’s decision to revoke supervised release for abuse of discretion and its factfinding as to whether a violation occurred for clear error. United States v. Carothers, 337 F.3d 1017, 1019 (8th Cir.2003). The district court found by a preponderance of the evidence that Perkins committed second-degree assault in violation of Mo.Rev.Stat. § 565.082.1 by “recklessly placing a law enforcement officer in danger” of serious physical injury. The testimony before the district court positively identified Perkins as the driver of a car that drove directly toward the deputy, forcing him to move out of its path. The testimony, which the district court implicitly found to be credible, sufficiently established a violation of section 565.082.1, and thus the district court did not clearly err in its determination that Perkins had violated a mandatory condition of his release. See Missouri v. St. George, 215 S.W.3d 341 (Mo.Ct.App.2007) (driving directly toward a law enforcement officer and forcing him to move may be considered second-degree assault of an officer in violation of section 565.082); Missouri v. Brown, 989 S.W.2d 652, 653 (Mo.Ct.App.1999) (same). Furthermore, Perkins conceded that he had violated a special condition of his release. The district court did not abuse its discretion by revoking Perkins’s supervised release after it determined that he had committed Grade B and Grade C supervised release violations by assaulting an officer and absconding from his substance abuse program. See Carothers, 337 F.3d at 1019; U.S.S.G. § 7B1.3(a)(1) (policy statement calling for the revocation of supervised release upon a finding of a Grade A or B supervised release violation as defined in" }, { "docid": "23130296", "title": "", "text": "briefly review the burden of proof and standard of review attending a supervised release revocation proceeding and appeal therefrom. At the district court level, the government has the burden of proving by a preponderance of the evidence that at least one of the conditions of the defendant’s supervised release was violated. United States v. Portalla, 985 F.2d 621, 622 (1st Cir.1993). Then, if the district court finds that a violation occurred, it has discretion to revoke or modify the defendant’s supervised release (except for a violation involving firearms or controlled substance offenses, in which case revocation is mandatory). See 18 U.S.C. § 3583(e), (g). On appeal, the district court’s decision to revoke supervised release based on its finding of a violation is reviewed only for abuse of discretion. United States v. Morin, 889 F.2d 328, 331 (1st Cir.1989) (revocation decision “will not be reversed absent a clear showing of an abuse of discretion”);. see also United States v. Gallo, 20 F.3d 7, 13 (1st Cir.1994). And, as in other contexts where a district court has discretion to take certain action based on its findings of fact, the court’s subsidiary factfinding as to whether or not a violation occurred is reviewed for clear error. Cf. United States v. Winter, 70 F.3d 655, 659 (1st Cir.1995) (district court’s contempt order reviewed for abuse of discretion, underlying factual findings for clear error); United States v. Martinez-Molina, 64 F.3d 719, 732 (1st Cir.1995) (trial court’s denial of motion to withdraw plea reviewed for abuse of discretion, subsidiary findings of fact for clear error). Whalen argues that the district court abused its discretion in revoking his supervised release, and that it clearly erred in relying on Christina Whalen’s testimony— which the court itself characterized as problematic — to find that Whalen violated the conditions of his release. Whatever the problems associated with Christina Whalen’s testimony, we reject appellant’s argument that the district court erred in crediting it over the testimony of Archie Whalen. It is within a factfinder’s discretion to credit portions of a witness’ testimony even though it finds other portions dubious. See Wytrwal" }, { "docid": "22395366", "title": "", "text": "the scene. The individual drove toward a deputy who was outside of his vehicle, forcing the deputy to move aside in order to avoid being struck by the car. The driver of the car was not apprehended that day. On October 2, 2006, Perkins was arrested at the location believed to be his residence. At Perkins’s revocation hearing, a deputy who was at the scene of the escape identified Perkins as the driver of the car that had nearly struck his colleague. Perkins did not testify at the hearing, but denied, through counsel, that he was the driver of the escaping ear. Although Perkins was not charged with assault, the district court found that he had violated a mandatory condition of his supervised release by committing the assault on the deputy. Perkins conceded that he had violated a special condition by leaving the substance abuse program. II. A. Revocation of Supervised Release A district court has discretion whether to revoke supervised release if it finds by a preponderance of the evidence that the defendant violated a condition of supervised release other than those listed in 18 U.S.C. § 3583(g). 18 U.S.C. § 3583(e)(3). A defendant violates a mandatory condition of supervised release if he commits a federal, state, or local crime. § 3583(d). The district court may find that the commission of a crime violates a mandatory condition of release without regard to whether the defendant has been charged with the crime. United States v. Jolibois, 294 F.3d 1110, 1114 (9th Cir.2002); U.S.S.G. § 7B1.1 cmt. n. 1. We review a district court’s decision to revoke supervised release for abuse of discretion and its factfinding as to whether a violation occurred for clear error. United States v. Carothers, 337 F.3d 1017, 1019 (8th Cir.2003). The district court found by a preponderance of the evidence that Perkins committed second-degree assault in violation of Mo.Rev.Stat. § 565.082.1 by “recklessly placing a law enforcement officer in danger” of serious physical injury. The testimony before the district court positively identified Perkins as the driver of a car that drove directly toward the deputy, forcing" }, { "docid": "23684070", "title": "", "text": "2003, the District Court issued an Amended Order, pursuant to Federal Rule of Criminal Procedure 35(a). In the Amended Order, the District Court found Poellnitz guilty of violating a state law while on supervised release, but contrary to the original Order did not find him guilty of failing to pay full restitution. The Court treated the state law violation as a grade C violation and, pursuant to 18 U.S.C. § 3583(e)(3) and (h), revoked Poellnitz’s supervised release and sentenced him to a term of one month’s imprisonment, to be served in home confinement pursuant to 18 U.S.C. § 3583(e)(4) and § 7B1.3(a)(2) and (c)(1) of the United States Sentencing Guidelines. II. Poellnitz argues there was insufficient evidence to prove that he violated a condition of his supervised release by committing a crime because he pled nolo contendere (rather than guilty) to the crime charged and passed a polygraph test. Poellnitz’s challenge to the propriety of the District Court’s consideration of a nolo contendere plea as proper evidence that he committed a crime in violation of his supervised release is a question that is “essentially legal in nature, [and] we will exercise de novo review.” United States v. Blackston, 940 F.2d 877, 882 (3d Cir.1991) (citing United States v. Ortiz, 878 F.2d 125, 126-27 (3d Cir.1989)). We conclude that the District Court erred as a legal matter in relying on the nolo plea as evidence of commission of a crime. The plain language of 18 U.S.C. § 3583(e)(3) requires a finding by “a preponderance of the evidence that the defendant violated a condition of supervised release.” When the condition is that the defendant not commit a crime, there is no requirement of conviction or even indictment. This Court has emphasized “the broad discretion which is traditionally given to district courts to revoke probation when probation conditions are violated.” United States v. Gordon, 961 F.2d 426, 429 (3d Cir.1992). A “court can revoke probation when it is reasonably satisfied that the probation conditions have been violated, without the government being required to present proof beyond a reasonable doubt that the defendant committed" }, { "docid": "23557565", "title": "", "text": "932 F.2d at 1280. We turn to the merits. Ill We review a district court’s application of the supervised release statute de novo. United States v. Lockard, 910 F.2d 542 (9th Cir.1990). We review a district court’s factual findings at the sentencing phase for clear error. United States v. Haggard, 41 F.3d 1320, 1329 (9th Cir.1994). We have explained that “[a] district court may ‘revoke a term of supervised release, and require the person to serve in prison all or part of the term of supervised release ... if the court ... finds by a preponderance of the evidence that the defendant violated a condition of supervised release.’ ” United States v. Vallejo, 69 F.3d 992, 994 (9th Cir.1995) (quoting 18 U.S.C. § 3583(e)(3)), cert. denied, - U.S. -, 116 S.Ct. 1447, 134 L.Ed.2d 567 (1996). A condition of Lomayaoma’s supervised release was that he remain law abiding. Thus, in this case, a conviction is not a prerequisite for revoking supervised release. As the supervised release statute makes clear, the court in this case only needed to look to the testimony presented to determine whether a “preponderance of the evidence” supported the conclusion that Lomayaoma had acted unlawfully. 18 U.S.C. § 3583(e)(3). The district court conducted a hearing on the events that involved Lomayaoma’s conduct on August 2, 1994. Defense counsel cross-examined the government’s witnesses and was given the opportunity to introduce evidence on behalf of Lomayaoma. After considering the testimony of Mary and Jane, as well as the evaluation of the Hopi Children’s Court Counselor, the district court determined that the testimony of the two girls was credible. The court then concluded that Lomayaoma had touched the two girls in a manner that would constitute a crime under 18 U.S.C. § 2246. Lomayaoma argues that the evidence was insufficient to support a violation under 18 U.S.C. § 2246 because there was no evidence that he intended to “abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.” 18 U.S.C. § 2246. But for purposes of a supervised release revocation hearing, the district court need only" }, { "docid": "5628255", "title": "", "text": "who had shot at him. Feliciano himself could have been subject to discipline or liability if he had shot at a retreating individual who was not directly implicated in a serious offense. And, given that the scene had been a confused one and another individual had fired at the police, the possibility exists that Feliciano indeed believed himself to have been fired upon and simply made a mistake as to who had done it. Nevertheless, at the close of the hearing the district court found from the bench that Oquendo had committed a grade A violation by “having the gun and shooting the agent.” The district judge observed that adrenalin could account for a wounded man’s ability to leap over a fence. The court revoked Oquendo’s supervised release and sentenced him to five years’ imprisonment, the maximum term allowed under the statute. 18 U.S.C. § 3583(e)(3). The district judge did not address or rely on the lesser alleged violations relating to the Yauco incident or the incident two years before. After failing on a motion for reconsideration, Oquendo appealed from the district court’s revocation decision and sentence. It is common ground that the government’s burden at the hearing was to prove by a preponderance of the evidence a violation of one or more conditions of release, 18 U.S.C. § 3583(e)(3); United States v. Whalen, 82 F.3d 528, 531-32 (1st Cir.1996); United States v. Portalla, 985 F.2d 621, 622 (1st Cir.1993). If such a violation were proved, the district judge’s decision whether to revoke supervised release and what penalty to impose would be reviewed only for abuse of discretion. United States v. McInnis, 429 F.3d 1, 3-4 (1st Cir.2005); Whalen, 82 F.3d at 532. The finding of violation in this case — that Oquendo had a weapon and fired at an officer — is a factual determination reviewed by us primarily for clear error. See Whalen, 82 F.3d at 532. This, we have said, would require a “definite and firm conviction” that the finding was erroneous, United States v. Henderson, 463 F.3d 27, 32 (1st Cir.2006) (quoting United States v. Ivery," }, { "docid": "10504301", "title": "", "text": "violation. In this appeal, Carter contests the determination that his assault offense was a Grade A violation because he was not charged with or convicted of such an offense. He argues that this determination caused an incorrect Guidelines range and therefore a procedurally unreasonable sentence. II. Discussion A. Standard of Review In scrutinizing a sentence imposed, “we review a district court’s legal conclusions regarding the Guidelines de novo, its application of the Guidelines to the facts for abuse of discretion, and its factual findings for clear error.” United States v. Blackmon, 557 F.3d 113, 118 (3d Cir.2009) (internal citations omitted). Procedural errors are reviewed for abuse of discretion with varying degrees of deference depending on the nature of the particular error asserted. United States v. Wise, 515 F.3d 207, 217 (3d Cir.2008). As such, “if the asserted procedural error is purely factual, our review is highly deferential and we will conclude there has been an abuse of discretion only if the district court’s findings are clearly erroneous.” Id. On the other hand, we give no deference to purely legal errors, such as “when a party claims that the district court misinterpreted the Guidelines.” Id. Facts relevant to the application of the Guidelines are established by a preponderance of evidence. See United States v. Grier, 475 F.3d 556, 568 (3d Cir.2007) (en banc); see also 18 U.S.C. § 3583(e)(3) (revocation appropriate if the court “finds by a preponderance of the evidence that the defendant violated a condition of supervised release”). B. Carter’s Sentence Supervised release requires “that the defendant not commit another Federal, State, or local crime during the term of supervision.” 18 U.S.C. § 3583(d). In revoking a term of supervised release, a district court considers the grade of violation — A, B, or C, with A being the most serious. See U.S.S.G. §§ 7B1.1-1.4. The grade of violation directly affects the Guidelines range for the resulting sentence. 1. Categorizing Violations of Supervised Release Grade A violations involve “conduct constituting ... a federal, state, or local offense punishable by a term of imprisonment exceeding one year that ... is a" }, { "docid": "5628256", "title": "", "text": "for reconsideration, Oquendo appealed from the district court’s revocation decision and sentence. It is common ground that the government’s burden at the hearing was to prove by a preponderance of the evidence a violation of one or more conditions of release, 18 U.S.C. § 3583(e)(3); United States v. Whalen, 82 F.3d 528, 531-32 (1st Cir.1996); United States v. Portalla, 985 F.2d 621, 622 (1st Cir.1993). If such a violation were proved, the district judge’s decision whether to revoke supervised release and what penalty to impose would be reviewed only for abuse of discretion. United States v. McInnis, 429 F.3d 1, 3-4 (1st Cir.2005); Whalen, 82 F.3d at 532. The finding of violation in this case — that Oquendo had a weapon and fired at an officer — is a factual determination reviewed by us primarily for clear error. See Whalen, 82 F.3d at 532. This, we have said, would require a “definite and firm conviction” that the finding was erroneous, United States v. Henderson, 463 F.3d 27, 32 (1st Cir.2006) (quoting United States v. Ivery, 427 F.3d 69, 72 (1st Cir.2005), cert. denied, 546 U.S. 1222, 126 S.Ct. 1448, 164 L.Ed.2d 146 (2006)), a conclusion made difficult because the reviewing court must interpret the evidence in the light most favorable to the government, Portalla, 985 F.2d at 622, and credibility is largely a matter for the fact-finder, Ivery, 427 F.3d at 72. Because the district judge chose to believe one and not the other of two witnesses before him, it might seem that the choice of whom to credit resolves the matter. But the credibility of a story depends not only on the seeming sincerity of witnesses and their demeanor in the courtroom but also on more objective criteria: for example, consistency (both internal to the testimony and with the physical evidence), probability, access of the witness to information, his bias or interest, and corroboration or unexplained contradiction of his testimony by undisputed testimony or empirical evidence. As the Supreme Court has said, “[djocuments or objective evidence may contradict the witness’ story; or the story may itself be so internally" }, { "docid": "1035919", "title": "", "text": "F.3d 103, 113 (2d Cir.2002) (the government provided an adequate reason for not presenting the declarants to testify where the releasee’s “history of violent conduct made reprisal against them a possibility”). The hearsay evidence presented against Rondeau was reliable, and the government presented a sufficient reason for not calling the declarants to testify. Consequently, the district court did not abuse its discretion under Rule 32.1(b)(2)(C) in admitting the hearsay evidence at Ron-deau’s revocation hearing. Rondeau also claims that there was insufficient evidence to conclude that he committed an assault or illegally possessed a firearm. We consider this argument de novo, taking the facts in the light most favorable to the government, to determine whether there was proof, by a preponderance of the evidence, that Rondeau violated his supervised release conditions. See United States v. Portalla, 985 F.2d 621, 622 (1st Cir.1993). Rondeau challenges the sufficiency of the evidence by discounting Williams’ and Estrada’s statements as unreliable and-then claiming that the remaining evidence was insufficient. But, as discussed above, Williams’ and Estrada’s statements were properly considered and, when taken into account, there is no question that this evidence supports the conclusion that Rondeau assaulted Williams while illegally possessing a gun. Affirmed. . Under the relevant provisions of the United States Sentencing Guidelines, violations of supervised reléase are classified into three ' grades: A, B, and C. Grade A violations include the commission of a violent felony. Grade C violations include violations of drug testing and reporting conditions. If the court finds a grade A violation, it must revoke the defendant's release, but it need not to do so for a grade C violation. If two or more separate violations have occurred, the more (or most) serious violation controls the punishment. See U.S.S.G. §§ 7B1.1 & 7B1.3 (2004). . We reserved this issue in United States v. Taveras, 380 F.3d 532, 538 n. 8 (1st Cir.2004). . Rondeau cites Ash v. Reilly, 354 F.Supp.2d 1, 8-9 (D.D.C.2004), to argue that Crawford should apply in these circumstances. For the reasons discussed above, we do not find Ash persuasive." }, { "docid": "22786367", "title": "", "text": "the court again revoked his supervised release in both cases. This second revocation — and the resultant sentences — provide the basis for this appeal. In petitioning the court to order this second revocation, the Government alleged four violations of the terms of Padgett’s supervised release: possession of a firearm, two counts of battery, and possession of a switchblade knife. Following an evi-dentiary hearing, the district court found that the Government had proven, by a preponderance of the evidence, that Pad-gett possessed a firearm, committed one count of battery, and possessed a switchblade knife. Based on these violations, the court revoked Padgett’s supervised release in both cases. The court then sentenced Padgett to consecutive terms of ten months and fourteen months in prison, followed by concurrent terms of twenty-four and twenty months of supervised release. Padgett noted a timely appeal. II. . Padgett maintains that the district court “abused its discretion” when it made one of the findings underlying its decision to revoke his release. Appellant’s Br. 2. We heard argument in this case to clarify our standard of review for such findings. .We review a district court’s ultimate decision to revoke a defendant’s supervised release for abuse of discretion. United States v. Copley, 978 F.2d 829, 831 (4th Cir.1992). But, like our sister circuits, we review a district court’s factual findings underlying a revocation for clear error. See United States v. Preacely, 702 F.3d 373, 375-76 (7th Cir.2012); United States v. Oquendo-Rivera, 586 F.3d 63, 67 (1st Cir.2009). Of course, reliance on a clearly erroneous material fact itself constitutes an abuse of discretion. See United States v. Zayyad, 741 F.3d 452, 458 (4th Cir.2014). We will not disturb a district court’s revocation sentence unless it falls outside the statutory maximum or is otherwise “plainly unreasonable.” United States v. Crudup, 461 F.3d 433, 437 (4th Cir.2006). Only if a revocation sentence is unreasonable must we assess whether it is plainly so. United States v. Moulden, 478 F.3d 652, 656 (4th Cir.2007). In determining whether a revocation sentence is unreasonable, we strike “a more deferential appellate posture” than we do when" } ]

[ { "docid": "16788540", "title": "", "text": "a reasonable doubt. United States v. Santiago, supra. Before assessing the evidence, we first state the necessary elements for a RICO conspiracy: “(1) the existence of an ‘enterprise,’ (2) that the defendant knowingly joined the enterprise and (3) that the defendant agreed to commit, or in fact committed, two or more specified predicate crimes as part of his participation in the affairs of the enterprise.” United States v. Anguilo, 847 F.2d at 964; United States v. Winter, 663 F.2d at 1136. Enterprise is defined in 18 U.S.C. § 1961(4): “ ‘enterprise’ includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity[.]” We now turn to the evidence. It is to be noted at the outset that Torres Lopez was the sole defendant. When the case started, Hector Acevedo-Ramos was also a defendant but pled guilty after two days of trial. All of the other defendants pled guilty after the indictment was returned and prior to the start of trial. The first element to be proven was the existence of an “enterprise.” The evidence on this was overwhelming and shocking. The government proved through the mouths of the members of the enterprise that, under the leadership of Maldonado, a group of policemen, who constituted the core of the Criminal Investigation Corps of the Puerto Rico Police Department, systematically engaged in crime for profit. Every police officer charged or named in the indictment testified in detail about the crimes in which he and his fellow officers were involved. Their testimony, both singly and collectively, made it unmistakable that defendant, as second in command to Maldonado, was part of the “enterprise” from its beginning in 1973. He participated actively in the enterprise’s criminal activities and took his share of its ill-gotten gains. There can be no question either that the evidence was more than sufficient, in fact overwhelming, to prove that defendant participated actively in the two predicate acts of which the jury found him guilty: the robbery and attempted murder of Francisco Rivera Pitre in October of" } ]

[ { "docid": "16788528", "title": "", "text": "of the commission of a crime is unnecessary to make out a conspiracy. Proof of the conspiracy focuses on the agreement, proof of the substantive crime focuses on the acts of the defendant. In United States v. Winter, 663 F.2d 1120, 1136 (1st Cir.1981), we rejected the contention that in order for a defendant to be found to have agreed to participate in a RICO conspiracy he must have actually committed two or more predicate crimes. Citing to United States v. Cruz, 568 F.2d 781, 782-83 (1st Cir.1978), and United States v. DeVincent, 632 F.2d at 159, we emphasized that a RICO conspiracy count is separate from the substantive count, and held that it “must charge as a minimum that each defendant agreed to commit two or more specified predicate crimes in addition to charging an agreement to participate in the conduct of an ‘enterprise’s’ affairs through a ‘pattern of racketeering activity.’ ” We have joined those circuits holding that the commission of “overt acts” is not required for a RICO conspiracy conviction. United States v. Angiulo, 847 F.2d 956, 964 (1st Cir.1988). Since no overt acts are required to be proved in a RICO conspiracy case, the conspiracy continues as long as its purposes have neither been abandoned nor accomplished. United States v. Coia, 719 F.2d 1120, 1124 (11th Cir.1983). The Second Circuit has already decided the identical issue now facing us. In United States v. Persico, 832 F.2d 705, it held that the statute of limitations for a RICO conspiracy, 18 U.S.C. § 1962(d), “should not begin to run until the accomplishment of or abandonment of the objectives of the conspiracy.” Id. at 713. The Second Circuit also held that in order to satisfy the statute of limitations for the substantive count, 18 U.S.C. § 1962(c), the government must prove that the defendant committed at least one predicate racketeering act within the limitations period of five years. Id. at 714. It held, and we agree, that this comports with the structure of section 1962, which treats conspiracies to violate RICO and substantive RICO offenses separately. The focus of" }, { "docid": "23017953", "title": "", "text": "raises two issues: first, that his conviction was not supported by evidence of a conspiracy to conduct an enterprise through a pattern of racketeering, and second, assuming such a conspiracy did exist, that there was insufficient evidence of Schwartz’s membership in it. We will consider these two contentions together. We examine the evidence in a light most favorable to the government to determine whether a jury could have resolved these issues against Schwartz beyond a reasonable doubt. We begin by noting the obvious. There is no question that a conspiracy existed to sell political favors to a fictitious Arab sheik, and that Schwartz was a member of that conspiracy. The evidence discussed above amply supports these conclusions. The question now under consideration is whether there was a RICO conspiracy, and whether Schwartz knowingly joined that RICO conspiracy. The Fifth Circuit has stated, and we agree, that “[t]he mere fact that a defendant works for a legitimate enterprise and commits racketeering acts while on the business premises does not establish that the affairs of the enterprise have been conducted ‘through’ a pattern of racketeering activity.” United States v. Cauble, 706 F.2d 1322, 1332 (5th Cir.1983). Instead, the government must show that a person “is enabled to commit the predicate offenses solely by virtue of his position in the enterprise or involvement in or control over the affairs of the enterprise; or ... the predicate offenses are related to the activities of that enterprise.’ ” United States v. Provenzano, 688 F.2d 194, 200 (3d Cir.), cert. denied, 459 U.S. 1071, 103 S.Ct. 492, 74 L.Ed.2d 634 (1982) (quoting United States v. Scotto, 641 F.2d 47, 54 (2d Cir.1980), cert. denied, 452 U.S. 961, 101 S.Ct. 3109, 69 L.Ed.2d 971 (1981)). In order to establish a conspiracy to violate section 1962(c), “the government must prove beyond a reasonable doubt that ... the individuals knowingly agreed to participate in the ‘enterprise’ through a pattern of racketeering.” United States v. Riccobene, 709 F.2d 214, 220-21 (3d Cir.), cert. denied, — U.S.-, 104 S.Ct. 157, 78 L.Ed.2d 145 (1983). With these principles in mind, we turn" }, { "docid": "22995525", "title": "", "text": "are related and they amount to, or pose threat of, continued illegal activity). The evidence of the ongoing succession of fraudulent claims presented in this case easily satisfies this requirement. The appellants do not dispute that each fraudulent claim is an act of mail fraud and that mail fraud is sufficient to constitute a predicate offense under the RICO statute. Similarly, the appellants do not contend that the fraudulent insurance claims were unrelated or so dissimilar as to lack the continuity necessary to establish a “pattern” of racketeering activity. The appellants simply contend that there was no evidence of fraud on the part of any of the appellants. We have concluded that this assertion is contrary to the record. D. RICO Conspiracy under Section 1962(d) — Count IX In addition to finding the individual Arsenal defendants liable for a RICO substantive violation with Aetna as the enterprise, the jury also found each of the individual Arsenal defendants liable for a RICO conspiracy violation under § 1962(d). Liability on this theory is proved against a defendant by showing (1) the existence of enterprise affecting interstate commerce, (2) that the defendant knowingly joined the conspiracy to participate in the conduct of the affairs of the enterprise, (3) that the defendant participated in the conduct of the affairs of the enterprise, and (4) that the defendant did so through a pattern of racketeering activity by agreeing to commit, or in fact committing, two or more predicate offenses. See Boylan, 898 F.2d at 241. Even though no party objected (on grounds relevant here) to the trial court’s charge to the jury on the elements of the alleged RICO conspiracy (as well as the elements of the alleged RICO substantive violations), we have examined the charge to the jury and determined it to be consistent with the elements of a RICO conspiracy as we have stated them here. In arriving at this formulation, we have been sensitive to the fact that earlier cases in this circuit used the phrase “knowingly joined the enterprise.” United States v. Angiulo, 847 F.2d 956, 964 (1st Cir.), cert. denied," }, { "docid": "18613409", "title": "", "text": "(c) of this section.” When read in conjunction with the language of § 1962(c), RICO’s conspiracy provision proscribes an agreement “to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity.” See United States v. Neapolitan, 791 F.2d 489, 495 (7th Cir.), cert. denied, 479 U.S. 940, 107 S.Ct. 422, 93 L.Ed.2d 372 (1986). The RICO conspiracy charge is proven if the defendant “embraced the objective of the alleged conspiracy,” and agreed to commit two predicate acts in furtherance thereof. Id. at 499. In this case, there was a conspiracy to conduct the Viola enterprise’s affairs through a pattern of racketeering activity, and Formi-sano committed two crimes that qualify as RICO predicate acts. The narrow issue thus presented is whether the government pro duced sufficient evidence to convince a jury beyond a reasonable doubt that Formisano knowingly associated with the Viola enterprise by agreeing to commit the predicate acts. See United States v. Rastelli, 870 F.2d 822, 828 (2d Cir.), cert. denied, 493 U.S. 982, 110 S.Ct. 515, 107 L.Ed.2d 516 (1989). We have held that in order to demonstrate a RICO conspirator’s knowledge of the RICO conspiracy, it is sufficient for the Government to show “that the defendant know[s] the general nature of the enterprise and know[s] that the enterprise extends beyond his individual role.” Id. at 828. This requirement stems from the elementary principle of conspiracy law that a person cannot be convicted of agreeing to participate in a conspiracy if he has no knowledge that the conspiracy even exists. See United States v. Falcone, 311 U.S. 205, 210-11, 61 S.Ct. 204, 207, 85 L.Ed. 128 (1940); United States v. Nusraty, 867 F.2d 759, 763 (2d Cir.1989). The required nexus between the defendant’s acts and the RICO conspiracy thus protects the defendant from being found guilty based on incidental or tenuous association with the enterprise and its members. See United States v. Winter, 663 F.2d 1120, 1136 (1st Cir.1981), cert. denied, 460 U.S. 1011, 103 S.Ct. 1249, 1250, 75 L.Ed.2d 479 (1983); United States v. Elliott, 571 F.2d 880," }, { "docid": "22466886", "title": "", "text": "of racketeering activity focused on obstruction of justice. On the record before us, we are hard pressed to see how this charge adds materially to the section 1962(c) claim. We explain briefly. To succeed, a RICO conspiracy claim must charge that defendants knowingly entered into an agreement to commit two or more predicate crimes. See Feinstein, 942 F.2d at 41 (“[E]ach defendant in a RICO conspiracy case must have joined knowingly in the scheme and been involved himself, directly or indirectly, in the commission of at least two predicate offenses.”); United States v. Angiulo, 847 F.2d 956, 964 (1st Cir.), cert. denied, 488 U.S. 852, 928, 109 S.Ct. 138, 314, 102 L.Ed.2d 110, 332 (1988); United States v. Winter, 663 F.2d 1120, 1136 (1st Cir.1981), cert. denied, 460 U.S. 1011, 103 S.Ct. 1249, 1250, 75 L.Ed.2d 479 (1983). Here, the conspiracy allegation is perfunctory. It fails to provide any specifics as to the details of the alleged conspiracy or the predicate acts committed in the pursuit thereof. Like RICO claims generally, see supra Part II, a RICO conspiracy claim that is alleged in wholly conclusory terms will not withstand a motion to dismiss. Cf. e.g., Brennan v. Hendrigan, 888 F.2d 189, 195 (1st Cir.1989) (conclusory allegations of conspiracy are impuissant to state a claim under 42 U.S.C. § 1983); Slotnick v. Staviskey, 560 F.2d 31, 33 (1st Cir.1977) (similar), cert. denied, 434 U.S. 1077, 98 S.Ct. 1268, 55 L.Ed.2d 783 (1978). The section 1962(d) claim is, therefore, insufficient as a matter of law. At any rate, even if appellant had adequately alleged the existence of an obstruction-of-justice conspiracy, her claim would not pass muster. An actionable claim under section 1962(d), like one under section 1962(c), requires that the complainant’s injury stem from a predicate act within the purview of 18 U.S.C. § 1961(1). Accord Reddy, 912 F.2d at 295 (upholding dismissal of RICO conspiracy charge because injury did not result from the commission of a specified predicate act); Hecht v. Commerce Clearing House, Inc., 897 F.2d 21, 25 (2d Cir.1990) (“[W]e hold that standing may be founded only upon injury" }, { "docid": "22948632", "title": "", "text": "court for eschewing difficult jurisdictional and venue-related issues in favor of ordering dismissal on the mer its. Cf., e.g., Kotler v. American Tobacco Co., 926 F.2d 1217, 1221 (1st Cir.1990) (“where an appeal presents a difficult jurisdictional issue, yet the substantive merits underlying the issue are facilely resolved in favor of the party challenging jurisdiction, the jurisdictional inquiry may be avoided”); see also Norton v. Mathews, 427 U.S. 524, 532, 96 S.Ct. 2771, 2775, 49 L.Ed.2d 672 (1976); Secretary of the Navy v. Avrech, 418 U.S. 676, 677-78, 94 S.Ct. 3039, 3039-40, 41 L.Ed.2d 1033 (1974). The path having been cleared, we proceed now to the merits of the appeals. III. ANALYSIS In this case, the plaintiffs sued under 18 U.S.C. § 1962(c) and (d). The operative statute is the former, which provides in pertinent part: It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise affairs through a pattern of racketeering activity.... 18 U.S.C. § 1962(c). To state a claim under section 1962(c), a plaintiff must allege each of the four elements required by the statute: “(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.” Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S.Ct. 3275, 3285, 87 L.Ed.2d 346 (1985). Section 1962(d) serves to make unlawful conspiracies to violate section 1962(c). In that regard, each defendant in a RICO conspiracy case must have joined knowingly in the scheme and been involved himself, directly or indirectly, in the commission of at least two predicate offenses. See United States v. Angiulo, 847 F.2d 956, 964 (1st Cir.) (necessary elements of RICO conspiracy charge are (1) the existence of an enterprise, (2) that each defendant knowingly joined the enterprise, and (3) that each defendant agreed to commit, or in fact committed, two or more specified predicate crimes as part of his participation in the enterprise), cert. denied, 488 U.S. 852, 109 S.Ct. 138, 102 L.Ed.2d 110," }, { "docid": "22995527", "title": "", "text": "488 U.S. 928, 109 S.Ct. 314, 102 L.Ed.2d 332 (1988); United States v. Winter, 663 F.2d 1120, 1136 (1st Cir.1981), cert. denied, 460 U.S. 1011, 103 S.Ct. 1249, 75 L.Ed.2d 479 (1983). In Boylan, the court first used this same phrase (“knowingly joined the enterprise ”), 898 F.2d at 241 (emphasis added), but in a passage following shortly thereafter referred to whether the defendants had knowingly joined the conspiracy. Id. (“Our inquiry thus reduces to whether such a conspiracy, knowingly joined by all defendants, was satisfactorily proven.”). In Boylan (and perhaps the earlier cases as well), this difference in phrasing was immaterial to the outcome of the ease. This was so in Boylan because the evidence was undisputed that all of the defendants alleged to have joined the conspiracy were indisputably employees of the Boston Police Department, the alleged enterprise. In the present case, on the other hand, plaintiff alleged that defendants who were not employees of Aetna (the enterprise in Count VIII) knowingly joined the conspiracy. For this reason we have addressed the issue more precisely in our formulation, stated above, of the elements of a RICO conspiracy, as applied to this case. We conclude that the issue we must consider is not whether the defendants knowingly joined the victim enterprise (as first phrased in Boylan) but (as later stated in that Opinion) whether the defendants knowingly joined a conspiracy. We conclude that the evidence is sufficient to support a finding that each of the appellants “knowingly joined” the § 1962(d) RICO conspiracy. The alleged § 1962(d) RICO conspiracy (Count IX) was a conspiracy to violate § 1962(c). The major difference between a violation of § 1962(c) itself (such as Count VIII) and a violation of § 1962(d) based on § 1962(c) (such as Count IX) is the additional required element that the defendant knowingly joined a conspiracy to violate § 1962(c). Another difference is that, to prove that a defendant violated § 1962(c), it is necessary for the plaintiff to prove two predicate offenses; under § 1962(d), in contrast, this is not an element required to be proved." }, { "docid": "22221100", "title": "", "text": "by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. Fed.R.Crim.P. 14. . There was evidence that Boylan participated in the scheme to the extent of endorsing one check. Moreover, there was arguably an indirect connection in that UL paid for Sheehan’s meals at Cafe Budapest, which was a \"client” of Connolly’s. In context, these trimtrams prove little of consequence. . Because the predicate crimes involved in the sundry bar/restaurant/nightclubs sub-conspiracies could warrantably be found to fit within the scope of the omnibus RICO conspiracy, and because the district court instructed the jury adequately on the multiple conspiracy rule, see supra Part III(B), we need only consider prejudice stemming from the UL variance. . The Appendix details the specific charges. To recapitulate briefly, we mention here only that Nave was paid money on numerous occasions by McGowan; Sheehan received many improper payments from Chaletzky; and both of them accepted gratuities from Tasse and the Blackes. .Indeed, one of defendants’ principal arguments is that the prejudice which they perceive was heightened because 28 of the first 29 trial witnesses dealt only with the UL affair. Although we think the lament is baseless, the circumstances illustrate the sort of tight compartmentalization which the district judge demanded throughout the trial. . In H.J. Inc. v. Northwestern Bell Telephone Co., — U.S. -, 109 S.Ct. 2893, 2901, 106 L.Ed.2d 195 (1989), decided after completion of defendants’ trial, the Court firmly rejected the notion that a single illegal scheme, even if conducted by multiple predicate acts, could never be enough, by itself, to make out a pattern of racketeering activity. . Although both Muskovsky and Grayson antedated H.J. Inc., there is not the slightest reason to believe that a shadow has been cast over them. The issue resolved in H.J. Inc., whether multiple schemes must be proved to show the requisite pattern of racketeering activity, is distinct from the broader question of what the evidence must ultimately demonstrate as to relatedness and continuity. Placed in perspective," }, { "docid": "6693573", "title": "", "text": "RICO conviction. We address each argument in turn. A. The Redacted Indictment Cincotti contends that the district court erred in denying his motion to dismiss the indictment. He argues that by eliminating an allegation of a particular “overt act” in the redacted indictment, the government made a substantive change in the RICO conspiracy count and that this deprived him of his constitutional right to be indicted by the Grand Jury. Our assessment of Cincotti’s position begins with a review of the requirements for a valid RICO conspiracy charge that we established in United States v. Winter, 663 F.2d 1120, 1136 (1st Cir.1981). In Winter, we held that to make out the elements of a RICO conspiracy charge the government must allege (1) the existence of an “enterprise,” (2) that the defendant knowingly joined the enterprise and (3) that the defendant agreed to commit, or in fact committed, two or more specified predicate crimes as part of his participation in the affairs of the enterprise. Id.; see also United States v. Turkette, 656 F.2d 5, 8 (1st Cir.), on remand from 452 U.S. 576, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981) (charges that defendant joined enterprise, knew of its criminal activities, and agreed to commit two illegal predicate offenses in furtherance of the enterprise legally sufficient to make out racketeering conspiracy count). We now add that an agreement to collect unlawful debts, or actual collection of unlawful debts, can alternatively constitute the third required element of a RICO conspiracy. We did not consider, in Winter, the function that “overt acts” might play in a RICO conspiracy indictment. We now join with those circuits squarely holding that the commission of “overt acts” is not required for a RICO conspiracy conviction. E.g., United States v. Coia, 719 F.2d 1120, 1123-24 (11th Cir.1983); United States v. Barton, 647 F.2d 224, 237 (2d Cir.1981). Since section 1962(d) does not, itself, require overt acts, there is no reason for us to imply such a requirement. Id. And we think the standards set forth in Winter are sufficient to the point of rendering superfluous any “overt act”" }, { "docid": "22995526", "title": "", "text": "by showing (1) the existence of enterprise affecting interstate commerce, (2) that the defendant knowingly joined the conspiracy to participate in the conduct of the affairs of the enterprise, (3) that the defendant participated in the conduct of the affairs of the enterprise, and (4) that the defendant did so through a pattern of racketeering activity by agreeing to commit, or in fact committing, two or more predicate offenses. See Boylan, 898 F.2d at 241. Even though no party objected (on grounds relevant here) to the trial court’s charge to the jury on the elements of the alleged RICO conspiracy (as well as the elements of the alleged RICO substantive violations), we have examined the charge to the jury and determined it to be consistent with the elements of a RICO conspiracy as we have stated them here. In arriving at this formulation, we have been sensitive to the fact that earlier cases in this circuit used the phrase “knowingly joined the enterprise.” United States v. Angiulo, 847 F.2d 956, 964 (1st Cir.), cert. denied, 488 U.S. 928, 109 S.Ct. 314, 102 L.Ed.2d 332 (1988); United States v. Winter, 663 F.2d 1120, 1136 (1st Cir.1981), cert. denied, 460 U.S. 1011, 103 S.Ct. 1249, 75 L.Ed.2d 479 (1983). In Boylan, the court first used this same phrase (“knowingly joined the enterprise ”), 898 F.2d at 241 (emphasis added), but in a passage following shortly thereafter referred to whether the defendants had knowingly joined the conspiracy. Id. (“Our inquiry thus reduces to whether such a conspiracy, knowingly joined by all defendants, was satisfactorily proven.”). In Boylan (and perhaps the earlier cases as well), this difference in phrasing was immaterial to the outcome of the ease. This was so in Boylan because the evidence was undisputed that all of the defendants alleged to have joined the conspiracy were indisputably employees of the Boston Police Department, the alleged enterprise. In the present case, on the other hand, plaintiff alleged that defendants who were not employees of Aetna (the enterprise in Count VIII) knowingly joined the conspiracy. For this reason we have addressed the issue" }, { "docid": "22575838", "title": "", "text": "that (3) the defendant knowingly joined the venture, and (4) embarked upon, or agreed to carry it out, by committing, or agreeing to the commission of, two or more predicate crimes in connection with his enterprise participation. See Boylan, 898 F.2d at 241; United States v. Torres Lopez, 851 F.2d 520, 528 (1st Cir.1988), cert. denied, — U.S.-, 109 S.Ct. 1144, 103 L.Ed.2d 204 (1989); United States v. Angiulo, 847 F.2d 956, 964 (1st Cir.), cert. denied, 488 U.S. 928, 109 S.Ct. 314, 102 L.Ed.2d 332 (1988). Inasmuch as the conspiracy charge in this case posits the commission of the very racketeering activity which count 2 charges substantively, the proof required to uphold the guilty verdict on Count 1 would perforce suffice to uphold the guilty verdict on Count 2. We concentrate, therefore, on Ruiz’s challenge to Count 1. 1. Applicability. Ruiz begins by arguing that Congress did not intend RICO to reach the type of conduct which occurred here. The statute, he exhorts, was enacted as an antidote to certain organized crime activities and was never intended to encompass acts such as Ruiz carried out to support his drug habit. The plea is bootless; the Court has explicitly rejected the notion that any such limiting principle constrains RICO’s scope. See H.J. Inc. v. Northwestern Bell Tel. Co., — U.S.-, 109 S.Ct. 2893, 2905, 106 L.Ed.2d 195 (1989) (“Congress ... chose to enact a more general statute ... not limited in application to organized crime.”); Sedima, 473 U.S. at 495, 105 S.Ct. at 3284 (“Section 1962 [was directed toward] ‘any person’ — not just mobsters”). RICO prosecutions need not have an “organized crime” nexus. 2. Pattern of Racketeering Activity. Defendant’s participation iii the LPD is admitted. Moreover, the parties stipulated that the LPD was an “enterprise” the conduct of which affected interstate commerce. Thus, we consider the alleged “pattern of racketeering activity.” Under RICO, proof of a pattern “requires at least two acts of racketeering activity,” 18 U.S.C. § 1961(5), commonly described as “predicate acts,” “predicate crimes,” or simply “predicates.” The jury convicted Ruiz on counts 7-10. It cannot be" }, { "docid": "22466885", "title": "", "text": "the commission of a RICO predicate act, as Nodine suggests, any such safe harbor would be severely circumscribed. In any event, we need not determine here the exact dimensions of the No-dine dictum. In this case, crediting appellant’s factual allegations, it is nonetheless readily apparent that Miranda was fired not as a means of obstructing justice, but in retaliation for her refusal to facilitate the cover-up. A retaliatory discharge simply does not violate 18 U.S.C. § 1510 — a statute which proscribes only those actions in the nature of bribery that a defendant may utilize to impede another person’s cooperation with federal law enforcement authorities. In short, Miranda has failed to bring her case within any recognized exception to the general rule governing instances of wrongful discharge. Her section 1962(c) count was, therefore, appropriately dismissed. See Pujol, 829 F.2d at 1205 (discussing RICO causal connection requirement in retaliatory discharge cases). B. Conspiracy to Obstruct Justice. Invoking 18 U.S.C. § 1962(d), the appellant also alleges that the individual defendants, with others, conspired to devise a scheme of racketeering activity focused on obstruction of justice. On the record before us, we are hard pressed to see how this charge adds materially to the section 1962(c) claim. We explain briefly. To succeed, a RICO conspiracy claim must charge that defendants knowingly entered into an agreement to commit two or more predicate crimes. See Feinstein, 942 F.2d at 41 (“[E]ach defendant in a RICO conspiracy case must have joined knowingly in the scheme and been involved himself, directly or indirectly, in the commission of at least two predicate offenses.”); United States v. Angiulo, 847 F.2d 956, 964 (1st Cir.), cert. denied, 488 U.S. 852, 928, 109 S.Ct. 138, 314, 102 L.Ed.2d 110, 332 (1988); United States v. Winter, 663 F.2d 1120, 1136 (1st Cir.1981), cert. denied, 460 U.S. 1011, 103 S.Ct. 1249, 1250, 75 L.Ed.2d 479 (1983). Here, the conspiracy allegation is perfunctory. It fails to provide any specifics as to the details of the alleged conspiracy or the predicate acts committed in the pursuit thereof. Like RICO claims generally, see supra Part II," }, { "docid": "22221024", "title": "", "text": "528 (1st Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 1144, 103 L.Ed.2d 204 (1989); see also United States v. Angiulo, 847 F.2d 956, 964 (1st Cir.), cert. denied, — U.S. -, 109 S.Ct. 314, 102 L.Ed.2d 332 (1988). In this case, the existence of an “enterprise” as that term is used in the RICO statutes is not open to serious question. Cf., e.g., Carroll v. Capalbo, 563 F.Supp. 1053, 1058 (D.R.I.1983) (“if it walks like a duck, and it squawks like a duck, it must be a duck”). And, if the evidence was sufficient to show a master conspiracy and defendants’ union therein, the third furculum of the test was plainly achieved. Our inquiry thus reduces to whether such a conspiracy, knowingly joined by all defendants, was satisfactorily proven. Factors to be considered in deciding whether one, or many, conspiracies were demonstrated include the nature, design, implementation, and logistics of the illegal activity; the participants’ modus operandi; the relevant geography; and the scope of coconspirator involvement. See United States v. Rivera-Santiago, 872 F.2d 1073, 1079 (1st Cir.), cert. denied, — U.S. -, 109 S.Ct. 3227, 106 L.Ed.2d 576 (1989); United States v. Drougas, 748 F.2d 8, 17 (1st Cir.1984). The conspiratorial agreement need not be express so long as its existence can plausibly be inferred from the defendants’ words and actions and the interdependence of activities and persons involved. United States v. Glenn, 828 F.2d 855, 857 (1st Cir.1987); United States v. Flaherty, 668 F.2d 566, 580 (1st Cir.1981). What counts is whether it can be said, on the totality of the evidence, that “all of the alleged coconspirators directed their efforts towards the accomplishment of a common goal or overall plan,” Drougas, 748 F.2d at 17; Flaherty, 668 F.2d at 580, agreeing in the bargain to participate in the enterprise’s affairs through the commission of at least two predicate crimes. To be guilty, colloguers need not be joined at the chest like Chang and Eng. A RICO conspiracy does not demand total fusion or that all defendants participate in all racketeering acts, know of the entire conspiratorial sweep," }, { "docid": "23058074", "title": "", "text": "a pattern of racketeering activities, specifically with intent to extort Appellants’ property interest in their business and practice of health care, all in violation of §§ 1962(c) and (d) of RICO. To state a claim under § 1962(c), a plaintiff must allege each of the four elements required by the statute: 1) conduct; 2) of an enterprise; 3) through a pattern; 4) of racketeering activity. Feinstein v. Resolution Trust Corp., 942 F.2d 34, 41 (1st Cir. 1991) (citing Sedima, S.P.R.L., 473 U.S. at 496, 105 S.Ct. at 3285). For claims under § 1962(d), a plaintiff must show that each defendant in the RICO conspiracy case joined knowingly in the scheme and was involved himself, directly or indirectly, in the commission of at least two predicate acts. Feinstein, 942 F.2d at 41 (citations omitted); see also United States v. Angiulo, 847 F.2d 956, 964 (1st Cir.) (necessary elements of RICO conspiracy charge are 1) existence of enterprise; 2) that each defendant knowingly joined the enterprise; and 3) that each defendant agreed to commit, or in fact committed, two or more predicate acts as part of his participation in enterprise), cert. denied, 488 U.S. 852, 109 S.Ct. 138, 102 L.Ed.2d 110 (1988). 1. Have Appellants established an “enterprise”? The term “enterprise” is defined in the RICO statute as including “any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” § 1961(4) (emphasis added). There are, therefore, two types of enterprises: legal entities and associations-in-fact. United States v. Turkette, 452 U.S. 576, 580-581, 101 S.Ct. 2524, 2527-28, 69 L.Ed.2d 246 (1981). The Supreme Court has explained that in order to prove a RICO claim, a plaintiff must show both an “enterprise” and a “pattern of racketeering activity.” Turkette, 452 U.S. at 583, 101 S.Ct. at 2528-29. The enterprise is an entity, a group of persons associated for a common purpose of engaging in a course of conduct. The pattern of racketeering activity, on the other hand, is a series of criminal acts as defined by the RICO statute. The" }, { "docid": "6693572", "title": "", "text": "denied that motion. After the government rested, Cincotti moved for judgment of acquittal on the ground that he could not be convicted for the alleged RICO violations because at the time of the alleged violations, this court had held, in United States v. Turkette, 632 F.2d 896 (1st Cir.1980), rev’d, 452 U.S. 576, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981), that RICO prohibited only racketeering activities that furthered the interests of legal enterprises, not illegal ones like the Patr-iarca Family. Even though that decision had been subsequently reversed by the Supreme Court, Cincotti contended that a conviction would violate his constitutional rights to due process because he would suffer from an ex post facto application of RICO. The district court denied that motion also. The jury subsequently found Cincotti guilty of both the RICO conspiracy and the substantive RICO violation. Cincotti now asserts the district court erred in denying his motion to dismiss the amended indictment and his motion for judgment of acquital. He also argues that there was insufficient evidence to support his substantive RICO conviction. We address each argument in turn. A. The Redacted Indictment Cincotti contends that the district court erred in denying his motion to dismiss the indictment. He argues that by eliminating an allegation of a particular “overt act” in the redacted indictment, the government made a substantive change in the RICO conspiracy count and that this deprived him of his constitutional right to be indicted by the Grand Jury. Our assessment of Cincotti’s position begins with a review of the requirements for a valid RICO conspiracy charge that we established in United States v. Winter, 663 F.2d 1120, 1136 (1st Cir.1981). In Winter, we held that to make out the elements of a RICO conspiracy charge the government must allege (1) the existence of an “enterprise,” (2) that the defendant knowingly joined the enterprise and (3) that the defendant agreed to commit, or in fact committed, two or more specified predicate crimes as part of his participation in the affairs of the enterprise. Id.; see also United States v. Turkette, 656 F.2d 5, 8" }, { "docid": "22221023", "title": "", "text": "changed hands. It was Shee-han who introduced McGowan to Nave. Sheehan spoke with a Board member about a case against McGowan while it was pending; later, accompanied by Nave, he told McGowan: “Don’t worry, it’s all set.” The 1270 received only a wrist slap; its license was not suspended. Sheehan had a plethora of other connections to the operation. He and Nave participated together in dealings with the Blackes; both were in the group which took money from Tasse; and Sheehan aided Connolly in furnishing escort services to Cafe Budapest. Having done little more' than scratch the tip of a fair-sized iceberg, we limn the legal parameters of our inquiry. In order to convict a defendant for a RICO conspiracy, the government must prove: (1) the existence of an ‘enterprise,’ (2) that the defendant knowingly joined the enterprise and (3) that the defendant agreed to commit, or in fact committed, two or more specified predicate crimes as part of his participation in the affairs of the enterprise. United States v. Torres Lopez, 851 F.2d 520, 528 (1st Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 1144, 103 L.Ed.2d 204 (1989); see also United States v. Angiulo, 847 F.2d 956, 964 (1st Cir.), cert. denied, — U.S. -, 109 S.Ct. 314, 102 L.Ed.2d 332 (1988). In this case, the existence of an “enterprise” as that term is used in the RICO statutes is not open to serious question. Cf., e.g., Carroll v. Capalbo, 563 F.Supp. 1053, 1058 (D.R.I.1983) (“if it walks like a duck, and it squawks like a duck, it must be a duck”). And, if the evidence was sufficient to show a master conspiracy and defendants’ union therein, the third furculum of the test was plainly achieved. Our inquiry thus reduces to whether such a conspiracy, knowingly joined by all defendants, was satisfactorily proven. Factors to be considered in deciding whether one, or many, conspiracies were demonstrated include the nature, design, implementation, and logistics of the illegal activity; the participants’ modus operandi; the relevant geography; and the scope of coconspirator involvement. See United States v. Rivera-Santiago, 872 F.2d 1073," }, { "docid": "22948633", "title": "", "text": "affairs through a pattern of racketeering activity.... 18 U.S.C. § 1962(c). To state a claim under section 1962(c), a plaintiff must allege each of the four elements required by the statute: “(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.” Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S.Ct. 3275, 3285, 87 L.Ed.2d 346 (1985). Section 1962(d) serves to make unlawful conspiracies to violate section 1962(c). In that regard, each defendant in a RICO conspiracy case must have joined knowingly in the scheme and been involved himself, directly or indirectly, in the commission of at least two predicate offenses. See United States v. Angiulo, 847 F.2d 956, 964 (1st Cir.) (necessary elements of RICO conspiracy charge are (1) the existence of an enterprise, (2) that each defendant knowingly joined the enterprise, and (3) that each defendant agreed to commit, or in fact committed, two or more specified predicate crimes as part of his participation in the enterprise), cert. denied, 488 U.S. 852, 109 S.Ct. 138, 102 L.Ed.2d 110, 488 U.S. 928, 109 S.Ct. 314, 102 L.Ed.2d 332 (1988); United States v. Winter, 663 F.2d 1120, 1136 (1st Cir.1981) (same), cert. denied, 460 U.S. 1011, 103 S.Ct. 1249, 75 L.Ed.2d 479 (1983); see also Banks v. Wolk, 918 F.2d 418, 421 (3d Cir.1990) (“no defendant can be liable under RICO unless he participated in two or more predicate offenses sufficient to constitute a pattern”). Our principal task here is to decide whether the district court erred when it ruled that plaintiffs’ complaint failed to demonstrate a pattern of racketeering activity on the appellees’ part. We afford plenary review, cognizant that “we may affirm a dismissal for failure to state a claim only if it appears, according to the facts alleged, that the plaintiff cannot recover on any viable theory.” Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 52 (1st Cir.1990). A. Were Predicate Acts Properly Pleaded? As the Court has recently stated, the definitional section of the RICO statute, 18 U.S.C. § 1961, “does not so much define a pattern of racketeering activity as state a" }, { "docid": "22221022", "title": "", "text": "chronicled and do not bear repetition. We add two lagniappes: (1) Nave did not allow Carey to retrieve his cut from McGowan. He did so himself, stating that he did not want “Carey and them picking mine up.” (2) Nave also met McGowan at court and made inquiries on his behalf concerning matters which might be pending against the 1270. The Blackes paid money to both Nave and Sheehan. In 1985-86, George Blacke paid them $100 apiece every other month “to stay in good with them and to be able to call them if I needed them.” The Blackes also began paying Kilroe and Boy-lan at Nave’s suggestion. Nave and Shee-han responded promptly whenever the Blackes sought their help. Nave also collected money from Tasse for himself and other officers (including Boylan, Connolly, and Sheehan). In exchange, the detectives gave special attention to Tasse’s businesses. If one of his bars was cited, Tasse would call Nave or Sheehan. 7. Sheehan. Sheehan was involved with Connolly in protecting Chaletzky’s clubs and often accompanied Connolly when money changed hands. It was Shee-han who introduced McGowan to Nave. Sheehan spoke with a Board member about a case against McGowan while it was pending; later, accompanied by Nave, he told McGowan: “Don’t worry, it’s all set.” The 1270 received only a wrist slap; its license was not suspended. Sheehan had a plethora of other connections to the operation. He and Nave participated together in dealings with the Blackes; both were in the group which took money from Tasse; and Sheehan aided Connolly in furnishing escort services to Cafe Budapest. Having done little more' than scratch the tip of a fair-sized iceberg, we limn the legal parameters of our inquiry. In order to convict a defendant for a RICO conspiracy, the government must prove: (1) the existence of an ‘enterprise,’ (2) that the defendant knowingly joined the enterprise and (3) that the defendant agreed to commit, or in fact committed, two or more specified predicate crimes as part of his participation in the affairs of the enterprise. United States v. Torres Lopez, 851 F.2d 520," }, { "docid": "22575837", "title": "", "text": "appellant’s sufficiency challenge. In this case, there is a considerable overlap. Count 2 is premised on 18 U.S.C. § 1962(c), which makes it “unlawful for any person employed by or associated with any enterprise ... af-fectpng] interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity....” To prove such a substantive RICO violation, the prosecution must show (1) conduct (2) of an “enterprise” (3) through a “pattern” (4) of “racketeering activity,” which in turn necessitates (5) the commission of two or more predicate crimes. See Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S.Ct. 3275, 3285, 87 L.Ed.2d 346 (1985). On the other hand, Count 1 is premised on 18 U.S.C. § 1962(d), which renders it “unlawful for any person to conspire to violate” certain provisions of RICO, including section 1962(c). To convict for such a RICO conspiracy, the prosecution must prove (1) that a common plan existed (2) to conduct an “enterprise” through a “pattern” of “racketeering activity,” that (3) the defendant knowingly joined the venture, and (4) embarked upon, or agreed to carry it out, by committing, or agreeing to the commission of, two or more predicate crimes in connection with his enterprise participation. See Boylan, 898 F.2d at 241; United States v. Torres Lopez, 851 F.2d 520, 528 (1st Cir.1988), cert. denied, — U.S.-, 109 S.Ct. 1144, 103 L.Ed.2d 204 (1989); United States v. Angiulo, 847 F.2d 956, 964 (1st Cir.), cert. denied, 488 U.S. 928, 109 S.Ct. 314, 102 L.Ed.2d 332 (1988). Inasmuch as the conspiracy charge in this case posits the commission of the very racketeering activity which count 2 charges substantively, the proof required to uphold the guilty verdict on Count 1 would perforce suffice to uphold the guilty verdict on Count 2. We concentrate, therefore, on Ruiz’s challenge to Count 1. 1. Applicability. Ruiz begins by arguing that Congress did not intend RICO to reach the type of conduct which occurred here. The statute, he exhorts, was enacted as an antidote to certain organized crime activities and" }, { "docid": "2323515", "title": "", "text": "from Yerardi. The jury found Shifman guilty of both violating RICO and conspiring to violate RICO. The jury also found Shifman guilty on all four counts of aiding and abetting the making of extortionate extensions of credit. The jury acquitted Shifman on the charge that he had aided and abetted the collection of an extension of credit by extortionate means. Shifman was sentenced to 51 months imprisonment. This appeal followed. II. A. Sufficiency of the Evidence Shifman contends that the evidence was insufficient as a matter of law to support his convictions. “In reviewing sufficiency-claims, we consider the evidence ‘in the light most favorable to the prosecution’ and then ask whether the evidence “would allow a rational jury to determine beyond a reasonable doubt that the defendant] w[as] guilty as charged.’ ” United States v. Hurley, 63 F.3d 1, 11 (1st Cir.l995)(quoting United States v. Mena-Robles, 4 F.3d 1026, 1031 (1st Cir. 1993)), cert. denied, — U.S. — —, 116 S.Ct. 1322, 134 L.Ed.2d 474 (1996). 1. The RICO Counts For a defendant to be found guilty of a substantive RICO violation, the government must prove beyond a' reasonable doubt that (1) the “enterprise affeet[ed] interstate or foreign commerce, (2) that the defendant under consideration associated with the enterprise, (3) that [the] defendant participated in the conduct of the enterprise’s affairs, and (4) that [the] defendant’s participation was through a pattern of racketeering activity.” Aetna Cas. Sur. Co. v. P & B Autobody, 43 F.3d 1546, 1558 (1st Cir.1994). For a defendant to be found guilty of conspiring to violate RICO, the government must prove “(1) the existence of an enterprise affecting interstate commerce, (2) that the defendant knowingly joined the conspiracy to participate in the conduct of the affairs of the enterprise, (3) that the defendant participated in the conduct of the affairs of the enterprise, and (4) that the defendant did so through a pattern of racketeering activity by agreeing to commit, or in fact committing, two or more predicate offenses.” Id. at 1561. Hence liability for a substantive RICO violation under § 1962(c) and liability for a" } ]

[ { "docid": "22377943", "title": "", "text": "at 1335; see McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. By making out this “minimal” prima facie case, even without evidence of discrimination, the plaintiff “creates a presumption that the employer unlawfully discriminated,” Fisher, 114 F.3d at 1335 (internal quotation marks omitted), and thus places the burden of production on the employer to proffer a nondiscriminatory reason for its action. If the defendant fails to discharge the burden by presenting a nondiscriminatory reason, the plaintiff will prevail (assuming the other aspects of the prima facie case are not contested). Thus, aided by the McDonnell Douglas presumption, which is designed to force employers to come forward with reasons, a plaintiff who proves the minimal prima facie case is entitled to prevail as a matter of law even without evidence that would support a reasonable finding of discriminatory motivation, if the employer does not come forward with a reason. See St. Mary’s, 509 U.S. at 506-10, 113 S.Ct. 2742; Burdine, 450 U.S. at 254, 101 S.Ct. 1089; Fisher, 114 F.3d at 1335. On the other hand, once the employer “articulates a non-discriminatory reason” for its actions, Fisher, 114 F.3d at 1336, the presumption completely “drops out of the picture.” St. Mary’s, 509 U.S. at 510-11, 113 S.Ct. 2742. “‘[T]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated ... remains at all times with the plaintiff.’” St. Mary’s, 509 U.S. at 507, 113 S.Ct. 2742 (quoting Burdine, 450 U.S. at 253, 101 S.Ct. 1089). Thus, once the employer has proffered its nondiscriminatory reason, the employer will be entitled to summary judgment (or to the overturning of a plaintiffs verdict) unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination. See St. Mary’s, 509 U.S. at 510-11, 113 S.Ct. 2742; Burdine, 450 U.S. at 255-56,101 S.Ct. 1089; Fisher, 114 F.3d at 1336. In sum, our holding in Fisher was that once the employer has proffered a reason for its action, all presumptions and special rules drop away; a case under Title VII becomes like any other case in that the plaintiff, in" } ]

[ { "docid": "22425496", "title": "", "text": "a plaintiffs verdict) unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination. 233 F.3d 149, 153-54 (2d Cir.2000) (emphasis added) (internal quotations, alteration, and citations omitted). Central to this appeal is whether Joseph has suffered an “adverse employment action.” “A plaintiff sustains an adverse employment action if he or she endures a ‘materially adverse change’ in the terms and conditions of employment.” Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir.2000). “An ‘adverse employment action’ is one which is more disruptive than a mere inconvenience or an alteration of job responsibilities.” Terry, 336 F.3d at 138 (internal quotations and citation omitted). “Examples of materially adverse changes include termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices unique to a particular situation.” Id. (internal quotations, alterations, and citation omitted). II. A. Joseph first argues that he suffered an adverse employment action when he was placed on administrative leave with pay during the pendency of his criminal case and for approximately five months thereafter. Four of our sister circuits have considered whether placement on administrative leave, with pay, during an investigation constitutes an adverse employment action. Each court held that it did not. See Singletary v. Mo. Dep’t of Corr., 423 F.3d 886, 889, 892 (8th Cir.2005) (eighty-nine day suspension pending investigation); Peltier v. United States, 388 F.3d 984, 986, 988 (6th Cir.2004) (administrative leave pending internal investigation and grand jury proceedings); Von Gunten v. Maryland, 243 F.3d 858, 869 (4th Cir.2001) (short administrative leave pending investigation of complaint); Breaux v. City of Garland, 205 F.3d 150, 154-55, 158 (5th Cir.2000) (administrative leave pending Internal Affairs investigations). None of these cases, as the one before us, also involved pending criminal charges. These circuits have reasoned that the terms and conditions of employment ordinarily include the possibility that an employee will be subject to an employer’s disciplinary policies in appropriate circumstances. See, Von Gunten, 243 F.3d at 869 (The “terms, conditions, or" }, { "docid": "22714922", "title": "", "text": "he was qualified for the position; 3) he was subject to an adverse employment action; and 4) the adverse action occurred under “circumstances giving rise to an inference of discrimination.” See Roge v. NYP Holdings, Inc., 257 F.3d 164, 168 (2d Cir.2001). Similarly, to establish a claim of racial or gender discrimination under Title VII, a claimant must show that: 1) he belonged to a protected class; 2) he was qualified for the position; 3) he suffered an adverse employment action; and 4) the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent. See Collins v. New York City Transit Auth., 305 F.3d 113, 118 (2d Cir.2002). An “adverse employment action” is one which is “more disruptive than a mere inconvenience or an alteration of job responsibilities.” Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir.2000) (quoting Crady v. Liberty Nat’l Bank & Trust Co. of Ind., 993 F.2d 132, 136 (7th Cir.1993)). Examples of materially adverse changes include “termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits) significantly diminished material responsibilities, or other indices ... unique to a particular situation.” Id. (quoting Crady, 993 F.2d at 136). Under either statute, once a plaintiff has established a prima facie case, the burden shifts to the defendant, which is required to offer a legitimate, non-discriminatory rationale for its actions. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) (Title VII); Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir.2000) (ADEA). Thus, once the defendant has' made a showing of a neutral reason for the complained of action, “to defeat summary judgment ..: the plaintiffs admissible evidence must show circumstances that would be sufficient to permit a rational finder of fact to infer that the defendant’s employment decision was more likely than not based in whole or in part on discrimination.” Stern, 131 F.3d at 312. 1. Discrimination as to Vacancy 92-59 We find that Terry has presented sufficient evidence to" }, { "docid": "11198794", "title": "", "text": "To establish a prima facie case of employment discrimination, a plaintiff must establish four elements. First, he must demonstrate that he belonged to a protected class. Collins v. New York City Transit Auth., 305 F.3d 113, 118 (2d Cir.2002). Second, he must show that he was qualified for the position. Id. Third he must prove that he suffered an adverse employment action. Id. Fourth, he must show that the adverse employment action occurred under circumstances giving rise to an inference of discrimination. Id. O’Hazo has satisfied the first element of the prima facie case because he is sixty-two years old and a male, both protected classes under Title VII, ADEA, and CFE-PA. The second element is also satisfied because the parties do not dispute that O’Hazo was qualified for the position. The third element is satisfied as to O’Hazo’s termination, for the Health District concedes that O’Hazo’s termination qualifies as an adverse employment action. Nevertheless, the Court does not believe that the four remaining incidents of allegedly discriminatory treatment, namely, the Compensatory Time Denial Meeting, the December Supervisory Memorandum, the Giamatti Little League Complex Meeting, and the Century Buffet Incident, reasonably qualify as adverse employment actions here. “A plaintiff sustains an adverse employment action if he or she endures a ‘materially adverse change’ in the terms and conditions of employment.” Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir.2000). A “materially adverse change” in the terms or conditions of employment must be “more disruptive than a mere inconvenience or an alteration of job responsibilities.” Id. (internal quotation marks omitted); see also Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir.1997) (noting that Title VII does not provide redress for every “minor, ministerial stumbling block”). Conduct that the Second Circuit has deemed sufficiently disadvantageous to constitute an adverse employment action in employment discrimination cases includes “a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other in-dices ... unique to a particular situation.” Galabya, 202 F.3d" }, { "docid": "22959606", "title": "", "text": "311, *8. The question remains what a plaintiff must allege to meet this minimal burden. The starting point is the statute. See Iqbal, 556 U.S. at 675, 129 S.Ct. 1937 (“[W|e begin by taking note of the elements a plaintiff must plead to state a claim-”). Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(l). Title VII thus requires a plaintiff asserting a discrimination claim to allege two elements: (1) the employer discriminated against him (2) because of his race, color, religion, sex, or national origin. Id. As to the first element, an employer discriminates against a plaintiff by taking an adverse employment action against him. “A plaintiff sustains an adverse employment action if he or she endures a materially adverse change in the terms and conditions of employment.” Galabya v. N.Y.C. Bd. of Educ., 202 F.3d 636, 640 (2d Cir.2000) (internal quotation marks omitted). “An adverse employment action is one which is more disruptive than a mere inconvenience or an alteration of job responsibilities.” Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir.2003) (internal quotation marks omitted). “Examples of materially adverse changes include termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices unique to a particular situation.” Id. (alteration omitted) (internal quotation marks omitted). We have held that the assignment of “a disproportionately heavy workload” can constitute an adverse employment action. Feingold, 366 F.3d at 152-53. As to the second element, an action is “because of’ a plaintiffs race, color, religion, sex, or national origin where it was a “substantial” or “motivating” factor contributing to the employer’s decision to take, the action. See Price Waterhouse v. Hopkins, 490 U.S. 228, 249, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (plurality opinion), superseded on other grounds by statute," }, { "docid": "19828469", "title": "", "text": "evidence to support a rational finding that the legitimate, non-discriminatory reasons proffered by the defendant were false, and that more likely than not discrimination was the real reason for the employment action. In short, the question becomes whether the evidence, taken as a whole, supports a sufficient rational inference of discrimination. To get to the jury, it is not enough to disbelieve the employer; the factfinder must also believe- the plaintiffs explanation of intentional discrimination. Weinstock, 224 F.3d at 42 (internal quotation marks, citations, and alterations omitted). 1. Prima Facie Case It is not disputed that Mr. Abdallah was a member of a protected group, or that he was qualified for the position he held when he was terminated. However, defendant contends plaintiff has failed to establish that being subjected to two investigative interviews, a polygraph examination, and reassignment to restricted duty caused him to suffer an adverse employment ac tion, or that any adverse employment action occurred under circumstances giving rise to an inference of discrimination, a. Adverse Employment Action An employee sustains an adverse employment action if he or she “endures a materially adverse change in the terms and conditions of employment” that is “more disruptive than a mere inconvenience or an alteration of job responsibilities.” Galabya v. New York City Bd. of Ed., 202 F.3d 636, 640 (2d Cir.2000) (citations and internal quotation marks omitted) (overruled on other grounds). Examples of materially adverse employment actions include “termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices ... unique to a particular situation.” Feingold, 366 F.3d at 152 (citations and internal quotation marks omitted). “A material adverse change is one that has an attendant negative result, a deprivation of a position or an opportunity. While adverse employment actions extend beyond readily quantifiable losses, not everything that makes an employee unhappy is an actionable adverse action.” Pimentel v. City of New York, 2002 WL 977535 at *3 (S.D.N.Y. May 14, 2002) (internal quotations and citations omitted), aff'd, 74 Fed.Appx. 146" }, { "docid": "17276150", "title": "", "text": "prima facie case of discrimination,- a plaintiff must show (1) that he or she is a member of a protected class, (2) that he or she was qualified for the position in question, (3). that he or she suffered an adverse employment action, and (4) that the adverse employment action occurred under circumstances giving rise to an inference of discrimination. See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); McDonnell Douglas, 411 U.S. at 802-03, 93 S.Ct. 1817; Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir.2003); Collins v. New York City Transit Auth., 305 F.3d 113,118 (2d Cir.2002); Weinstock v. Columbia Univ., 224 F.3d. 33, 42 (2d Cir.2000). As the Court of Appeals for the Second Circuit has recently observed, An “adverse employment action” is one which is “ ‘more disruptive than a mere inconvenience or an alteration of job responsibilities.”’ Galabya v. New York City Bd. of Edue., 202 F.3d 636, 640 (2d Cir.2000) (quoting Cmdy v. Liberty Nat’l Bank & Trust Co. oflnd., 993 F.2d 132, 136 (7th Cir.1993)). Examples of materially adverse employment actions include “ ‘termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices ... unique to a particular situation.’ ” Id. (quoting Crady, 993 F.2d at 136). Feingold v. New York, 366 F.3d 138, 152 (2d Cir.2004); accord Sanders v. New York City Human Resources Admin., 361 F.3d 749, 755 (2d Cir.2004). Where a plaintiff makes out a prima facie case, the defendant may then rebut the plaintiffs showing by articulating a legitimate, non-discriminatory reason for the employment action in question. See Burdine, 450 U.S. at 254, 101 S.Ct. 1089; Weinstock, 224 F.3d at 42. Upon defendant’s articulation of such a reason, the presumption of discrimination arising with the establishment of the prima facie case “drops from the picture,” and for the case to continue, the plaintiff must present evidence that the proffered reason is “a mere pretext for actual discrimination.” Wein-stock, 224 F.3d" }, { "docid": "6469023", "title": "", "text": "fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.’” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). “[0]nce a minimal prima facie case is proved and the employer’s nondiscriminatory explanation has been given, the McDonnell Douglas presumptions disappear from the case, and the governing standard is simply whether the evidence, taken as a whole, is sufficient to support a reasonable inference that prohibited discrimination occurred.” James v. New York Racing Ass’n, 233 F.3d 149, 156 (2d Cir.2000). The court must apply a case-by-case approach, “examining the entire record to determine whether the plaintiff could satisfy [her] ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff.” Roge v. NYP Holdings, Inc., 257 F.3d 164, 168 (2d Cir.2001) (quotation marks omitted). 1. Adverse Employment Actions Adverse employment actions include “discharge, refusal to hire, refusal to promote, demotion, reduction in pay, and reprimand.” Morris v. Lindau, 196 F.3d 102, 110 (2d Cir.1999). The Second Circuit has also held that lesser actions may qualify, but has not provided a bright-line rule with regard to such lesser actions. Id. “Because there are no bright line rules as to which employment actions meet the threshold for ‘adverse,’ courts must make this determination on a case-by-case basis.” Wilburn v. Fleet Fin. Group, Inc., 170 F.Supp.2d 219, 237 (D.Conn.2001)(quoting Richardson, 180 F.3d at 446). To sustain an adverse employment action, a plaintiff must “endure[ ] a ‘materially adverse change’ in the terms and conditions of employment.” Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir.2000)(quoting Richardson, 180 F.3d at 446). In order for the action to be “ ‘materially adverse’, a change in working conditions must be ‘more disruptive than a mere inconvenience or an alteration of job responsibilities.’” Id. (quoting Crady v. Liberty Nat’l Bank and Trust Co. of Indiana, 993 F.2d 132, 136 (7th Cir.1993)). A “ ‘material adverse change’" }, { "docid": "22993761", "title": "", "text": "supporting the verdict that the jury’s findings could only have been the result of sheer surmise and conjecture,” or where there is “such an overwhelming amount of evidence” in favor of the moving party that fair minded jurors could not reasonably arrive at a verdict against the movant. Phillips v. Bowen, 278 F.3d 103, 108 (2d Cir.2002). B. Requirements of Plaintiff s Proof Using Circumstantial Evidence Title VII makes an employer liable for discriminating against its employees based on race or gender, or for retaliating against an employee for having challenged such discrimination. 42 U.S.C. §§ 2000e-2(a), 2000e-3(a) (2000). Courts recognize that most discrimination and retaliation is not carried out so openly as to provide direct proof of it. Accordingly, an aggrieved party may use circumstantial evidence to assert a prima facie case of discrimination (or retaliation) by alleging “1) [she] belonged to a protected class; 2)[she] was qualified for the position; 3)[she] suffered an adverse employment action; and 4) the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent.” Terry v. Ashcroft, 336 F.3d 128, 138, 141 (2d Cir.2003). Naturally, the employee has the burden to prove that his or her employer engaged in such conduct. Once the plaintiffs burden has been met, “the burden shifts to the defendant, which is required to offer a legitimate, non-discriminatory rationale for its actions.” Id. We define an adverse employment action as a “materially adverse change” in the terms and conditions of employment. See Richardson v. New York State Dep’t of Corr. Serv., 180 F.3d 426, 446 (2d Cir.1999). To be materially adverse, a change in working conditions must be “more disruptive than a mere inconvenience or an alteration of job responsibilities.” Terry, 336 F.3d at 138. Examples of such a change include “termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices unique to a particular situation.” Id. Having defined adverse employment action, we consider the evidence that appellant thinks entitles her to the relief of judgment" }, { "docid": "19781765", "title": "", "text": "his compensation, terms, conditions, or privileges of employment, because of such individual’s race ... or national origin.”); 42 U.S.C. § 1983; N.Y. Exec. Law § 296(l)(a) (“It shall be an unlawful discriminatory practice ... [f]or an employer ..., because of an individual’s age, race, ... [or] national origin, ... to discriminate against such individual in compensation or in terms, conditions or privileges of employment.”); N.Y.C. Admin. Code § 8-107(a) (same). 2. Adverse Employment Action In order to constitute an adverse employment action, defendants must effect a “materially adverse change” in the terms and conditions of employment. See Galabya v. N.Y.C. Bd. of Educ., 202 F.3d 636, 640 (2d Cir.2000); Richardson v. N.Y. State Dep’t of Corr. Serv., 180 F.3d 426, 446 (2d Cir.1999). Such a change must be “more disruptive than a mere inconvenience or an alteration of job responsibilities.” Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir.2003) (internal citations and quotations omitted). Adverse employment actions include “termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices ... unique to a particular situation.” Id. 3. Satisfactory Performance “Whether job performance was satisfactory depends on the employer’s criteria for the performance of the job — not the standards that may seem reasonable to the jury or judge.” Thornley v. Penton Pub., Inc., 104 F.3d 26, 29 (2d Cir.1997). Negative performance evaluations can indicate that the plaintiff was not satisfactorily performing her duties. Compare Gladwin v. Pozzi, 403 Fed.Appx. 603, 606 (2d Cir.2010) (“[Plaintiff] was never given a negative performance evaluation, and the record shows she was deemed by co-workers as ‘very effective,’ ‘committed’ and ‘very efficient,’ thus satisfying the second prong in demonstrating she was perform ing her duties satisfactorily.”); with Mastrolillo v. Connecticut, 352 Fed.Appx. 472, 473-74 (2d Cir.2009) (“[Plaintiff] did not establish that she performed her job satisfactorily, given the negative performance evaluations and her admitted lack of interest in teaching certain advanced level courses.”). 4. Inference of Discrimination “A showing of disparate treatment — that is, a showing" }, { "docid": "22944900", "title": "", "text": "128, 137-38 (2d Cir.2003) (citing Roge v. NYP Holdings, Inc., 257 F.3d 164, 168 (2d Cir.2001) (ADEA), and Collins v. N.Y. City Transit Auth., 305 F.3d 113, 118 (2d Cir.2002) (Title VII)). Once a plaintiff has established a prima facie case of age or gender discrimination, the burden shifts to the defendant to “ ‘articulate some legitimate, nondiscriminatory reason for the’ [adverse act].” Patterson v. County of Oneida, 375 F.3d 206, 221 (2d Cir.2004) (quoting O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 311, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996)) (Title VII); see, e.g., D’Cunha v. Genovese/Eckerd Corp., 479 F.3d 193, 195 (2d Cir.2007) (ADEA). If the defendant carries that burden, “the burden shifts back to the plaintiff to demonstrate by competent evidence that ‘the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.’ ” Patterson, 375 F.3d at 221 (quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). However, “ ‘[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.’ ” Id. (quoting Burdine, 450 U.S. at 253, 101 S.Ct. 1089). 1. Adverse Employment Action Plaintiff first challenges the district court’s determination that the non-renewal of her contract did not constitute an adverse employment action as a matter of law. An adverse employment action, for purposes of both the ADEA and Title VII, is “ ‘more disruptive than a mere inconvenience or an alteration of job responsibilities’ ” and can include “ ‘termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices ... unique to a particular situation.’” Galabya v. N.Y. City Bd. of Educ., 202 F.3d 636, 640 (2d Cir.2000) (quoting Crady v. Liberty Nat’l Bank & Trust Co. of Ind., 993 F.2d 132, 136 (7th Cir.1993)) (omission in original). The district court, in its Rule 12(b)(6) dismissal of plaintiffs discrimination claims, determined that despite" }, { "docid": "16375895", "title": "", "text": "(“NYEL”) Section 290. Discrimination suits brought under Title VII follow the familiar burden-shifting regime established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). First, the plaintiff must make out a prima facie case of discrimination by showing that (1) he belongs to a protected class; (2) he suffered an adverse employment action; and (3) the circumstances surrounding the adverse employment action give rise to an inference of discrimination. Brown v. Coach Stores, Inc., 163 F.3d 706, 709 (2d Cir.1998) (citing McDonnell Douglas). The burden then shifts to the employer to show a legitimate, nondiscriminatory reason for the adverse employment action. If the employer does so, the final burden remains with the plaintiff to show that the nondiscriminatory reason asserted by the employer was pretextual and that the employer discriminated against him. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143-44, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Although Title VII does not define adverse employment actions “solely in terms of job termination or reduced wages and benefits,” Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir.1997), it “must be more disruptive than a mere inconvenience or an alteration of job responsibilities.” Galabya v. New York City Bd. Of Educ., 202 F.3d 636, 640 (2d Cir.2000) (citation omitted); see also Richardson v. New York State Dep’t of Corr. Serv., 180 F.3d 426, 446 (2d Cir.1999). An employee suffers an adverse employment action if a “materially adverse change” in the terms and conditions of his employment takes place. Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir.2000). As the court explained in Monica v. New York City Off-Track Betting Corp., No. 93 Civ. 6371(RPP), 1995 WL 117879 (S.D.N.Y.1995), [а] materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation. Monica, 1995 WL 117879 at *8; see also Davis v. City University" }, { "docid": "11198792", "title": "", "text": "analyzed using the familiar burden-shifting framework set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Claims of age discrimination under the ADEA are analyzed “under the same burden shifting framework as claims brought pursuant to Title VII_” Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir.2001). In addition, “[t]he Connecticut Supreme Court looks to federal precedent when interpreting and enforcing CFEPA.” Kelley v. Sun Microsystems, Inc., 520 F.Supp.2d 388, 400 (D.Conn.2007) (internal quotation marks omitted); see Levy v. Comm’n of Human Rights and Opportunities, 236 Conn. 96, 103, 671 A.2d 349 (1996) (“Although this case is based solely on Connecticut law, we review federal precedent concerning employment discrimination for guidance in enforcing our own anti-discrimination statutes.”) Accordingly, the Court will analyze O’Hazo’s Title VII sex discrimination, ADEA age discrimination, and CFEPA sex and age discrimination claims together. See Williams v. Quebecor World Infiniti Graphics, 456 F.Supp.2d 372, 383 (D.Conn.2006). The Second Circuit has described the McDonnell Douglas burden-shifting framework as follows: At the outset, a plaintiff can avoid dismissal by presenting the “minimal” pri-ma facie case defined by the Supreme Court in McDonnell Douglas. This requires no evidence of discrimination.... By making out this “minimal” prima fa-cie case, even without evidence of discrimination, the plaintiff creates a presumption that the employer unlawfully discriminated, ... and thus places the burden of production on the employer to proffer a nondiscriminatory reason for its action. On the other hand, once the employer articulates a non-discriminatory reason for its actions, ... the presumption completely drops out of the picture.... The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated ... remains at all times with the plaintiff.... Thus, once the employer has proffered its nondiscriminatory reason, the employer will be entitled to summary judgment (or to the overturning of a plaintiffs verdict) unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination. James v. N.Y. Racing Ass’n, 233 F.3d 149, 153-54 (2d Cir.2000) (internal quotations marks and citations omitted)." }, { "docid": "22425495", "title": "", "text": "in James v. New York Racing Ass’n: At the outset, a plaintiff can avoid dismissal by presenting the “minimal” pri-ma facie case defined by the Supreme Court in McDonnell Douglas. This requires no evidence of discrimination. It is satisfied by a showing of membership in a protected class, qualification for the position, an adverse employment action, and preference for a person not of the protected class. By making out this “minimal” prima facie case, even without evidence of discrimination, the plaintiff creates a presumption that the employer unlawfully discriminated, and thus places the burden of production on the employer to proffer a nondiscriminatory reason for its action.... On the other hand, once the employer articulates a non-discriminatory reason for its actions, the presumption completely drops out of the picture. The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated [against the plaintiff] remains at all times with the plaintiff. Thus, once the employer has proffered its nondiscriminatory reason, the employer will be entitled to summary judgment (or to the overturning of a plaintiffs verdict) unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination. 233 F.3d 149, 153-54 (2d Cir.2000) (emphasis added) (internal quotations, alteration, and citations omitted). Central to this appeal is whether Joseph has suffered an “adverse employment action.” “A plaintiff sustains an adverse employment action if he or she endures a ‘materially adverse change’ in the terms and conditions of employment.” Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir.2000). “An ‘adverse employment action’ is one which is more disruptive than a mere inconvenience or an alteration of job responsibilities.” Terry, 336 F.3d at 138 (internal quotations and citation omitted). “Examples of materially adverse changes include termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices unique to a particular situation.” Id. (internal quotations, alterations, and citation omitted). II. A. Joseph first argues that he suffered an adverse employment action when he was placed" }, { "docid": "11198793", "title": "", "text": "as follows: At the outset, a plaintiff can avoid dismissal by presenting the “minimal” pri-ma facie case defined by the Supreme Court in McDonnell Douglas. This requires no evidence of discrimination.... By making out this “minimal” prima fa-cie case, even without evidence of discrimination, the plaintiff creates a presumption that the employer unlawfully discriminated, ... and thus places the burden of production on the employer to proffer a nondiscriminatory reason for its action. On the other hand, once the employer articulates a non-discriminatory reason for its actions, ... the presumption completely drops out of the picture.... The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated ... remains at all times with the plaintiff.... Thus, once the employer has proffered its nondiscriminatory reason, the employer will be entitled to summary judgment (or to the overturning of a plaintiffs verdict) unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination. James v. N.Y. Racing Ass’n, 233 F.3d 149, 153-54 (2d Cir.2000) (internal quotations marks and citations omitted). To establish a prima facie case of employment discrimination, a plaintiff must establish four elements. First, he must demonstrate that he belonged to a protected class. Collins v. New York City Transit Auth., 305 F.3d 113, 118 (2d Cir.2002). Second, he must show that he was qualified for the position. Id. Third he must prove that he suffered an adverse employment action. Id. Fourth, he must show that the adverse employment action occurred under circumstances giving rise to an inference of discrimination. Id. O’Hazo has satisfied the first element of the prima facie case because he is sixty-two years old and a male, both protected classes under Title VII, ADEA, and CFE-PA. The second element is also satisfied because the parties do not dispute that O’Hazo was qualified for the position. The third element is satisfied as to O’Hazo’s termination, for the Health District concedes that O’Hazo’s termination qualifies as an adverse employment action. Nevertheless, the Court does not believe that the four remaining incidents of allegedly discriminatory treatment, namely, the Compensatory Time Denial Meeting," }, { "docid": "19781764", "title": "", "text": "performing her duties; (3) she suffered an adverse employment action; and (4) the circumstances give rise to an inference of discrimination. E.g. Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir.2000); Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir.2000). A claimant bringing suit under the ADEA must further demonstrate that age was not just a motivating factor behind the adverse action, but the “but-for” cause of it. Gross v. FBL Financial Services, Inc., 557 U.S. 167, 129 S.Ct. 2343, 2350-51, 174 L.Ed.2d 119 (2009). The plaintiffs burden of proof at this stage is minimal. See Graham, 230 F.3d at 39. 1. Protected Class Sotomayor is a non-Caucasian woman over fifty of Hispanic national origin. Defendants do not dispute that plaintiff is a member of a protected class under the relevant statutes. See, e.g., 29 U.S.C. § 631(a) (protecting “individuals who are at least 40 years of age”); 42 U.S.C. § 2000e-2(a)(l) (“It shall be an unlawful employment practice for an employer ... to ... discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race ... or national origin.”); 42 U.S.C. § 1983; N.Y. Exec. Law § 296(l)(a) (“It shall be an unlawful discriminatory practice ... [f]or an employer ..., because of an individual’s age, race, ... [or] national origin, ... to discriminate against such individual in compensation or in terms, conditions or privileges of employment.”); N.Y.C. Admin. Code § 8-107(a) (same). 2. Adverse Employment Action In order to constitute an adverse employment action, defendants must effect a “materially adverse change” in the terms and conditions of employment. See Galabya v. N.Y.C. Bd. of Educ., 202 F.3d 636, 640 (2d Cir.2000); Richardson v. N.Y. State Dep’t of Corr. Serv., 180 F.3d 426, 446 (2d Cir.1999). Such a change must be “more disruptive than a mere inconvenience or an alteration of job responsibilities.” Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir.2003) (internal citations and quotations omitted). Adverse employment actions include “termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title," }, { "docid": "22425494", "title": "", "text": "In this case, the district court appears to have failed to enter judgment on a separate document, as required by Federal Rule of Civil Procedure 58(a)(1). Nevertheless, the judgment became final 150 days after the order granting summary judgment was entered on the docket. See Fed.R.Civ.P. 58(b)(2)(B). Joseph’s notice of appeal, filed on May 20, 2005, was therefore timely. See Fed. R.App. P. 4(a)(2) (“A notice of appeal filed after the court announces a decision or order — but before entry of the judgment or order — -is treated as filed on the date of and after the entry”). The “failure to set forth a judgment or order on a separate document when required by Federal Rule of Civil Procedure 58(a)(1) does not affect the validity of an appeal from that judgment or order.” See id. 4(a)(7)(B). We therefore have jurisdiction to entertain Joseph’s appeal. B. We review an order granting summary judgment de novo. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir.2003). We set forth the applicable legal standard for Title VII actions in James v. New York Racing Ass’n: At the outset, a plaintiff can avoid dismissal by presenting the “minimal” pri-ma facie case defined by the Supreme Court in McDonnell Douglas. This requires no evidence of discrimination. It is satisfied by a showing of membership in a protected class, qualification for the position, an adverse employment action, and preference for a person not of the protected class. By making out this “minimal” prima facie case, even without evidence of discrimination, the plaintiff creates a presumption that the employer unlawfully discriminated, and thus places the burden of production on the employer to proffer a nondiscriminatory reason for its action.... On the other hand, once the employer articulates a non-discriminatory reason for its actions, the presumption completely drops out of the picture. The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated [against the plaintiff] remains at all times with the plaintiff. Thus, once the employer has proffered its nondiscriminatory reason, the employer will be entitled to summary judgment (or to the overturning of" }, { "docid": "13976834", "title": "", "text": "(noting that “the party opposing summary judgment may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible, or upon the mere allegations or denials of the adverse party’s pleading”) (internal citations and quotations omitted). Therefore, to survive summary judgment, plaintiff must present evidence that would be sufficient to support a jury verdict in her favor. See Goenaga, 51 F.3d at 18. A. Plaintiff’s Reassignment Defendants contend that plaintiff has failed to establish a prima facie case of age discrimination based on the Department’s decision to reassign her to work in the Criminal Unit because: (1) the reassignment does not constitute an adverse employment action; and (2) even if the reassignment was an adverse employment action, it did not occur under circumstances giving rise to an inference of age discrimination. (Defs. Mem. Supp. Summ. J. at 9.) First, we will consider whether plaintiffs reassignment to the Criminal Unit was an adverse employment action. “A plaintiff sustains an adverse employment action if he endures a ‘materially adverse change’ in the terms and conditions of employment.” Galabya v. N.Y. City Bd. of Educ., 202 F.3d 636, 640 (2d Cir.2000) (citing Richardson v. N.Y. State Dep’t of Corr. Serv., 180 F.3d 426, 446 (2d Cir.1999)). To be “materially adverse” a change must be “more disruptive than a mere inconvenience or an alteration of job responsibilities.” Galabya, 202 F.3d at 640 (quoting Grady v. Liberty Nat’l Bank and Trust Co., 993 F.2d 132, 136 (7th Cir.1993)). Examples of a materially adverse change include, but are not limited to, “a termination of employment, a demo tion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices ... unique to a particular situation.” Id. Plaintiff alleges that her transfer from the Juvenile Unit to the Criminal Unit was an adverse employment action because it prevented her from being considered for promotions that were to become available in the Juvenile Unit and also because the new position involved “extremely difficult” duties for which she was" }, { "docid": "21680889", "title": "", "text": "of employees, employee compensation ... and other terms, conditions, and privileges of employment.” A Title VII cause of action alleging employment discrimination proceeds under the burden shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Likewise, “[c]laims of intentional discrimination under the ADA area are analyzed using the framework developed under Title VII.” Bonura v. Sears Roebuck & Co., 62 Fed. Appx. 399, 399 n. 4 (2d Cir.2003). Under the McDonnell Douglas framework, the plaintiff must first establish a prima facie case of discrimination. Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir.2003). This requires that “the claimant ... show that: 1) he belonged to a protected class; 2) he was qualified for the position; 3) he suffered an adverse employment action; and 4) the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent.” Id. The plaintiffs burden at the prima facie stage is de minimis. See Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir.1988). “Once a plaintiff has established a prima facie case, the burden shifts to the defendant, which is required to offer a legitimate, non-discriminatory rationale for its actions.” Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir.2003). Finally, “if the defendant proffers such a [legitimate, nondiscriminatory] reason, the presumption of discrimination created by the prima facie case drops out of the analysis, and the defendant will be entitled to summary judgment ... unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination.... The plaintiff must be afforded the opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons but were a pretext for discrimination.” Mario v. P & C Food Markets, Inc., 313 F.3d 758, 767 (2d Cir.2002) (internal quotation marks and citations omitted). In other words, “to defeat summary judgment ... the plaintiffs admissible evidence must show circumstances that would be sufficient to permit a rational finder of fact to infer that the defendant’s employment decision was more likely than not" }, { "docid": "6370670", "title": "", "text": "Cir.1998)). Here, the Defendants do not argue that Suffolk County is not subject to the ADA or that Suffolk County is not liable for the wrongful acts of its agents such as the Individual Defendants when acting within the scope of their authority. Neither do the Defendants argue that the Plaintiff did not suffer an adverse employment action in the form of termination of his employment. Rather, the Defendants contend that the Plaintiff did not suffer from a “disability,” actual or perceived by them, as defined by the ADA; that he was qualified for the position of Corrections Officer I with or without reasonable accommodation; or that he was terminated as a result of any such “disability.” Although not extensively argued by the parties, the Court pauses to consider whether there were any additional “adverse employment actions” taken against the Plaintiff. A plaintiff suffers an “adverse employment action” under the ADA when “he or she endures a ‘materially adverse change’ in the terms and conditions of employment.” Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir.2000) (quoting Richardson v. N.Y. State Dep’t of Corr. Serv., 180 F.3d 426, 446 (2d Cir.1999)). A materially adverse change is a change in working conditions that is “more disruptive than a mere inconvenience or an alteration of job responsibilities.” Galabya, 202 F.3d at 640 (quoting Crady v. Liberty Nat’l Bank & Trust Co. of Ind., 993 F.2d 132, 136 (7th Cir.1993)) (internal quotation marks omitted). “Examples of materially adverse employment actions include ‘termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, [and] significantly diminished material responsibilities ....’” Feingold v. New York, 366 F.3d 138, 152 (2d Cir.2004) (quoting Galabya, 202 F.3d at 640). In this case, the Court finds that, aside from his termination of employment with the Suffolk County Sheriffs Office, the Plaintiff did not suffer any “adverse employment action.” In this regard, the Court finds that any mistreatment of the Plaintiff with regard to the graduation ceremony did not materially alter the terms and" }, { "docid": "11519013", "title": "", "text": "L.Ed.2d 668 (1973). See Johnson v. Conn. Dept. of Corr., 392 F.Supp.2d 326, 333 (D.Conn.2005). The Second Circuit has described the applicable legal standard for the evaluation of Title VII claims as follows: At the outset, a plaintiff can avoid dismissal by presenting the “minimal” pri- ma facie case defined by the Supreme Court in McDonnell Douglas. This requires no evidence of discrimination.... By making out this “minimal” prima fa-cie case, even without evidence of discrimination, the plaintiff creates a presumption that the employer unlawfully discriminated, ... and thus places the burden of production on the employer to proffer a nondiscriminatory reason for its action.... On the other hand, once the employer articulates a non-discriminatory reason for its actions, ... the presumption completely drops out of the picture.... The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated ... remains at all times with the plaintiff.... Thus, once the employer has proffered its nondiscriminatory reason, the employer will be entitled to summary judgment (or to the overturning of a plaintiffs verdict) unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination. James v. N.Y. Racing Ass’n, 233 F.3d 149, 153-54 (2d Cir.2000) (internal quotations marks and citations omitted). 1. Failure to Promote “To establish a prima facie case of a discriminatory failure to promote, a Title VII plaintiff must ordinarily demonstrate that: (1) she is a member of a protected class; (2) she applied and was qualified for a job for which the employer was seeking-applicants; (3) she was rejected for the position; and (4) the position remained open and the employer continued to seek -applicants having the plaintiffs qualifications.” Petrosino v. Bell Atl, 385 F.3d 210, 226 (2d Cir.2004) (internal quotation marks omitted). The Plaintiff undoubtedly is a member of a protected class under Title VII. The Defendant argues that the Plaintiffs failure to formally apply for a promotion, and the lack of a job for which the employer was seeking applicants, are fatal to the Plaintiffs failure-to-promote claim because the second element of the prima facie case would not" } ]

[ { "docid": "14506765", "title": "", "text": "justice specification. Appellant urges this court to adopt the reasoning in United States v. Chasteen, 17 M.J. 580 (A.F.C.M.R.1983), reconsidered on other issue, 17 M.J. 800, reversed in part, 24 M.J. 62 (C.M.A.1987). In Chasteen, the Air Force appellate court followed the rationale of United States v. Cameron, 460 F.2d 1394 (5th Cir.1972) (overruled in part on other grounds by United States v. Roberts, 483 F.2d 226 (5th Cir.1973)), which held that the Federal Statute, 18 U.S.C. § 1510 (obstruction of justice), was not to apply to communications between accomplices. We believe that Chasteen can be distinguished from the case before us. In Chasteen, the accused was charged with obstruction of justice in violation of 18 U.S. C. § 1510 apparently under the third clause of Article 134, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. § 934 (1982). In the case sub judice, appellant is charged with obstruction of justice under the first clause of Article 134, UCMJ. There are distinctions between the offense of obstruction of justice under the first clause of Article 134 and the Federal statutes. For example, 10 U.S.C. § 1503 has been consistently interpreted to require a pending judicial proceeding. United States v. Jones, 20 M.J. 38, n. 2 (C.M.A.1985). Under the Uniform Code of Military Justice, the offense is not so narrowly construed and can be based on conduct occurring prior to the formal preferral of charges. United States v. Favors, 48 C.M.R. 873 (A.C.M.R.1974). The essence of the offense denounced by Article 134, is obstructing or interfering with the administration of justice in the military uniform system. United States v. Long, 6 C.M.R. 60, 65 (1952). The elements of the Article 134, UCMJ, offense of obstructing justice are not dependent upon similar Federal criminal statutes. United States v. Jones, 20 M.J. 38 (C.M.A.1985); United States v. Chodkowski, 11 M.J. 605, 607 (A.F.C.M.R.1981), aff'd, 14 M.J. 126 (C.M.A.1982). Thus, we hold that the offense of obstruction of justice under the first clause of Article 134, UCMJ, applies to communications between accomplices. The allegations of error, to include those personally raised by appellant," } ]

[ { "docid": "12134808", "title": "", "text": "to testify falsely under oath. For the reasons set out below, we decline to adopt the Government’s interpretation of the nature of proof required for this element. First, the literal language of that element requires an accused to induce and procure a person to do two things: 1) “to take an oath or its equivalent”; and 2) “to falsely testify ....” The crime is not completed until the person so procured actually takes the oath and makes a knowingly false statement. Para. 98b(2)-(7). To only require proof that the accused caused a witness to agree to falsely testify under oath is to contravene the plain meaning of an element of the charged offense. Second, the Government’s position blurs the distinction between two separate military offenses. The Article 134 offense of obstruction of justice already punishes any inducement of a potential witness to falsely testify. See para. 96b and c, Part IV, Manual, supra (obstruction of justice includes wrongfully influencing or intimidating a witness or otherwise obstructing the due administration of justice). See also United States v. Guerrero, 28 MJ 223, 226-27 (CMA 1989). On the other hand, since the prohibition against suborning perjury requires a tampered witness to lie under oath, it only punishes the actual procurement of perjury. See para. 98b, Part IV. This is consistent with the distinction between the federal statutes prohibiting subornation of perjury and obstruction of justice. Compare 18 USC § 1622 (“Whoever procures another to commit any perjury is guilty of subornation of perjury.”) with 18 USC § 1512 (‘Whoever knowingly ... threatens ... another person ... with intent to ... influence ... the testimony of any person in an oficial proceeding” is guilty of tampering with a witness.). See Falk v. United States, 370 F.2d 472 (9th Cir.) (obstruction of justice includes any corrupt endeavor to procure perjury), cert. denied, 387 U.S. 926, 87 S.Ct. 2044, 18 L.Ed.2d 982 (1967). Finally, the gravamen of the offense of perjury, and by extension, subornation of perjury, “lies in the ‘misleading of the court, jury, or person holding the proceeding.’ ” See United States v. Byard," }, { "docid": "23420854", "title": "", "text": "on the same agreement, as shown by the pleadings, as the conspiracy offense. In Neblock, we were required to determine whether taking indecent liberties and committing indecent acts with the same child, but at different times, constituted one offense, since both infractions were violations of Article 134, UCMJ, 10 USC § 934. The majority in Neblock sustained the conviction of both offenses because each consisted of different acts at different times. Judge Sullivan, wilting the plurality opinion, rejected the pleadings-elements approach. In our separate opinions, Judge Cox and I both embraced the pleadings-elements approach as being truer to Blockburger’s prescription. In Oatney, the Court dealt with two offenses laid under Article 134, communicating a threat and obstructing justice. The appellant contended that his communicating a threat was a lesser-included offense of the obstruction of justice he committed on the same date. The majority compared the elements of the two offenses and, finding that they were different, rejected the appellant’s multiplicity argument. Writing for the dissent, then-Chief Judge Cox again applied the pleadings-elements test in accordance .with Weymouth and determined that under the facts, the appellant had communicated his threat in order to obstruct justice. Thus, looking at the pleadings and the facts of the case, the dissent found multiplicity. In more recent cases, we have found multiplicity based on the fact that lesser-included offenses are the same as the greater offenses under the Double Jeopardy Clause. See Britton, 47 MJ at 195; United States v. Savage, 50 MJ 244 (1999). In resolving issues of multiplicity, we are guided always by the principle that courts may not give more punishment than the Congress and the President intended. See Rutledge v. United States, supra; Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983); Brown v. Ohio, 432 U.S. at 165, 97 S.Ct. 2221. Where the pleadings and elements of two statutes define but one offense, the legislature does not intend to impose multiple punishments for that “same offense.” See Rutledge, supra; Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980); Ball v." }, { "docid": "18029762", "title": "", "text": "offense because one is lesser-included offense of the other). Appellant’s lesser-included-offense argument is based on a comparison of the ele ments of his offenses as delineated in paragraphs 96b and 110b, Part IV, Manual for Court-Martial, United States, 1984. Both of these offenses were charged under Article 134, and the President’s explanation of these offenses fully conforms with our case law. See United States v. Gilluly, 13 USCMA 458, 32 CMR 458 (1963); United States v. Holiday, 4 USCMA 454, 16 CMR 28 (1954). Accordingly, we agree that this is the appropriate source from which to draw the elements of these offenses for purposes of determining their multiplicity for findings. See United States v. Standifer, 40 MJ 440 (CMA 1994); United States v. Guerrero, 28 MJ 223, 226-27 (CMA 1989). The court below correctly noted the elements of the offenses subject to comparison in this case. Senior Judge Reed stated: The elements of communicating a threat under Article 134, UCMJ are: (1) That the accused communicated certain language expressing a present determination or intent to wrongfully injure the person, property, or reputation of another person, presently, or in the future; (2) That the communication was made known to that person or to a third person; (3) That the communication was wrongful; and (4) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. MCM, Part IV, ¶ 110b. The elements of obstructing justice, on the other hand, are: (1) That the accused wrongfully did a certain act; (2) That the accused did so in the case of a certain person against whom the accused had reason to believe there were or would be criminal proceedings pending; (3) That the act was done with the intent to influence, impede, or otherwise obstruct the due administration of justice; and (4) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to" }, { "docid": "21773019", "title": "", "text": "MJ 218 (CMA 1989). In both situations, the critical factor in determining the proper number of convictions is the intent of Congress. United States v. Parker, 17 USCMA at 546, 38 CMR at 344; United States v. Alexander, 471 F.2d 923, 932 (D.C.Cir.), cert. denied, 409 U.S. 1044, 93 S.Ct. 541, 34 L.Ed.2d 494 (1972). See United States v. Timberlake, 18 MJ 371, 374 (CMA 1984). In both situations, the same problem arises — namely, how one determines Congress’ intent. United States v. Baker, supra. Legislative intent may be revealed in different ways depending on the statute or statutes involved. See Garrett v. United States, 471 U.S. 773, 778-79, 105 S.Ct. 2407, 2411-12, 85 L.Ed.2d 764 (1985); United States v. Zubko, 18 MJ 378, 382-83 (CMA 1984). In this regard, we note that Congress is quite capable of indicating on the face of a statute the intended unit of prosecution by particularly delineating the object of its protection in enacting that statute. See United States v. Woodward, 469 U.S. 105, 105 S.Ct. 611, 83 L.Ed.2d 518 (1985); cf. United States v. Alexander, supra at 931 n.8. For example, the various federal civilian statutes covering obstruction of justice designate for protection particular persons (18 USC §§ 1501, 1502, 1503, 1504, 1512, 1513, 1514); particular things (18 USC §§ 1506 and 1509); particular proceedings (18 USC §§ 1505, 1508, 1510, 1511, 1516); and the general process of justice itself (18 USC §§ 1503 and 1507). Article 134 does not expressly delineate all the elements of obstruction of justice. See generally Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974). See United States v. Zubko, supra at 381-82. However, the elements of this offense as generally recognized in military law are explained in paragraph 96(b), Part IV, Manual, supra. See United States v. Jones, 20 MJ 38 (CMA 1985); United States v. Long, 2 USCMA 60, 65, 6 CMR 60, 65 (1952). Paragraph 96 states: b. Elements. (1) That the accused wrongfully did a certain act; (2) That the accused did so in the case of a certain person" }, { "docid": "10953110", "title": "", "text": "obstruct justice by encouraging an accomplice not to testify or otherwise cooperate with authorities. In United States v. Chasteen, supra, reconsidered on other issue, 17 MJ 800 (1983), rev ’d. in part, 24 MJ 62 (CMA 1987), the United States Air Force Court of Military Review, looking at 18 USC § 1510, and following the logic of United States v. Cameron, 460 F.2d 1394 (5th Cir.1972) (overruled in part on other grounds by United States v. Roberts, 483 F.2d 226 (5th Cir.1973)), found that such communications cannot form the basis of an obstruction-of-justice charge. However, in United States v. Rehak, 25 MJ 790 (1988), the United States Army Court of Military Review concluded that, at least where brought under the first clause of Article 134, communications between accomplices are subject to obstruction-of-justice charges. We agree with that court, with the qualification that these particular communications not embrace one of the objects of the original conspiracy. Appellant argues that because the Article 134 obstruction-of-justice offense is historically based upon Federal obstruction-of-justice statutes, this Court is compelled to adopt the interpretation of those laws enunciated by the Federal courts in Cameron and Chasteen. In addition, appellant advocates that Rehak be overruled. We reject appellant’s argument because it neglects the long-standing precedent that an offense of obstruction of justice under the first or second clause of Article 134 of the Code exists independent from other Federal obstruction-of-justice statutes. United States v. Jones, 20 MJ 38, 40 (CMA 1985); United States v. Long, 2 USCMA 60, 6 CMR 60 (1952). Furthermore, a facial similarity between a military offense and a Federal crime does not mean that the offense must be brought under the third clause of Article 134. Rather, where appropriate, the charge may be brought under any one of the three clauses. If the elements of an offense are satisfied under the first or second clause, that offense “may be alleged, prosecuted and established under one of those.” United States v. Long, supra at 65, 6 CMR at 65. Therefore, we hold that Rehak is applicable authority in this case. However, we qualify" }, { "docid": "18029754", "title": "", "text": "Opinion of the Court SULLIVAN, Judge: In April of 1992, appellant was tried by a general court-martial composed of a military judge sitting alone at Okinawa, Japan. Pursuant to his pleas, he was found guilty of an assault in which grievous bodily harm was intentionally inflicted. Contrary to his pleas, he was found guilty of obstructing justice and communicating a threat (2 specifications), in violation of Articles 128 and 134, Uniform Code of Military Justice, 10 USC §§ 928 and 934, respectively. He was sentenced to a dishonorable discharge, confinement for 4 years, total forfeitures, and reduction to pay grade E-l. On August 13,1992, the convening authority approved the sentence as adjudged, except he suspended confinement in excess of 18 months for a period of 12 months. On April 29, 1994, a panel of the then-Court of Military Review dismissed one specification of communicating a threat and reduced confinement by 6 months, but otherwise affirmed the findings of guilty and sentence as adjudged. On mo tion of the Government, reconsideration en banc was ordered. On November 4, 1994, the now-Court of Criminal Appeals, sitting en banc, affirmed the adjudged findings of guilty and the sentence. 41 MJ 619. On March 23, 1995, this Court granted review on the following two issues of law: I WHETHER COMMUNICATING A THREAT IS A LESSER-INCLUDED OFFENSE OF OBSTRUCTION OF JUSTICE WHERE COMMUNICATING THE THREAT IS THE ACTUS REUS FOR THE OBSTRUCTION CHARGE. II WHETHER — ASSUMING THE OFFENSES ARE SEPARATE — NOTWITHSTANDING THIS COURT’S DECISION IN UNITED STATES V. TETERS, 37 MJ 370 (CMA 1993), CERT. DENIED, 510 U.S. 1091, 114 S.Ct. 919, 127 L.Ed.2d 213 (1994), THE DOCTRINE OF SENTENCING MULTIPLICITY SURVIVES BECAUSE THE PRESIDENT HAS INDICATED THAT AN ACCUSED SHOULD NOT BE SUBJECTED TO MULTIPLE PUNISHMENT FOR A SINGLE ACT. We agree with the excellent en banc opinion of the Court of Criminal Appeals and affirm the findings of guilty and the sentence in this ease. See United States v. Teters, 37 MJ 370 (CMA 1993). Appellant was charged with and found guilty of the following offenses, inter alia: Charge II: Violation" }, { "docid": "17125251", "title": "", "text": "mention of the visit to the bar or his negligent loss of the pistol. In addition to obstructing justice and conspiracy charges, appellant was convicted of violating lawful orders (two specifications); failing to obey a lawful general order; and negligently suffering the loss of military property, violations of Articles 92 and 108, UCMJ, 10 USC §§ 892 and 908, respectively. He was sentenced to a bad-conduct discharge, confinement for 20 months, partial forfeitures, and reduction to Private (El). The convening authority approved the adjudged sentence, and the Court of Military Review affirmed. This Court granted appellant’s petition for further review to decide whether the evidence supported a conviction for obstruction of justice and conspiracy to obstruct justice under Articles 134 and 81. Obstruction of Justice The military offense of obstructing justice is framed under the general article, Article 134, and has these elements: (1) That the accused wrongfully did a certain act; (2) That the accused did so in the case of a certain person against whom the accused had reason to believe there were or would be criminal proceedings pending; (3) That the act was done with the intent to influence, impede or otherwise obstruct the due administration of justice; and (4) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. Para. 96b, Part IV, Manual for Courts-Martial, United States, 1984 (emphasis added). Presumably, most who commit crimes would prefer not to be caught, and many undoubtedly take steps to avoid detection. But merely committing a crime in such a way as to avoid detection does not automatically trigger liability for the additional charge of obstructing justice. Admittedly, the line separating the end of the principal offense from the beginning of obstruction of justice is often difficult to discern. Therefore, each offense must be resolved on a ease-by-case basis, considering the facts and circumstances surrounding the alleged obstruction and the time of its occurrence with respect to the administration of justice. Under our jurisprudence," }, { "docid": "10953111", "title": "", "text": "to adopt the interpretation of those laws enunciated by the Federal courts in Cameron and Chasteen. In addition, appellant advocates that Rehak be overruled. We reject appellant’s argument because it neglects the long-standing precedent that an offense of obstruction of justice under the first or second clause of Article 134 of the Code exists independent from other Federal obstruction-of-justice statutes. United States v. Jones, 20 MJ 38, 40 (CMA 1985); United States v. Long, 2 USCMA 60, 6 CMR 60 (1952). Furthermore, a facial similarity between a military offense and a Federal crime does not mean that the offense must be brought under the third clause of Article 134. Rather, where appropriate, the charge may be brought under any one of the three clauses. If the elements of an offense are satisfied under the first or second clause, that offense “may be alleged, prosecuted and established under one of those.” United States v. Long, supra at 65, 6 CMR at 65. Therefore, we hold that Rehak is applicable authority in this case. However, we qualify Rehak so as to exclude those communications which were one of the objects of the original conspiracy of the crime. A conspiracy between thieves to rob a bank and then leave the country cannot be split into (a) larceny, for robbing the bank, and (b) obstruction of justice, for conspiring to leave the country. Instead, the communications which form the basis of the obstruction-of-justice charge must in themselves constitute a complete and separate act which arose outside of the commission of the crime itself. See generally United States v. Guerrero, 28 MJ 223 (CMA 1989). We hold that communications between accomplices are subject to obstruction-of-justice charges where they constitute a separate and distinct act by the accused. Therefore, we find that the guilty plea submitted by appellant was provident. The decision of the United States Army Court of Military Review is affirmed. Chief Judge EVERETT and Judge SULLIVAN concur. The issue was presented to us as follows: WHETHER APPELLANT’S PLEA OF GUILTY TO OBSTRUCTION OF JUSTICE (SPECIFICATION 1, ADDITIONAL CHARGE) WAS IMPROVIDENT." }, { "docid": "21773020", "title": "", "text": "518 (1985); cf. United States v. Alexander, supra at 931 n.8. For example, the various federal civilian statutes covering obstruction of justice designate for protection particular persons (18 USC §§ 1501, 1502, 1503, 1504, 1512, 1513, 1514); particular things (18 USC §§ 1506 and 1509); particular proceedings (18 USC §§ 1505, 1508, 1510, 1511, 1516); and the general process of justice itself (18 USC §§ 1503 and 1507). Article 134 does not expressly delineate all the elements of obstruction of justice. See generally Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974). See United States v. Zubko, supra at 381-82. However, the elements of this offense as generally recognized in military law are explained in paragraph 96(b), Part IV, Manual, supra. See United States v. Jones, 20 MJ 38 (CMA 1985); United States v. Long, 2 USCMA 60, 65, 6 CMR 60, 65 (1952). Paragraph 96 states: b. Elements. (1) That the accused wrongfully did a certain act; (2) That the accused did so in the case of a certain person against whom the accused had reason to believe there were or would be criminal proceedings pending; (3) That the act was done with the intent to influence, impede, or otherwise obstruct the due administration of justice; and (4) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. (Emphasis added). Our case law clearly indicates the overriding concern of this provision of military law is the protection of “the administration of justice in the military system.” 2 USCMA at 65, 6 CMR at 65. In view of the above, the particular purpose of the military obstruction-of-justice prohibition is not the protection of individual witnesses or potential witnesses at courts-martial or other military investigations. See also United States v. Lester, 749 F.2d 1288, 1295 (9th Cir.1984); cf. United States v. Cuesta, 597 F.2d 903, 918 (5th Cir.), cert. denied, 444 U.S. 964, 100 S.Ct. 451, 62 L.Ed.2d 377 (1979). Accordingly, we reject" }, { "docid": "14506766", "title": "", "text": "Article 134 and the Federal statutes. For example, 10 U.S.C. § 1503 has been consistently interpreted to require a pending judicial proceeding. United States v. Jones, 20 M.J. 38, n. 2 (C.M.A.1985). Under the Uniform Code of Military Justice, the offense is not so narrowly construed and can be based on conduct occurring prior to the formal preferral of charges. United States v. Favors, 48 C.M.R. 873 (A.C.M.R.1974). The essence of the offense denounced by Article 134, is obstructing or interfering with the administration of justice in the military uniform system. United States v. Long, 6 C.M.R. 60, 65 (1952). The elements of the Article 134, UCMJ, offense of obstructing justice are not dependent upon similar Federal criminal statutes. United States v. Jones, 20 M.J. 38 (C.M.A.1985); United States v. Chodkowski, 11 M.J. 605, 607 (A.F.C.M.R.1981), aff'd, 14 M.J. 126 (C.M.A.1982). Thus, we hold that the offense of obstruction of justice under the first clause of Article 134, UCMJ, applies to communications between accomplices. The allegations of error, to include those personally raised by appellant, are without merit. The findings of guilty and the sentence are affirmed. Chief Judge HOLDAWAY and Judge CARMICHAEL concur. . Manual for Courts-Martial, United States, 1984, paragraph 60c(l) explains, in general. Article 134, UCMJ. It provides, in part, Article 134 makes punishable acts in three categories of offenses not specifically covered in any other article of the code. These are referred to as \"clauses 1, 2, and 3” of Article 134. Clause 1 offenses involved disorders and neglects to the prejudice of good order and discipline in the armed forces. Clause 2 offenses involve conduct of a nature to bring discredit upon the armed forces. Clause 3 offenses involve noncapital crimes or offenses which violate Federal law including law made applicable through the Federal Assimilative Crimes Act____ . It appears that 18 U.S.C. § 1510 was enacted to apply the obstruction of justice offense proscribed by 18 U.S.C. § 1503 to instances where there are no pending judicial proceedings. Otherwise, the statutes appear to be the same." }, { "docid": "12134817", "title": "", "text": "is sufficient to establish an included offense, this Court may affirm the included offense, provided that it does not do so on a theory not presented to the trier of fact. See United States v. McKinley, 27 MJ 78, 79 (CMA 1988) (“[A]n appellate court may disapprove a finding because proof of an essential element is lacking or, ... may substitute a lesser-ineluded offense for the disapproved findings.... even if the lesser-ineluded offense was neither considered nor instructed upon at the trial of the case.”); United States v. LaFontant, 16 MJ 236 (CMA 1983) (Court of Military Review could affirm included offense of attempted possession of drugs where accused was convicted of possession). Cf. Chiarella v. United States, 445 U.S. 222, 236, 100 S.Ct. 1108, 1118-19, 63 L.Ed.2d 348 (1980) (appellate court cannot affirm conviction on the basis of a theory not presented to the jury). Our review of the elements of related offenses convinces us that the offense of obstructing justice, in violation of Article 134, is included in the offense of subornation of perjury. See United States v. Teters, 37 MJ 370, 376 (CMA 1993) (included offenses determined by examining their elements), cert. denied, — U.S. -, 114 S.Ct. 919, 127 L.Ed.2d 213 (1994). Although obstruction of justice is not specifically listed as a lesserineluded offense of subornation of perjury, the lists of included offenses “are not all-inclusive.” Para. 2b(4), Part IV, Manual, supra. The elements of subornation of perjury have already been set out herein. See 40 MJ at 442. The elements of obstructing justice are as follows: (1) That the accused wrongfully did a certain act; (2) That the accused did so in the case of a certain person against whom the accused had reason to believe there were or would be criminal proceedings pending; (3) That the act was done with the intent to influence, impede, or otherwise obstruct the due administration of justice; and (4) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring" }, { "docid": "12134816", "title": "", "text": "in any case involving subornation of perjury is not who called the witness, but whether the perjured testimony was offered as truthful and thereby misled the court and corrupted the judicial process. To hold otherwise would create the irony of upholding a conviction of an accused for subornation of perjury in a given case even if the accused decides to forgo calling his own witness to prevent possible perjury. We also reject the Government’s argument that such an interpretation of this element of the offense would “giv[e] the suborner of perjury a free hand in inducing perjury from Government witnesses....” Answer to Final Brief at 3. Such attempts would clearly be prosecutable as obstruction of justice under Article 134. Similarly, tampering with potential witnesses is a separate crime under federal law. See 18 USC § 1512. Accordingly, we hold that the evidence was legally insufficient to support appellant’s conviction for suborning perjury. Our holding as to the legal insufficiency of the evidence of the offense charged does not, however, end our inquiry. If the evidence is sufficient to establish an included offense, this Court may affirm the included offense, provided that it does not do so on a theory not presented to the trier of fact. See United States v. McKinley, 27 MJ 78, 79 (CMA 1988) (“[A]n appellate court may disapprove a finding because proof of an essential element is lacking or, ... may substitute a lesser-ineluded offense for the disapproved findings.... even if the lesser-ineluded offense was neither considered nor instructed upon at the trial of the case.”); United States v. LaFontant, 16 MJ 236 (CMA 1983) (Court of Military Review could affirm included offense of attempted possession of drugs where accused was convicted of possession). Cf. Chiarella v. United States, 445 U.S. 222, 236, 100 S.Ct. 1108, 1118-19, 63 L.Ed.2d 348 (1980) (appellate court cannot affirm conviction on the basis of a theory not presented to the jury). Our review of the elements of related offenses convinces us that the offense of obstructing justice, in violation of Article 134, is included in the offense of subornation of" }, { "docid": "18029761", "title": "", "text": "to refute the Court’s interpretation at the present time, sir. The first granted issue in this case was framed by appellant and is based on the decision of this Court in United States v. Foster, 40 MJ 140, 146 (1994) (a subset of elements, for purposes of determining a lesser-included offense, means each element of the lesser-included offense is “rationally derivative” of an element of the greater offense). See also United States v. Schoolfield, 40 MJ 132 (CMA 1994). He asserts under this decision that his communicating-a-threat offense of January 16 is a lesser-included offense of his obstruction-of-justice offense of that same date. Appellant thus contends that, absent evidence to the contrary, Congress can be presumed to have intended only one conviction in these circumstances. See Ball v. United States, 470 U.S. 856, 861, 105 S.Ct. 1668, 1671-72, 84 L.Ed.2d 740 (1985); United States v. Teters, 37 MJ 370, 373 (CMA 1993); see generally Rutledge v. United States, — U.S. -, -, 116 S.Ct. 1241, 1247, 134 L.Ed.2d 419 (1996) (two different statutes define same offense because one is lesser-included offense of the other). Appellant’s lesser-included-offense argument is based on a comparison of the ele ments of his offenses as delineated in paragraphs 96b and 110b, Part IV, Manual for Court-Martial, United States, 1984. Both of these offenses were charged under Article 134, and the President’s explanation of these offenses fully conforms with our case law. See United States v. Gilluly, 13 USCMA 458, 32 CMR 458 (1963); United States v. Holiday, 4 USCMA 454, 16 CMR 28 (1954). Accordingly, we agree that this is the appropriate source from which to draw the elements of these offenses for purposes of determining their multiplicity for findings. See United States v. Standifer, 40 MJ 440 (CMA 1994); United States v. Guerrero, 28 MJ 223, 226-27 (CMA 1989). The court below correctly noted the elements of the offenses subject to comparison in this case. Senior Judge Reed stated: The elements of communicating a threat under Article 134, UCMJ are: (1) That the accused communicated certain language expressing a present determination or intent to" }, { "docid": "10953108", "title": "", "text": "Opinion of the Court COX, Judge: Appellant was tried by a military judge sitting as a general court-martial at Darmstadt, Federal Republic of Germany. Pursuant to his pleas, he was found guilty of committing an assault intentionally inflicting grievous bodily harm, obstruction of justice, and carrying a concealed weapon, in violation of Articles 128 and 134, Uniform Code of Military Justice, 10 USC §§ 928 and 934, respectively. He was sentenced to a dishonorable discharge, confinement for 5 years, total forfeitures, and reduction to private E-l. The sentence was approved by the convening authority, except that, pursuant to a pretrial agreement, the period of confinement was reduced from 5 to 4 years. Appellant asserts that his plea of guilty to obstruction of justice is improvident because the conversations which form the basis for this charge were between himself and his accomplice. This, he contends, is error under United States v. Chasteen, 17 MJ 580 (1983). On July 1, 1987, appellant approached PFC “T,” an acquaintance, outside a bar and “asked him to keep an eye on” the victim while appellant stepped inside. Appellant informed PFC “T” that the victim had been harassing a friend of his and that he “wanted to get him for it,” or words to that effect. Appellant then entered the bar, “obtained a knife from an unknown person,” concealed the knife in his back pocket, and returned outside. The victim subsequently entered the establishment, and appellant and PFC “T” followed him into the bathroom. The victim entered one of the stalls. Appellant took out the knife, opened the door of the stall, and stabbed the victim in the abdomen. Two days later, appellant contacted PFC “T” and told him to leave the Federal Republic of Germany because of the ongoing investigation into the stabbing. PFC “T” informed appellant that he had no money, at which point appellant assured him that he would provide him whatever money was needed for him to leave. Appellant’s “intent ... was to make” PFC “T” “unavailable to ... law enforcement personnel.” The question to be resolved is whether an accused can" }, { "docid": "12134820", "title": "", "text": "that justice actually was obstructed. Para. 96c. Accordingly, we hold that, under the “elements” test adopted in Teters, obstruction of justice is included in the offense of subornation of perjury. Since the included offense is based on the same theory as was presented to the factfinders on the greater offense, this Court may affirm the included offense notwithstanding the legal insufficiency of the proof of the greater offense. The maximum punishment for obstructing justice is the same as the maximum punishment for subornation of perjury. Compare para. 96e with para. 98e, Part IV. Accordingly, there is no reasonable possibility of prejudice as to sentence in this case. The decision of the United States Air Force Court of Military Review as to Charge III and its specification is reversed to the extent that it affirms a finding of guilty of an offense greater than obstruction of justice, in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934. In all other respects the decision of that court is affirmed. Judges CRAWFORD and WISS concur. COX, Judge, joined by SULLIVAN, Chief Judge (dissenting): I would affirm. I need only ask three questions: 1 —What did appellant do? Answer: He “induced” Ms. Washington to testify falsely. 2 —Was it foreseeable that she would testify? Answer: Yes. Appellant listed her as a witness. 3 —What did Ms. Washington do? Answer: She testified falsely. That’s enough. In any event, I am concerned that we have substituted another separate and distinct offense, obstruction of justice, under the rubric of a lesser-included offense (LIO). Neither the Government, appellant, the military judge, nor the Court of Military Review has ever suggested this remedy. Indeed, it may be seen from the record that the parties at trial agreed that there were no LIOs. 40 MJ at 442. United States v. McKinley, 27 MJ 78 (CMA 1988). At a minimum, we should give appellant an opportunity to be heard by inviting a brief on the question. Perhaps appellant can persuade a majority to at least reexamine this aspect of the opinion via a petition for reconsideration." }, { "docid": "10953109", "title": "", "text": "on” the victim while appellant stepped inside. Appellant informed PFC “T” that the victim had been harassing a friend of his and that he “wanted to get him for it,” or words to that effect. Appellant then entered the bar, “obtained a knife from an unknown person,” concealed the knife in his back pocket, and returned outside. The victim subsequently entered the establishment, and appellant and PFC “T” followed him into the bathroom. The victim entered one of the stalls. Appellant took out the knife, opened the door of the stall, and stabbed the victim in the abdomen. Two days later, appellant contacted PFC “T” and told him to leave the Federal Republic of Germany because of the ongoing investigation into the stabbing. PFC “T” informed appellant that he had no money, at which point appellant assured him that he would provide him whatever money was needed for him to leave. Appellant’s “intent ... was to make” PFC “T” “unavailable to ... law enforcement personnel.” The question to be resolved is whether an accused can obstruct justice by encouraging an accomplice not to testify or otherwise cooperate with authorities. In United States v. Chasteen, supra, reconsidered on other issue, 17 MJ 800 (1983), rev ’d. in part, 24 MJ 62 (CMA 1987), the United States Air Force Court of Military Review, looking at 18 USC § 1510, and following the logic of United States v. Cameron, 460 F.2d 1394 (5th Cir.1972) (overruled in part on other grounds by United States v. Roberts, 483 F.2d 226 (5th Cir.1973)), found that such communications cannot form the basis of an obstruction-of-justice charge. However, in United States v. Rehak, 25 MJ 790 (1988), the United States Army Court of Military Review concluded that, at least where brought under the first clause of Article 134, communications between accomplices are subject to obstruction-of-justice charges. We agree with that court, with the qualification that these particular communications not embrace one of the objects of the original conspiracy. Appellant argues that because the Article 134 obstruction-of-justice offense is historically based upon Federal obstruction-of-justice statutes, this Court is compelled" }, { "docid": "15269625", "title": "", "text": "DECISION HODGSON, Chief Judge: The accused, while stationed in Korea, was a central figure in an extensive black marketing operation. He was also an active participant in a “marriage for hire” scheme in which American servicemen would marry Korean women who in turn would agree to a divorce after they entered the United States. The conduct described above resulted in the accused’s conviction, following mixed pleas, of conspiring to engage in black marketing activities, black marketing, soliciting another to violate United States immigration laws, receiving stolen property, and obstructing the communication of information relating to a violation of Article 92, U.C.M.J., to a criminal investigator of the armed forces, in violation of Articles 81, 92, and 134, U.C.M.J. The approved sentence extends to a dishonorable discharge, confinement at hard labor for 17 years, forfeiture of all pay and allowances, and reduction to airman basic. The accused has asserted seven assignments of error. Those warranting comment are discussed below. I Contrary to his pleas, the accused was convicted of obstructing justice in violation of 18 U.S.C. § 1510 (Specifications 7 and 8 of Charge III). The record established that when the authorities became aware of the accused’s black marketing activities he contacted his co-conspirators, Sergeant Abbott and Airman First Class Williams, and suggested that if they “stuck to the phony mail receipt story” everything would be “OK.” The convening authority considered the conversation to be a violation of 18 U.S.C. § 1510 and referred the matter to trial. The accused argues that his alleged misconduct is not proscribed by the statute. After examining the federal decisions interpreting the statute, we agree. The statute under which the Government chose to proceed was designed to deter interference with potential witnesses prior to initiation of judicial proceedings, and was not intended to deal with communications between accomplices in the commission of federal crimes. United States v. Cameron, 460 F.2d 1394 (5th Cir.1972); accord United States v. Hubbard, 474 F.Supp. 64 (D.C.1979). Here both Abbott and Williams were named eo-conspirators in a black marketing allegation, and were identified in the trial judge’s instructions to the" }, { "docid": "23420853", "title": "", "text": "orders, from customs of the service, or from traditional military crimes that have emerged from a military common law-like process. Arts. 90(2), 91(2), 92, 133, and 134, UCMJ, 10 USC §§ 890(2), 891(2), 892, 933, and 934, respectively. See Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 ... (1974). Mere recitation of statutory elements would provide servicemembers no notice whatever in such cases. Id. at 335. The following year saw a strengthening of the pleadings-elements approach to multiplicity issues, both here and in the Supreme Court. See Rutledge v. United States, 517 U.S. 292, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996); Neblock, 45 MJ at 191; United States v. Oatney, 45 MJ 185 (1996). In Rutledge, the unanimous Supreme Court found that conspiracy to distribute cocaine was a lesser-included offense of a continuing criminal enterprise (CCE) offense, since the “in concert” element of the CCE offense signified agreement in a plan, and that was tantamount to a conspiracy. In other words, the “in concert” element of the CCE offense was based on the same agreement, as shown by the pleadings, as the conspiracy offense. In Neblock, we were required to determine whether taking indecent liberties and committing indecent acts with the same child, but at different times, constituted one offense, since both infractions were violations of Article 134, UCMJ, 10 USC § 934. The majority in Neblock sustained the conviction of both offenses because each consisted of different acts at different times. Judge Sullivan, wilting the plurality opinion, rejected the pleadings-elements approach. In our separate opinions, Judge Cox and I both embraced the pleadings-elements approach as being truer to Blockburger’s prescription. In Oatney, the Court dealt with two offenses laid under Article 134, communicating a threat and obstructing justice. The appellant contended that his communicating a threat was a lesser-included offense of the obstruction of justice he committed on the same date. The majority compared the elements of the two offenses and, finding that they were different, rejected the appellant’s multiplicity argument. Writing for the dissent, then-Chief Judge Cox again applied the pleadings-elements test in accordance" }, { "docid": "17125259", "title": "", "text": "or would be criminal proceedings pending” at some time as a result of his loss of the weapon and that his actions subsequent to the loss were “done with the intent to influence, impede, or otherwise obstruct the due administration of justice.” Para. 96b, Part IV. The decision of the United States Army Court of Military Review is affirmed. Judges CRAWFORD and GIERKE concur. As framed by appellant, the granted issue asks: WHETHER THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUSTAIN THE FINDINGS OF GUILTY AS TO SPECIFICATION 1 OF CHARGE III, ALLEGING OBSTRUCTION OF JUSTICE, AND ADDITIONAL CHARGE I AND ITS SPECIFICATION, ALLEGING CONSPIRACY TO OBSTRUCT JUSTICE, WHERE THE ALLEGED OBSTRUCTION WAS A MERE ATTEMPT TO CONCEAL A CRIME PRIOR TO ITS DISCOVERY BY THE AUTHORITIES. WISS, Judge (concurring with reservation): I concur with the majority opinion except for that minor portion that implies some relevance in the factual difference between this case and United States v. Turner, 33 MJ 40 (CMA 1991), relating to whether an effort to obstruct justice attempts to conceal the crime or merely to misdirect the focus of suspicion. 36 MJ at 445. It seems to me that, in either event, the elements of obstruction of justice in military jurisprudence, as set out in the majority opinion, could be met. SULLIVAN, Chief Judge (concurring in the result): In United States v. Athey, 34 MJ 44, 48 (CMA 1992), this Court expressly held that the military offense of obstruction of justice occurred when an “accused ‘had reason to believe there were or would be criminal proceedings pending’ against himself or some other person.” See United States v. Guerrero, 28 MJ 223, 225 (CMA 1989). That principle of law is sufficient to resolve appellant’s case. Moreover, its application in the present case is entirely consistent with my dissenting opinion in United States v. Turner, 33 MJ 40, 43 (CMA 1991), and my conclusion that presenting a false urine sample for a urinalysis also constituted the military offense of obstruction of justice." }, { "docid": "12132184", "title": "", "text": "now asserts that this ruling was error and, in a related contention, that the offense was not proven beyond a reasonable doubt. We, however, conclude that appellant’s argument is without merit. Obstruction of justice is a cognizable offense under Article 134, UCMJ, regardless of the pendency of a judicial proceeding. United States v. Ridgeway, 13 M.J. 742 (A.C.M.R.1982); United States v. Chodkowski, 11 M.J. 605 (A.F.C.M.R.1981). Acts which are committed with the intent to frustrate the bringing of criminal charges can be as detrimental to the furtherance of military justice as is conduct which occurs subsequent to the pendency of a judicial proceeding. As the Air Force Court of Military Review recognized in Chodkowski: The impact of such conduct is equally pernicious and disruptive whether or not formal charges are pending. To hold otherwise would permit the integrity of the court-martial process to be compromised on the eve of its birth. In effect, those who were alert enough to act immediately before the formal process began would be insulated from dire consequences for their perverse conduct. Id. at 607. We note that appellant, in his brief, alludes to the use of the federal obstruction of justice provisions as a guide for the Manual’s model specification for charging the offense under Article 134, UCMJ. While this argument is not developed, appellant’s position appears to be that the constraints imposed by the federal criminal code, which include the requirement that a judicial proceeding be pending when the alleged obstruction offense occurs, apply to the Codal prohibition. However, the Article 134, UCMJ, offense is independent of the federal statutes and the elements prescribed thereunder. United States v. Long, 2 U.S.C.M.A. 60, 6 C.M.R. 60 (1952); United States v. Chodkowski, supra. See also United States v. Ridgeway, supra. The military judge therefore properly denied appellant’s motion to dismiss. It also follows from the foregoing that the challenged offense was proven beyond a reasonable doubt. (2) Wrongful fraternization Appellant initially asserts that the specifications charging wrongful fraternization in violation of Article 134, UCMJ, fail to allege offenses. In the alternative, he argues that the offenses" } ]

[ { "docid": "20787525", "title": "", "text": "one of these significant conditions could have blocked consummation of the merger. Indeed, the favorable tax ruling was not received until December 7,1976, and dissenting shareholder appraisal rights could have been exercised up until December 30, 1976. Consequently, examining Cooper’s position as of July 29, we are convinced that there was no “sale” by Cooper of its Barnes-Hind shares in the sense of an irrevocable commitment and a fixing of Cooper’s rights and obligations. The eventual exchange of shares by Cooper was dependent upon the fulfillment of several significant conditions. Moreover, throughout the period preceding the actual exchange of shares at closing, Cooper remained subject to market fluctuations and retained its speculative position as a putative Barnes-Hind insider. The execution of the Merger Agreement simply did not constitute a “sale” for purposes of § 16(b). The distinction between an agreement and actual execution of a transaction for purposes of a § 16(b) purchase was discussed in Stella v. Graham-Paige Motors Corp., 232 F.2d 299 (2d Cir.), cert. denied, 352 U.S. 831, 77 S.Ct. 46, 1 L.Ed.2d 52 (1956). There, the court addressed the question of whether, for purposes of § 16(b), the insider “purchased” securities when the purchase agreement was executed or when the transaction was actually closed. The purchase agreement was conditioned upon the purchaser securing a bank loan guaranteed by the seller, among others. Since the guarantee, and hence the loan, were not executed prior to closing, the Second Circuit held that the purchaser “had not incurred ‘an irrevocable liability to take and pay for the stock’ ” prior to the closing. 232 F.2d at 301 (footnote omitted). Consequently, the court held that the “purchase” occurred at the time of closing, not upon execution of the contingent purchase agreement. Portnoy makes much of Cooper’s loss of control over the transaction after the June 11 documents and the July 29 Merger Agreement were executed. Although we agree that the actual consummation of the transaction largely was beyond Cooper’s immediate control and direction, we do not find this dispositive. That one party has completed whatever steps it can take does" } ]

[ { "docid": "2463279", "title": "", "text": "was a “sale” of stock within the meaning of § 16(b). In that case, plaintiff Portnoy sued on behalf of Revlon, the surviving corporation in the merger of Revlon and Barnes-Hind Pharmaceuticals, Inc. Portnoy contended that Cooper Laboratories, Inc. realized short-swing profits upon the purchase and exchange of Barnes-Hind stock in 1976. Cooper began purchasing Barnes-Hind common stock in 1972. In 1974, Barnes-Hind concluded that a combination with Cooper would not be in the best interests of Barnes-Hind or its shareholders. Cooper continued to purchase Barnes-Hind stock through May, 1976. On May 26, 1976, Barnes-Hind sued Cooper in federal court to enjoin Cooper from making any further purchases of Barnes-Hind stock. The court denied Barnes-Hind’s request for a temporary restraining order, and shortly thereafter, Barnes-Hind and Revlon executed a Letter of Intent to merge which set forth the procedure for, and prerequisites to, the execution of a formal merger agreement. At that time, Cooper agreed to support the merger. On July 29, 1976, Barnes-Hind and Revlon executed the Merger Agreement which set forth the conditions precedent to the merger. The conditions were satisfied, the merger closed, and the shares exchanged on December 31, 1976. In his complaint, Portnoy alleged that either the Letter of Intent or the Merger Agreement constituted a § 16(b) “sale.” According to Portnoy, because Cooper pledged its stock in support of the Revlon merger, and because the conditions precedent to the closing of the merger were beyond the control of Cooper and required no action on the part of Cooper, Cooper was “irrevocably bound” to exchange its Barnes-Hind stock for Revlon stock no later than July 29, 1976. Therefore, a § 16(b) “sale” occurred no later than July 29, 1976, well within six months of Cooper’s May, 1976 purchases of Barnes-Hind stock. The Seventh Circuit held that neither the Letter of Intent nor the Merger Agreement constituted a contract to sell shares within the scope of § 16(b). In so holding, the court reasoned that a sale occurs when an insider becomes “so irrevocably bound to dispose of his securities so that his rights and obligations" }, { "docid": "20787530", "title": "", "text": "by the Supreme Court. But even if we do accept the Ninth Circuit’s analysis, that analysis does not alter the outcome of this case. As the Supreme Court indicated, “[t]he Court of Appeals agreed that conditions to performance might prevent a contract from being a ‘sale’ prior to closing.” 423 U.S. at 239 n.7, 96 S.Ct. at 513. But, the Ninth Circuit found that upon execution of the underwriting agreement the parties were bound, the price was fixed, and • the seller was not subject to “market risks after the date of the agreement.” Therefore, the sale was complete, “subject only to the usual conditions precedent to closing.” 506 F.2d at 607. According to the Ninth Circuit, the only significant condition precedent to closing — that a registration statement become effective — was satisfied on the very date the underwriting agreement was executed. Consequently, the court held that there was a binding sale on the date of the agreement and not on the date of closing. Unlike the circumstances in Foremost-McKesson, execution of the Merger Agreement in the case at bar did not irrevocably bind the parties. Cooper remained subject to market risks until the date of closing because the sale of stock was in terms of an exchange ratio rather than a fixed price as in Foremost-McKesson. More importantly, consummation of the Revlon merger was contingent upon several major conditions that were not satisfied until shortly before the closing. The requirements for closing set forth in the Merger Agreement were more than just the “usual conditions precedent to closing.” They constituted significant roadblocks that could have doomed the Revlon merger. We hold that there was no “sale” by Cooper of its Barnes-Hind shares until the closing held on December 31,1976. Consequently, there was no purchase and sale by Cooper within six months, and § 16(b) was not violated. Ill For the foregoing reasons, the judgment of the district court granting summary judgment to defendants and dismissing Portnoy’s complaint is AFFIRMED. . Section 16(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78p(b) states: For the purpose of" }, { "docid": "20787526", "title": "", "text": "L.Ed.2d 52 (1956). There, the court addressed the question of whether, for purposes of § 16(b), the insider “purchased” securities when the purchase agreement was executed or when the transaction was actually closed. The purchase agreement was conditioned upon the purchaser securing a bank loan guaranteed by the seller, among others. Since the guarantee, and hence the loan, were not executed prior to closing, the Second Circuit held that the purchaser “had not incurred ‘an irrevocable liability to take and pay for the stock’ ” prior to the closing. 232 F.2d at 301 (footnote omitted). Consequently, the court held that the “purchase” occurred at the time of closing, not upon execution of the contingent purchase agreement. Portnoy makes much of Cooper’s loss of control over the transaction after the June 11 documents and the July 29 Merger Agreement were executed. Although we agree that the actual consummation of the transaction largely was beyond Cooper’s immediate control and direction, we do not find this dispositive. That one party has completed whatever steps it can take does not finalize the transaction if significant obstacles to closing remain to be faced. There was no irrevocable commitment to exchange shares until the significant conditions precedent to closing were fulfilled. Nor can we ignore Cooper’s continuing potential for speculative abuse of its insider position. Assuming the Revlon merger had collapsed, Cooper would have retained its Barnes-Hind stock and the continued potential for speculation based on insider information. The reasoning of Silverman v. Landa, 306 F.2d 422, 424 (2d Cir. 1962) is applicable to the case at bar. In Silverman, the court held that a director had not purchased and sold securities within less than six months by writing both puts and calls on the stock of his corporation, since the call options were not exercised. The court held that since call options had not been exercised within six months, the director’s beneficial ownership had not changed, i. e., his insider’s rights and obligations had not changed merely by placing the unexercised call options on the market. The court, 306 F.2d at 424, reasoned that: By" }, { "docid": "20787535", "title": "", "text": "under certain circumstances a “sale” for purposes of § 16(b) may occur prior to closing once the significant conditions precedent have been fulfilled. See Provident Securities Co. v. Foremost-McKesson, Inc., 506 F.2d 601, 607 (9th Cir. 1974), aff’d on other grounds, 423 U.S. 232, 96 S.Ct. 508, 46 L.Ed.2d 464 (1976) (underwriting was subject only to usual conditions precedent and only substantial condition precedent to closing was satisfied as of date the agreement was executed). In the case at bar, it is clear that several of the significant conditions precedent to closing, including the exercise of dissenting, shareholder appraisal rights and the receipt of the Internal Revenue Service approval that the merger would be a tax-free reorganization, were not fulfilled until after expiration of the six month statutory period. . We assume that the requisite 66%% shareholder approval did not present a significant condition precedent to closing in this case because Cooper and other significant shareholders comprising at least 66%% of the outstanding Barnes-Hind stock had agreed to vote their shares in approval of the merger. We note, however, that in other circumstances shareholder approval may constitute a significant condition precedent to closing and could affect our determination of when a “sale” of securities occurs for purposes of § 16(b). . The applicable law regarding shareholder appraisal rights, Cal.Corp.Code § 4301, grants dissenting shareholders 30 days, after notice of shareholder approval of the merger or consolidation is mailed, in which to demand that the issuer corporation purchase their shares for the fair market value of the shares as of the day prior to shareholder approval. In the case at bar, dissenting shareholders had 30 days after the November 30, 1976 shareholder meeting during which to demand their appraisal right. . See also Champion Home Builders Co. v. Jeffress, 490 F.2d 611 (6th Cir.), cert. denied, 416 U.S. 986, 94 S.Ct. 2390, 40 L.Ed.2d 763 (1974) (where no conditions to closing in the acquisition agreement were in issue, the court held that a purchase of stock within § 16(b) took place upon execution and board approval of a written acquisition agreement," }, { "docid": "15111373", "title": "", "text": "The resolution was no more than a license to bargain. We conclude that the resolution was not a contract in the traditional rights and obligations sense of the word. Nor can we conclude that such a tenuous posture is a “purchase” under § 16(b). Our inquiry, however, does not end here. The transaction also must be examined to determine if there was the potential for speculative abuse. At the time of the resolution Jeffress was not a statutory insider of Champion. He previously had owned no stock, nor was he an officer or director. The record does not show that Jeffress had advance knowledge of the merger. The Board had made a press release notifying the public of the proposed merger. The transaction is, therefore, unlike that of Newmark, supra, where RKO had not only a conditional right to purchase, but also advance knowledge of the impending merger. Jeffress has argued that incorporation of the purchase price set in the February 21 resolution into the April 17 contract when the market price of Champion was rising, shows that the parties intended the agreement to be firm. The intent of the parties is irrelevant to determining § 16(b) liability. Kern, supra. Even assuming that intent was relevant, adherence to the earlier purchase price is not conclusive. It only shows that Jeffress would not settle for or Champion did not propose a lower price. It does not establish that the parties were bound to that price. Jeffress also argues that other corporate documents refer to February 21 as being the significant date. This argument is not convincing. Jeffress referred to April 17 as the date he acquired beneficial ownership when he filed his Form 3 report to the SEC. Moreover, the parties cannot contract away their § 16(b) liability by agreements as to the purchase date. 15 U.S. C. § 78cc(a) provides: “Any condition, stipulation, or provision binding any person to waive compliance with any provision of this chapter or of any rule or regulation thereunder, or of any rule of an exchange required thereby shall be void.” The record in this" }, { "docid": "15111367", "title": "", "text": "Indiana corporation, from Etson B. Jeffress in exchange for 105,000 shares of the Common Stock, par value $1, of Champion Home Builders Co., is approved, and the President and/or the Treasurer of this corporation are hereby au thorized and empowered to negotiate with Etson B. Jeffress and to enter into, on behalf of this corporation, an agreement and plan of reorganization providing for the acquisition of Jef-fress’ Concord Stock in exchange for 105,000 shares of this corporation’s Common Stock, par value $1, and providing for such additional terms and conditions (not to effect the foregoing) as they consider proper and in the best interests of the corporation; “Further Resolved, that the President and/or the Treasurer of this corporation are authorized and empowered to execute such agreement and plan of reorganization, to make any necessary modifications thereto, to sign any and all papers, documents and instruments necessary in connection with such agreement, and to do and perform any and all acts in connection therewith; . . . Jeffress has cited no authority, nor could we find any, to show that a Board of Directors’ resolution is a “purchase” within the meaning of § 16(b). To the contrary, the ease law forces us to reach the opposite conclusion. In Blau v. Ogsbury, 210 F.2d 426 (2d Cir. 1954), the court held that the holder of an option to buy stock becomes the beneficial owner when he incurs “an irrevocable liability to take and pay for the stock.” Id. at 427. The court noted that the time when the insider’s rights and obligations became fixed was controlling in the application of the statute. Id. In Stella v. Graham-Paige Motors Corp., 232 F.2d 299 (2d Cir. 1956), cert, denied, 352 U.S. 831, 77 S.Ct. 46, 1 L.Ed.2d 52 (1956), the court was faced with a purchase contract which provided that the buyer could terminate the agreement if he could not obtain financing from a particular bank. The court, relying on Ogsbury, supra, held that the agreement was not a purchase because the buyer had not incurred an irrevocable liability to take and pay for" }, { "docid": "2463280", "title": "", "text": "precedent to the merger. The conditions were satisfied, the merger closed, and the shares exchanged on December 31, 1976. In his complaint, Portnoy alleged that either the Letter of Intent or the Merger Agreement constituted a § 16(b) “sale.” According to Portnoy, because Cooper pledged its stock in support of the Revlon merger, and because the conditions precedent to the closing of the merger were beyond the control of Cooper and required no action on the part of Cooper, Cooper was “irrevocably bound” to exchange its Barnes-Hind stock for Revlon stock no later than July 29, 1976. Therefore, a § 16(b) “sale” occurred no later than July 29, 1976, well within six months of Cooper’s May, 1976 purchases of Barnes-Hind stock. The Seventh Circuit held that neither the Letter of Intent nor the Merger Agreement constituted a contract to sell shares within the scope of § 16(b). In so holding, the court reasoned that a sale occurs when an insider becomes “so irrevocably bound to dispose of his securities so that his rights and obligations [become] fixed and the opportunity for speculative abuse [is] removed.” Revlon, 650 F.2d at 898. The court found that the Letter of Intent and the Merger Agreement did not irrevocably bind Cooper to exchange its Barnes-Hind stock because (1) Cooper retained the right to unilaterally dispose of its Barnes-Hind shares to unrelated third parties, continuing the potential for speculative trading by an insider, until the merger closed; and (2) the significant conditions precedent to the merger set out in the Merger Agreement were not fulfilled until December, 1976, and nonfulfillment of any of the conditions could have blocked the consummation of the merger. As in Revlon, assuming there was a secret agreement, this agreement did not constitute a “sale” by Koppers of its Cutler-Hammer shares, in the sense of an irrevocable commitment and a fixing of Kopper’s rights and obligations. Until January 2, 1979, the date the merger closed, despite the alleged secret agreement, Koppers retained the right to dispose of its Cutler-Hammer stock to unrelated third parties. Also, the significant conditions precedent to the" }, { "docid": "2264469", "title": "", "text": "terms of conditions precedent occur. Yarbrough v. Stiles, 717 S.W.2d 886 (Tenn. App.1986). Thus, “[w]hen a purchase agreement is contingent upon the buyer obtaining financing, implied in that agreement is a duty upon the buyer to make a reasonable effort to obtain adequate financing.” Educational Placement Service, Inc. v. Watts, supra, citing Covington v. Robinson, supra. In Covington, plaintiffs sought the return of $100,000 in earnest money paid to the defendants following the negotiation of a conditional agreement whereby plaintiffs agreed to purchase a large tract of farmland from defendants. Plaintiffs were obligated by the terms of the conditional agreement to attempt to obtain a loan that would supply 75% of the purchase price. Plaintiffs negotiated a loan that supplied only 73.98% of the purchase price and thereafter declined to close the deal because the loan condition precedent had not been met. There was conflicting evidence in the record concerning whether plaintiffs applied for the maximum loan amounts. However, there was no evidence showing any attempt by plaintiffs to reach the 75% loan amount after being granted a loan in a lower amount. The Tennessee Court of Appeals upheld the lower court’s finding that plaintiffs breached the contract by failing to make good faith efforts to obtain a loan in an amount that met the 75% loan contingency requirement after applying for and receiving a loan in an amount less than the required amount. Plaintiffs’ failure to make any efforts to increase the loan amount was sufficient evidence to support the trial court’s finding that plaintiffs did not exercise reasonable diligence in their performance of the conditions precedent. Id. at 646. The evidence, when viewed in a light most favorable to EDC and MWC, raises a genuine issue concerning D & J’s good faith performance of the conditions precedent sufficient to withstand a motion for summary judgment. 1. The Financing Agreement Condition. As evidence in support of its claim that attempts to obtain financing were pursued with due diligence, D & J relies on its receipt of an informal, loan commitment letter from FAB on September 15, 1987, only two" }, { "docid": "1045622", "title": "", "text": "construction of the term “purchase” is a matter of federal law. Bershad v. McDonough, 428 F.2d at 696. Under federal law, it is well settled that an insider acquires stock for purposes of § 16(b) when he has incurred an irrevocable liability to take and pay for the stock and his rights and obligations have become fixed even though the formalities necessary for the transfer of title may not have yet occurred. Provident Securities Co. v. Foremost-McKesson, Inc., 506 F.2d 601, 606-07 (9th Cir.1974), aff'd, 423 U.S. 232, 96 S.Ct. 508, 46 L.Ed.2d 464 (1976); Champion Home Builders Co. v. Jeffress, 490 F.2d at 615; Silverman v. Landa, 306 F.2d 422, 424 (2d Cir.1962); Blau v. Ogsbury, 210 F.2d 426, 427 (2d Cir.1954). Riseman contends that he tendered the September check in order to “preserve” his option after he ceased to be a director and that such payment did not create an irrevocable obligation to take and pay for the stock where a material precondition remained unfulfilled. In considering the appropriate significance to be given to the “condition precedent” it is necessary to survey the circumstances in which Riseman makes his claims. Riseman had served on the Orion Board of Directors in various other executive capacities for twenty years when the stock option resolution came up for a board vote. Although the details of the board discussion at the time of adoption were not recorded, it is obvious that the option agreement was intended to be structured so that the underlying securities could be sold within the § 4(2) private offering exemption. Riseman attended the meeting, voted on the motion, received the option agreement, and sought to take advantage of the option. Clearly, Riseman knew or should have known that an option could not be exercised by anyone who no longer was privy to the type of information that would be contained in a registration statement. Moreover, the option agreement, itself, stated that if a holder ceased to be a director before the next annual stockholders’ meeting the option terminated immediately. We find it hard to believe that Riseman, a" }, { "docid": "20787531", "title": "", "text": "Agreement in the case at bar did not irrevocably bind the parties. Cooper remained subject to market risks until the date of closing because the sale of stock was in terms of an exchange ratio rather than a fixed price as in Foremost-McKesson. More importantly, consummation of the Revlon merger was contingent upon several major conditions that were not satisfied until shortly before the closing. The requirements for closing set forth in the Merger Agreement were more than just the “usual conditions precedent to closing.” They constituted significant roadblocks that could have doomed the Revlon merger. We hold that there was no “sale” by Cooper of its Barnes-Hind shares until the closing held on December 31,1976. Consequently, there was no purchase and sale by Cooper within six months, and § 16(b) was not violated. Ill For the foregoing reasons, the judgment of the district court granting summary judgment to defendants and dismissing Portnoy’s complaint is AFFIRMED. . Section 16(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78p(b) states: For the purpose of preventing the unfair use of information which may have been obtained by such [more than 10%] beneficial owner, director, or officer by reason of his relationship to the issuer, any profit realized by him from any purchase and sale, or any sale and purchase, of any equity security of such issuer (other than an exempted security) within any period of less than six months, unless such security was acquired in good faith in connection with a debt previously contracted, shall inure to and be recoverable by the issuer, irrespective of any intention on the part of such beneficial owner, director, or officer in entering into such transaction of holding the security purchased or of not repurchasing the security sold for a period exceeding six months. Suit to recover such profit may be instituted at law or in equity in any court of competent jurisdiction by the issuer, or by the owner of any security of the issuer in the name and in behalf of the issuer if the issuer shall fail or refuse to bring" }, { "docid": "1045625", "title": "", "text": "purchase price and the amount of stock to be purchased remained unfixed and was not actually known until the day prior to the closing, nearly three and one-half years after the agreement was made. In Stella v. Graham-Paige Motors Corp., 232 F.2d 299 (2d Cir.), cert. denied, 352 U.S. 831, 77 S.Ct. 46, 1 L.Ed.2d 52 (1956), the Second Circuit found that where a “letter agreement” provided that the buyer would use its best efforts to borrow the amount necessary to make the down payment on the stock, but if the purchaser were unable to obtain the loan the seller could terminate the agreement, no “purchase” had occurred. Id. at 301. In Stella, the condition precedent was subject to the actions of a third person and the buyer was obligated to use good faith efforts to secure the fulfillment of the condition. In this case, Riseman, alone, controlled the completion of the contract and only his attempt to avoid the clear requirements of the option caused the contract to remain in limbo. See Champion Home Builders v. Jeffress, 490 F.2d at 619 (Good faith can be relevant to classifying a transaction as a purchase or sale within the scope of § 16(b).). In Portnoy v. Revlon, 650 F.2d 895 (7th Cir.1981), the court found that neither a “letter of intent” nor an agreement constituted a purchase under § 16(b) where a merger agreement contained five conditions precedent including such items as a favorable IRS ruling, an opinion from a specific accounting firm that the merger would be treated as a “pooling of interests,” and consummation of several employment agreements. The conditions precedent were in the control of third parties, and were performed before consideration was given. As in Stella, the Portnoy court interpreted the prepurchase agreements to commit the purchaser and seller to proceed in good faith. Id. at 899. The court in Lewis v. Realty Equities Corp. of New York, 373 F.Supp. 829 (S.D.N.Y.1974), when faced with a choice between a purchase date that corresponded to the fulfillment of a condition precedent or a subsequent closing date at which" }, { "docid": "20787523", "title": "", "text": "for consummation of the merger may not be resolved or that a more attractive merger partner may suddenly appear. Consequently, because Cooper retained its power to dispose of its Barries-Hind shares in an alternative, potentially speculative manner, there was no “sale” for purposes of § 16(b) by Cooper of its Barnes-Hind shares as a result of the documents executed on June 11, 1976. See Champion Home Builders Co. v. Jeffress, 490 F.2d 611, 614-17 (6th Cir.), cert. denied, 416 U.S. 986, 94 S.Ct. 2390, 40 L.Ed.2d 763 (1974) (preliminary handshake agreement for acquisition, and subsequent Board of Directors’ authorization to negotiate, did not constitute an ir revocable commitment to sell for purposes of § 16(b)). C Portnoy’s alternative candidate for a “sale” by Cooper within six months of the May purchases is the July 29 Merger Agreement executed by Barnes-Hind and Revlon. Butj the terms of the Merger Agreement reveal that it too did not irrevocably bind Cooper to dispose of its shares such that no further potential for speculative abuse of an insider position remained. The significant conditions precedent to closing contained in the Merger Agreement compel us to hold that no “sale” occurred on July 29. As the Merger Agreement states, and as the district court found, consummation of the merger was subject to, inter alia, the following significant conditions: 1. The receipt from IRS of a ruling, satisfactory to Revlon’s counsel, that the merger would qualify as a tax free reorganization under § 368(a) of the IRC; 2. The receipt from Peat Marwick Mitchell & Co. of an opinion that the contemplated merger would be treated as a ‘pooling of interests’ for accounting purposes; 3. The exercise by the holders of fewer than 27,380 shares of Barnes-Hind stock of the right of dissenting shareholders to require Barnes-Hind to purchase their shares for fair market value; 4. The consumation [sic] of employment agreements between Revlon and certain named employees of Barnes-Hind; 5. The consumation [sic] of non-competition undertakings by certain shareholders of Barnes-Hind. Portnoy v. Revlon, No. 78 C 4980, Memorandum Opinion at 4-5. The nonfulfillment of any" }, { "docid": "20787536", "title": "", "text": "merger. We note, however, that in other circumstances shareholder approval may constitute a significant condition precedent to closing and could affect our determination of when a “sale” of securities occurs for purposes of § 16(b). . The applicable law regarding shareholder appraisal rights, Cal.Corp.Code § 4301, grants dissenting shareholders 30 days, after notice of shareholder approval of the merger or consolidation is mailed, in which to demand that the issuer corporation purchase their shares for the fair market value of the shares as of the day prior to shareholder approval. In the case at bar, dissenting shareholders had 30 days after the November 30, 1976 shareholder meeting during which to demand their appraisal right. . See also Champion Home Builders Co. v. Jeffress, 490 F.2d 611 (6th Cir.), cert. denied, 416 U.S. 986, 94 S.Ct. 2390, 40 L.Ed.2d 763 (1974) (where no conditions to closing in the acquisition agreement were in issue, the court held that a purchase of stock within § 16(b) took place upon execution and board approval of a written acquisition agreement, and not upon an earlier board approval of a commitment to buy); Morales v. Reading & Bates Offshore Drilling Co., 392 F.Supp. 41, 44-5 (N.D.Okl.1975) (interpret “purchase” and “sale” in terms of irrevocable liability)." }, { "docid": "6109257", "title": "", "text": "the parties to the transaction are committed to one another. Radiation Dynamics, 464 F.2d at 891. Judge Pollack further instructed that: “ ‘Commitment’ is a simple and direct way of designating the point at which, in the classical contractual sense, there was a meeting of the minds of the parties; it marks the point at which the parties obligated themselves to perform what they had agreed to perform even if the formal performance of their agreement is to be after a lapse of time.... ” Id. at 891. This analysis is also consistent with the approach used in the context of claims brought under Section 16(b) of the Securities Exchange Act of 1934. 15 U.S.C. § 78p(b). The definition of “purchase and sale” used by Courts in analyzing claims under Section 16(b) is substantially similar to the definition under Section 10(b). Section 16(b) prohibits a purchase and sale or sale and purchase of an issuer’s stock by officers, directors, or beneficial owners of more than 10% of any class of securities of the issuer—in other words, corporate “insiders”—within any period of less than six months. In determining the point at which the insider purchased or sold a security, courts look at the context of the transaction to determine when the insider became irrevocably bound to dispose of his or her securities. Riseman v. Orion Research, Inc., 749 F.2d 915, 918-919 (1st Cir.1984); Jammies Intern. Inc. v. Nowinski 700 F.Supp. 189, 193 (S.D.N.Y.1988). In Portnoy v. Revlon, Inc., 650 F.2d 895 (7th Cir.1981), the Seventh Circuit affirmed the district court’s determination that the point of sale for the purposes of the transaction at issue in the case was the closing date of the merger through which the insider obtained shares in a stock exchange. The Seventh Circuit found that the sale did not occur until the closing date of the merger, because the merger agreement contained significant conditions precedent that could have blocked consummation of the transaction. Id. at 900. The Court noted the fact that the insider had lost control of the transaction after a certain point, but explained: “That" }, { "docid": "1045624", "title": "", "text": "director with a fiduciary obligation to Orion, did not intend to purchase the securities when he paid the purchase price on the last day he could safely purchase without exposing Orion to possible § 5 liability and when the option, by its own terms, could (and did) terminate the following day. Apart from other considerations, we would find it difficult to support an interpretation of “purchase” that would permit Riseman to escape remedial liability by trying to force the company to whom he owed a fiduciary duty to risk a violation of the registration provisions of the securities laws and subject itself to substantial criminal and civil liabilities. Although other courts in very different factual circumstances have found that a “purchase” did not occur until the performance of a condition precedent, those cases are distinguishable from the case before us. In Booth v. Varian Associates, 334 F.2d 1 (1st Cir.1964), cert. denied, 379 U.S. 961, 85 S.Ct. 651, 13 L.Ed.2d 556 (1965), this court found that a “firm agreement” was not a purchase where the purchase price and the amount of stock to be purchased remained unfixed and was not actually known until the day prior to the closing, nearly three and one-half years after the agreement was made. In Stella v. Graham-Paige Motors Corp., 232 F.2d 299 (2d Cir.), cert. denied, 352 U.S. 831, 77 S.Ct. 46, 1 L.Ed.2d 52 (1956), the Second Circuit found that where a “letter agreement” provided that the buyer would use its best efforts to borrow the amount necessary to make the down payment on the stock, but if the purchaser were unable to obtain the loan the seller could terminate the agreement, no “purchase” had occurred. Id. at 301. In Stella, the condition precedent was subject to the actions of a third person and the buyer was obligated to use good faith efforts to secure the fulfillment of the condition. In this case, Riseman, alone, controlled the completion of the contract and only his attempt to avoid the clear requirements of the option caused the contract to remain in limbo. See Champion Home" }, { "docid": "20787534", "title": "", "text": "First, Cooper asserts that the Mutual General Release executed by Barnes-Hind and Cooper at the closing of the Revlon merger precludes this suit against Cooper by an alleged successor-in-interest to Barnes-Hind. Second, Cooper argues that Portnoy, as only a subsequent purchaser of Revlon stock, lacks standing to sue on behalf of Barnes-Hind. Finally, Cooper argues that if the June or July agreements are deemed to be sales by Cooper, Portnoy failed to file suit within the two year statute of limitations set forth in § 16(b). . We have assumed, for purposes of deciding whether there was a purchase and sale within six months, that Cooper was an insider under § 16(b). Our discussion here and elsewhere, however, does not reflect any opinion by this Court as to whether Cooper’s position in Barnes-Hind gave rise to a potential for speculative abuse that would have made the exception for “unorthodox transactions” set forth in Kern County inapplicable. We do not reach that issue, see discussion accompanying note 4, supra. . We leave open the possibility that under certain circumstances a “sale” for purposes of § 16(b) may occur prior to closing once the significant conditions precedent have been fulfilled. See Provident Securities Co. v. Foremost-McKesson, Inc., 506 F.2d 601, 607 (9th Cir. 1974), aff’d on other grounds, 423 U.S. 232, 96 S.Ct. 508, 46 L.Ed.2d 464 (1976) (underwriting was subject only to usual conditions precedent and only substantial condition precedent to closing was satisfied as of date the agreement was executed). In the case at bar, it is clear that several of the significant conditions precedent to closing, including the exercise of dissenting, shareholder appraisal rights and the receipt of the Internal Revenue Service approval that the merger would be a tax-free reorganization, were not fulfilled until after expiration of the six month statutory period. . We assume that the requisite 66%% shareholder approval did not present a significant condition precedent to closing in this case because Cooper and other significant shareholders comprising at least 66%% of the outstanding Barnes-Hind stock had agreed to vote their shares in approval of the" }, { "docid": "1045626", "title": "", "text": "Builders v. Jeffress, 490 F.2d at 619 (Good faith can be relevant to classifying a transaction as a purchase or sale within the scope of § 16(b).). In Portnoy v. Revlon, 650 F.2d 895 (7th Cir.1981), the court found that neither a “letter of intent” nor an agreement constituted a purchase under § 16(b) where a merger agreement contained five conditions precedent including such items as a favorable IRS ruling, an opinion from a specific accounting firm that the merger would be treated as a “pooling of interests,” and consummation of several employment agreements. The conditions precedent were in the control of third parties, and were performed before consideration was given. As in Stella, the Portnoy court interpreted the prepurchase agreements to commit the purchaser and seller to proceed in good faith. Id. at 899. The court in Lewis v. Realty Equities Corp. of New York, 373 F.Supp. 829 (S.D.N.Y.1974), when faced with a choice between a purchase date that corresponded to the fulfillment of a condition precedent or a subsequent closing date at which an acquisition was consummated by payment and the transfer of the stock, chose the latter, both because the closing transaction resembled the conventional exercise of an option and because the court sought the interpretation which provided the broadest coverage for § 16(b). Id. at 831-32. In spirit, this case is most akin to Ber-shad v. McDonough, 428 F.2d 693 (7th Cir.1970), cert. denied, 400 U.S. 992, 91 S.Ct. 458, 27 L.Ed.2d 440 (1971), wherein two persons purchased more than ten percent of the issuer’s stock and became beneficial owners or insiders. Less than six months later, the insiders entered into an agreement to sell virtually all their stock at a substantial profit. At the time of the agreement, the insiders accepted 14% of the purchase price as an option or “binder,” and delivered their stock to an escrow agent. After the six-month period had elapsed, the purchaser paid the balance and the shares were transferred. The court rejected defendants’ contentions that the sale had not occurred until the stock was transferred, stating: “the insider should" }, { "docid": "6109258", "title": "", "text": "words, corporate “insiders”—within any period of less than six months. In determining the point at which the insider purchased or sold a security, courts look at the context of the transaction to determine when the insider became irrevocably bound to dispose of his or her securities. Riseman v. Orion Research, Inc., 749 F.2d 915, 918-919 (1st Cir.1984); Jammies Intern. Inc. v. Nowinski 700 F.Supp. 189, 193 (S.D.N.Y.1988). In Portnoy v. Revlon, Inc., 650 F.2d 895 (7th Cir.1981), the Seventh Circuit affirmed the district court’s determination that the point of sale for the purposes of the transaction at issue in the case was the closing date of the merger through which the insider obtained shares in a stock exchange. The Seventh Circuit found that the sale did not occur until the closing date of the merger, because the merger agreement contained significant conditions precedent that could have blocked consummation of the transaction. Id. at 900. The Court noted the fact that the insider had lost control of the transaction after a certain point, but explained: “That one party has completed whatever steps it can take does not finalize the transaction if significant obstacles to closing remain to be faced. There was no irrevocable commitment to exchange shares until the significant conditions precedent to closing were fulfilled.” Id. at 901. The reasoning in Portnoy is applicable to the instant case, as the parties’ obligation to exchange their stock was subject to the fulfillment of significant conditions under the merger agreement. So while there is no clearly controlling authority that directs that the effective date here for purposes of Section 12(a)(2) is after the shareholder vote, the persuasive authority suggests the possibility. Plaintiffs do not allege that the effective date is any later than December 29, 2000, but perhaps they should have. While I am not interested in advancing arguments that the parties themselves have not made, I am also aware that under the circumstances of this case, where developments in the clinical trial were happening at the same time as the merger process was occurring, the effective date is a vital determination." }, { "docid": "20787516", "title": "", "text": "than six months. The issuer, or one suing on behalf of the issuer, may recover from the insider any profit derived from the short-swing transaction. It is uncontested that prior to Cooper’s May purchases of Barnes-Hind stock, Cooper already held more than 10% of Barnes-Hind’s stock. The critical ques tion in this case is whether there was a sale of securities within six months of the May purchases. The closing at which Cooper physically exchanged its Barnes-Hind stock for Revlon stock occurred on December 31, 1976, well beyond six months after the most recent purchase, and, consequently, beyond the scope of § 16(b)’s reach. Thus, for Portnoy to establish a short-swing profit by Cooper in violation of § 16(b), he must prove that either the June 11 Letter of Intent or the July 29 Merger Agreement constituted a “sale” of Cooper’s Barnes-Hind stock. Portnoy argues that either agreement can be interpreted as irrevocably binding Cooper to exchange its Barnes-Hind stock for Revlon stock. According to Portnoy, since Cooper pledged its stock in support of the Revlon merger, and since the conditions precedent to closing the transaction were beyond the control of Cooper and required no more actions by Cooper, this Court should hold that, for purposes of § 16(b), Cooper “sold” its Barnes-Hind stock no later than July 29, 1976, thus well within six months of the May purchases. Portnoy’s argument, however, is not supported either by the facts of this case or by the applicable case law under § 16(b). A Our inquiry is limited to whether execution of the June 11 Letter of Intent or the July 29 Merger Agreement constituted a “sale” of Cooper’s shares of Barnes-Hind within the meaning of § 16(b). The only statutory guidance as to what constitutes a “sale” of securities for purposes of § 16(b) is the general definition provided by § 3(a)(14) of the Securities Exchange Act of 1934, 15 U.S.C. § 78c(a)(14), which states that “[t]he terms ‘sale’ and ‘sell’ each include any contract to sell or otherwise dispose of.” Although this definition indicates that something less than final execution" }, { "docid": "20787519", "title": "", "text": "v. McDonough, 428 F.2d at 697. We must examine “the factual circumstances of the transaction, the sequence of relevant transactions, and whether the insider is ‘purchasing’ or ‘selling’ the security.” Id. We then must integrate the technical aspects of the transaction with the remedial purposes of § 16(b), and determine when the insider became so irrevocably bound to dispose of his securities so that his rights and obligations became fixed and the opportunity for speculative abuse was removed. Freeman v. Decio, 584 F.2d 186, 200 (7th Cir. 1978) (“it is well settled that an insider acquires stock for purposes of 16(b) when he has ‘incurred an irrevocable liability to take and pay for the stock’ and his ‘rights and obligations become fixed.’ Blau v. Ogsbury, 210 F.2d 426, 427 (2d Cir. 1954); Silverman v. Landa, 306 F.2d 422, 424 (2d Cir. 1962)”). See Provident Securities Co. v. Foremost-McKesson, Inc., 506 F.2d 601, 606-07 (9th Cir. 1974), aff’d, 423 U.S. 232, 96 S.Ct. 508, 46 L.Ed.2d 464 (1976); Champion Home Builders Co. v. Jeffress, 490 F.2d 611, 615-18 (6th Cir.), cert. denied, 416 U.S. 986, 94 S.Ct. 2390, 40 L.Ed.2d 763 (1974); Stella v. Graham-Paige Motors Corp., 232 F.2d 299, 301 (2d Cir.), cert. denied, 352 U.S. 831, 77 S.Ct. 46, 1 L.Ed.2d 52 (1956). B We turn first to the June 11 Letter of Intent. This letter sets forth the general terms of the proposed Barnes-Hind/Revlon merger, including the exchange ratio, the proposed closing date, some major conditions precedent to closing, and the prerequisites for executing formal merger documents. The Letter of Intent states that it “is only a statement of intent and does not constitute the contractual commitment of the parties hereto.” Cooper signed an addendum to the Letter of Intent stating that it consented to Barnes-Hind entering into the Letter of Intent. Cooper also executed a separate “Agreement as to Voting” stating that Cooper would present its Barnes-Hind shares at any shareholders meeting and would vote its shares in favor of the proposed Revlon acquisition “subject to the preparation of the definitive acquisition agreement in accordance with the" } ]

[ { "docid": "22604798", "title": "", "text": "May 9, 2007), responds to this Court’s request in Mir-zoyan and articulates the BIA’s standard for evaluating nonphysical harm, including economic harm. Based on this intervening decision, and because we are unable to determine the standard that the IJ applied to petitioners’ claim of economic persecution, the proper course is to remand to the BIA for further consideration in light of In re T-Z-. IV. For all of these reasons, the Court concludes that the IJ erred in considering the petitioners’ claim of past persecution. Assuming that the petitioners can establish their claim of past persecution, the Government on remand will have to overcome a rebuttable presumption that the petitioners have a well-founded fear of future persecution. Therefore, because we cannot confidently predict whether, under these circumstances and absent the IJ’s errors, the BIA would adhere to its prior decision denying the petitioners’ applications for asylum, we remand. See Uwais, 478 F.3d at 519 n. 1; Beskovic, 467 F.3d at 227; Because the errors in the IJ’s analysis of the petitioners’ claim for asylum bear on the petitioners’ eligibility for withholding of deportation (or removal) under the INA and relief under the CAT, we remand these latter claims as well. See, e.g., Abankwah v. I.N.S., 185 F.3d 18, 26 (2d Cir.1999). CONCLUSION For all of the reasons discussed above, the petition for review is Granted. The decision of the BIA is Vacated, and the case is Remanded for further proceedings consistent with this opinion. . The procedure now referred to as \"withholding of removal” was previously described as \"withholding of deportation,” the term used in the IJ's decision. See Tandia v. Gonzales, 437 F.3d 245, 247 n. 5 (2d Cir.2006). . The fourth child, Karishma Manzur, had her applications for asylum and withholding of deportation under the Act, and withholding of deportation under the CAT, denied together with those of the rest of her family, but she was granted a suspension of deportation and thus is not a party to this petition for review. . Although we discuss the IJ’s analysis of certain individual claims, the IJ should address and—if" } ]

[ { "docid": "22675840", "title": "", "text": "his wife and his alleged decision to join the CDP. Finally, the BIA “agree[d] with the Immigration Judge’s alternative finding that, even if the asylum application had been timely filed, it must be denied for lack of evidence of past persecution or a well-founded fear of future persecution.” Id. II. Discussion “Where the BIA adopts the decision of the IJ and merely supplements the IJ’s decision ... we review the decision of the IJ as supplemented by the BIA.” Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). To establish his eligibility for asylum, an alien who does not claim past persecution must establish that he faces a “reasonable possibility of future persecution” based on a statutorily recognized characteristic. Kyaw Zwar Tun v. INS, 445 F.3d 554, 565 (2d Cir.2006) (internal quotation marks omitted); 8 U.S.C. § 1101(a)(42) (including political opinion among these characteristics). To establish his eligibility for withholding of removal, such an applicant “must show that it is more likely than not that [ ]he would suffer future persecution ... if returned to the country of removal.” Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 105 (2d Cir.2006) (internal quotation marks omitted). Finally, to establish eligibility for relief under the Convention Against Torture (“CAT”), such an applicant must show that “it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” Ramsameachire v. Ashcroft, 357 F.3d 169, 184 (2d Cir.2004) (quoting 8 C.F.R. § 208.16(c)(2)). We review the agency’s factual findings — including any adverse credibility finding — for substantial evidence, treating these as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We review the agency’s legal conclusions de novo. See, e.g., Jiang v. Bureau of Citizenship and Immigration Servs., 520 F.3d 132, 135 (2d Cir.2008). A. Timeliness of Leng’s application for asylum Leng contends that the IJ did not “fair[ly] assess[ ] ... the evidence in the record” when evaluating his claim that changed and extraordinary circumstances justified his failure to apply for asylum" }, { "docid": "22444856", "title": "", "text": "PER CURIAM. Petitioner Shao Yan Chen, a native and citizen of the People’s Republic of China, petitions this Court for review of a September 26, 2003 decision of the Board of Immigration Appeals (“BIA”) summarily affirming a June 11, 2002 decision of an Immigration Judge (“IJ”) denying petitioner’s applications for asylum, withholding of removal, and relief under the United Nations Convention Against Torture and Other Inhuman or Degrading Treatment or Punishment. The IJ denied petitioner’s claims for relief because, inter alia, the IJ held that Chen could not establish eligibility for immigration relief solely on the basis of his mother’s alleged forced sterilization. We agree. The BIA has, itself, held only that, under § 601(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), the forced sterilization or abortion of one spouse is an act of persecution against the other spouse and that, as a result, the spouses of those directly victimized by coercive family planning policies are per se as eligible for asylum as those directly victimized themselves. See In re C-Y-Z-, 21 I. & N. Dec. 915 (BIA 1997) (en banc). But in a number of recent cases, this Court has as a de novo matter considered the limits to the universe of others who may, pursuant to IIRIRA § 601(a), claim that they are “refugees” eligible for immigration relief on the basis of their relationships to those directly victimized by coercive family planning policies. See Ai Feng Yuan v. U.S. Dep’t of Justice, Nos. 416 F.3d 192, 2005 WL 1745200 (2d Cir. July 26, 2005) (holding that a parent or parent-in-law of a person persecuted under a coercive family planning policy is not per se as entitled to relief under IIRIRA § 601(a) as those di rectly victimized themselves); see also Shi Liang Lin v. U.S. Dep’t of Justice, 416 F.3d 184, 2005 WL 1791996 (2d Cir. July 29, 2005) (remanding a series of cases to the BIA for a more detailed explanation about the eligibility of “boyfriends” and “fianeés” under IIRIRA § 601(a)). We believe that the Court’s decision in Ai Feng Yuan" }, { "docid": "22773845", "title": "", "text": "a fine; and (7) the 2002 State Department Report was inconsistent with Yan’s testimony that many individuals from Fujian Province were able to have extra children if they paid a fine. In re Wensheng Yan, No. [ AXX XXX XXX ] (Immig. Ct. Hartford May 8, 2003). The BIA affirmed the IJ’s decision without opinion. In re Wensheng Yan, No. [ AXX XXX XXX ] (B.I.A. Aug. 4, 2004). Yan petitions for review of the BIA’s order. II. Discussion A. Standard of Review Where, as here, the BIA affirms an IJ’s decision without issuing an opinion, see 8 C.F.R. § 1003.1(e)(4), this Court reviews the IJ’s decision as the final agency determination. See, e.g., Timm v. INS, 411 F.3d 54, 58 (2d Cir.2005); Yu Sheng Zhang v. U.S. Dep’t of Justice, 362 F.3d 155, 159 (2d Cir.2004). This Court reviews the agency’s factual findings under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see, e.g., Zhou Yun Zhang v. INS, 386 F.3d 66, 73 & n. 7 (2d Cir.2004), overruled in part on other grounds, Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 305 (2d Cir.2007) (en banc). However, we will vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed. See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir.2005). In this case, the alleged flaw relates to the sufficiency of the evidence and the explanation supporting the IJ’s finding that the petitioner’s account of persecution was implausible. This Court generally will not disturb adverse credibility determinations that are based on “specific examples in the record of inconsistent statements ... about matters material to [an applicant’s] claim of persecution, or on contradictory evidence or inherently improbable testimony regarding such matters.” Zhou Yun Zhang, 386 F.3d at 74 (internal quotation marks omitted). B. Inherently Implausible Testimony It is well settled that, in assessing the credibility of an asylum applicant’s testimony, an IJ is entitled to consider whether the applicant’s" }, { "docid": "22659240", "title": "", "text": "have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion. 8 U.S.C. § 1101(a)(42). The next year, the BIA held that “past persecution of one spouse can be established by coerced abortion or sterilization of the other spouse,” so that spouses of individuals directly victimized by coercive family planning policies are per se eligible for asylum pursuant to § 1101(a)(42). See Matter of C-Y-Z-, 21 I. & N. Dec 915, 917-18 (B.I.A.1997) (en banc). The BIA gave no reasons for reading the statute to compel this result. Petitioner Lin entered the United States in January 1991 and filed an application for asylum and withholding of removal in June 1993. According to Lin’s application, he had sought the required governmental permission to marry his girlfriend and have children with her, but she was too young under Chinese law. After his girlfriend became pregnant and was forced to have an abortion, Lin left China. His girlfriend remained in China because she was too weak to travel. Following a hearing, the IJ found Lin credible, but concluded that he did not qualify for asylum based on his girlfriend’s forced abortion and denied the petition. The BIA affirmed without opinion. See In re Shi Liang Lin, No. [ AXX XXX XXX ] (B.I.A. Sept. 29, 2002), aff'g No. [ AXX XXX XXX ] (Immig. Ct. N.Y. City May 9, 2000). Petitioner Dong attempted to enter the United States in October 1999, and was detained by INS officials. When the INS commenced removal proceedings, Dong requested asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). His asylum petition was based on a claim that his fiancée (who continued to reside in China) had been forced to undergo two abortions and that he would be jailed and fined for having left China illegally were he to be deported." }, { "docid": "22541040", "title": "", "text": "PER CURIAM: Recently, the Board of Immigration Appeals (“BIA”) set down standards for re viewing determinations that an applicant’s asylum application was frivolous under section 208(d) of the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1158(d)(4), (6). In re Y-L- 24 I. & N. Dec. 151, 155 (B.I.A.2007). In the two cases currently before us, consolidated for disposition, the BIA upheld frivolousness determinations before the decision in Y-L-was rendered. We remand these cases in order to give the agency an opportunity, in the first instance, to reconsider its rulings in light of Y-L- and to further clarify the guidelines for review set forth in Y-L-. Petitioner Biao Yang, a native and citizen of the People’s Republic of China, applied for asylum and withholding of removal under the INA, 8 U.S.C. §§ 1158, 1231(b)(3), and for relief under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”), Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85. In January 2005, Immigration Judge (“IJ”) Paul A. DeFonzo denied Yang’s application based on his findings that Yang’s asylum application was time-barred, see 8 U.S.C. § 1158(a)(2)(B), and that Yang lacked credibility. The IJ also concluded that petitioner’s application was frivolous under 8 U.S.C. §§ 1158(d)(4), (6). The decision was affirmed by the BIA on May 10, 2006, “except insofar as [the IJ] found that [Yang] had not established extraordinary circumstances for failing to meet the 1-year deadline for filing an asylum application.” In re Biao Yang, No. [ AXX XXX XXX ] (B.I.A. May 10, 2006), ajfg No. [ AXX XXX XXX ] (Immig. Ct. N.Y. City Jan. 7, 2005). Petitioner Ming Liang Lin, also a native and citizen of the People’s Republic of China, applied for asylum, withholding of removal, and CAT relief in March 2001. In December 2004, IJ Noel Ferris denied Lin’s claims on adverse credibility grounds. The IJ also concluded that petitioner’s application was frivolous. Both of these determinations were affirmed, without opinion, by the BIA on June 12, 2006. In re Ming Liang Lin, No. [ AXX XXX XXX" }, { "docid": "20206590", "title": "", "text": "PER CURIAM: This case calls upon us in principal part to determine whether the opinion of the Board of Immigration Appeals (“BIA”) in In re M-F-W & L-G, 24 I. & N. Dec. 633 (BIA 2008), describing when forced insertion of an intrauterine device (“IUD”) constitutes persecution, is a permissible interpretation of the Immigration and Nationality Act (“INA”). Petitioner Xia Fan Huang seeks review of a decision of the Board of Immigration Appeals affirming the May 24, 2005 decision of Immigration Judge (“IJ”) Douglas Schoppert, denying her applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Xia Fan Huang, No. [ AXXX XXX XXX ] (B.I.A. Oct. 28, 2008), aff'g No. [ AXXX XXX XXX ] (Immig. Ct. N.Y. City May 24, 2005). We hold that the agency’s interpretation is entitled to deference, and therefore deny the petition for review. BACKGROUND Xia Fan Huang is a native and citizen of the People’s Republic of China (“China”) who entered the United States in June 2004 without valid entry documents and was placed in removal proceedings. In December 2004, Huang submitted applications for asylum, withholding of removal, and relief under the Convention Against Torture. In the statement attached to her application, Huang claimed that (1) she feared persecution because her father is wanted by the local public security bureau because he practices Falun Gong, (2) she had an IUD inserted following the birth of her only child, but fears persecution because she had it removed by a doctor in the United States, (3) although she is divorced and her husband has custody of their only son, she will be unable to have children if she remarries (which she desires), (4) she will be forced to undergo an abortion or sterilization if she becomes pregnant, and (5) she will be tortured if returned to China because she departed China illegally. In May 2005, at the conclusion of a hearing on the merits of Huang’s claims, the IJ found that she had not demonstrated eligibility for relief. The IJ concluded, inter alia, that a forced IUD insertion" }, { "docid": "22921776", "title": "", "text": "Finally, the BIA denied Aliyev withholding of removal or relief under the CAT. Aliyev both petitioned this Court for review and moved the BIA to reconsider its decision. On June 13, 2007, the BIA denied Ali-yev’s motion to reconsider, again concluding that the Stipulation did not contest the BIA’s prior findings concerning the nongovernmental actors. The decision stated that the Board had reviewed the alleged acts of the civilian Kazakhs when it reevaluated Aliyev’s claims but did not find them to be acts of persecution as contemplated by the Immigration and Nationality Act (“INA”), and therefore did not consider them in assessing the cumulative effect of multiple acts of harassment. Aliyev petitioned this Court for review of the BIA’s denial of his motion to reconsider. DISCUSSION A. Standard of Review “When the BIA issues an opinion, the opinion becomes the basis for judicial review of the decision of which the alien is complaining.” Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005) (quotation marks omitted). In this instance, as the BIA “did not adopt the decision of the IJ to any extent, nor is the BIA’s per curiam opinion merely supplemental” to the IJ’s decision, id., we review the decision of the BIA alone. We assess the agency’s factual findings under the substantial evidence standard, but review the BIA’s application of legal principles to undisputed facts de novo. Diallo v. INS, 232 F.3d 279, 287 (2d Cir.2000). The denial of a motion to reconsider is reviewed for an abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam). B. Analysis To establish eligibility for asylum, an applicant must show that he or she is a refugee who has suffered past persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, or has a well-founded fear of persecution on one of these grounds. See 8 U.S.C. § 1101(a)(42); Island v. Gonzales, 412 F.3d 391, 394 (2d Cir.2005), overruled in part on other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 305 (2d cir.2007). While" }, { "docid": "10728835", "title": "", "text": "I. & N. Dec. 520, 527 (AG 2008); see also 8 C.F.R. § 1208.13(b)(1) (aliens who fall into this category are automatically entitled to the presumption of a well-founded fear of future persecution). Overruling BIA precedent, Matter of J-S held that an asylum-seeker whose spouse has suffered a forced abortion or sterilization is not per se eligible for asylum. Rather, the applicant must show that he or she personally suffered or will suffer persecution for resisting a coercive population-control program. Matter of J-S-, 24 I. & N. Dec. at 542; accord Lin-Zheng v. Attorney General, 557 F.3d 147 (3d Cir.2009); Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 314 (2d Cir.2007) (en banc). Accordingly, under Matter of J-S-, evidence that the applicant’s spouse was forced to abort a pregnancy or undergo involuntary sterilization is relevant to the applicant’s claim but does not alone establish eligibility; the applicant must also present evidence of his or her own past persecution or reasonable fear of future persecution. See Matter of J-S-, 24 I. & N. Dec. at 534-35 (“Some spouses may not have ‘resisted,’ and in fact may have affirmatively supported, the forced abortion or sterilization procedure that was performed on the spouse who remains in China.... [Applicant must present proof, of which their spouse’s treatment may be a part, of persecution for refusing to undergo forced abortion or sterilization procedures or for engaging in ‘other resistance’ to a coercive population control program, or of persecution on account of another ground for asylum enumerated in the Act.”). The Attorney General’s interpretation of § 1101(a)(42)(B) is entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and the rationale of Matter of J-S applies with equal force to the claim of an asylum-seeker like Chen whose parent has been forced to have an abortion or undergo sterilization. See Chen v. U.S. Dep’t of Justice, 417 F.3d 303, 305 (2d Cir.2005) (per curiam) (“[C]hildren are not per se as eligible for relief ... as those directly victimized themselves.”); Zhang" }, { "docid": "22735600", "title": "", "text": "Judge CALABRESI concurs in a separate opinion. DENNIS JACOBS, Chief Judge: Xiao Xing Ni, a native and citizen of China, seeks review of a December 15, 2003 order of the Board of Immigration Appeals (“BIA”) affirming the July 18, 2002 decision of an immigration judge (“IJ”). In re Xiao Xing Ni, No. [ AXX XXX XXX ] (B.I.A. Dec. 15, 2003), aff'g [ AXX XXX XXX ] (Immig. Ct. N.Y. City July 18, 2002). The IJ determined that Ni’s testimony was not credible, and denied her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). For the reasons that follow, we conclude that the IJ’s decision was supported by substantial evidence. More analysis is required, however, because: [i] Ni has given birth to one child; [ii] certain documents (mentioned in Jin Xiu Chen v. U.S. Department of Justice, 468 F.3d 109 (2d Cir.2006)) might—if they are authentic—indicate that the birth of one child could result in forced sterilization for a person who is returned to Fujian Province; and [iii] our opinion in Tian Ming Lin v. U.S. Depart ment of Justice, 473 F.3d 48, 52 (2d Cir.2007) (per curiam), suggests in dicta that, although by statute we “may not order the taking of additional evidence,” 8 U.S.C. § 1252(a)(1), we may have “inherent power” to do so in the circumstances presented here. We need not decide whether (despite Congress’s proscription) there may be circumstances in which we retain an inherent power to remand to the BIA for the consideration of additional evidence; we hold more narrowly that regardless of whether such residual inherent power exists, we should not exercise it if: [i] the basis for the remand is an instruction to consider documentary evidence that was not in the record before the BIA; and [ii] the agency regulations set forth procedures to reopen a case before the BIA for the taking of additional evidence. I Ni arrived in the United States in April 2001 and applied for asylum, withholding of removal, and CAT relief based on her claim of persecution under China’s family-planning policy. Her" }, { "docid": "20206593", "title": "", "text": "Huang’s appeal. The BIA found that “insertion of an IUD does not rise to the level of harm necessary to constitute persecution, absent some aggravating circumstance, which is not present in this case. Moreover, the respondent has not shown that the insertion of an IUD was or would be on account of a protected ground.” In re Xia Fan Huang, No. [ AXXX XXX XXX ] (B.I.A. Oct. 28, 2008) (citing Matter of M-F-W & L-G, 24 I. & N. Dec. 633 (BIA 2008)). Huang timely petitioned this Court for review of the BIA’s decision. DISCUSSION We have jurisdiction to review final orders of removal. See 8 U.S.C. § 1252(d). When the BIA does not adopt the decision of the IJ to any extent, we review only the decision of the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). Here, following Huang’s petition for review of the BIA’s decision denying relief, her case was remanded for the limited purpose of allowing the BIA to reconsider its decision in light of this Court’s holding in Ying Zheng v. Gonzales, 497 F.3d 201 (2d Cir.2007). On remand, the BIA issued a brief opinion addressing only the issue presented in Ying Zheng, i.e., whether the insertion of an IUD constitutes persecution, and leaving intact the remainder of its conclusions in its original decision. Therefore, we review the BIA’s original opinion as modified by its subsequent decision, which constitutes the agency’s final order of removal. See 8 U.S.C. § 1252(d). We review the agency’s factual findings under the substantial evidence standard. See id. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). We review de novo questions of law and the application of law to undisputed fact. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008). The Attorney General may grant asylum to an alien if he determines that the alien is a “refugee.” 8 U.S.C. § 1158(b)(1)(A); INS v. Cardoza-Fonseca, 480 U.S. 421, 428 n. 5, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). Section 101(a)(42) of the Immigration and Nationality Act defines a" }, { "docid": "22280350", "title": "", "text": "PER CURIAM. Petitioner Gui Ci Pan, a native and citizen of the People’s Republic of China, seeks review of a September 13, 2004 order of the BIA affirming the July 23, 2003 decision of Immigration Judge Gabriel C. Videla (“the IJ”) denying petitioner’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In his asylum application, supporting statement, and testimony before the IJ, Pan claimed that he had been persecuted for violating the Chinese family planning policy and that he faces a well-founded fear of future persecution if he is returned to China. The IJ denied Pan’s claim on the grounds that (1) Pan had failed to “credibly establish[ ]” that he and his girlfriend had undergone either a traditional wedding ceremony or a legal marriage in China; (2) because Pan was not married to his girlfriend, he “has no legal status to argue that there would be any consequences to him” under the Chinese family planning policy; and (3) Pan had failed to present “any evidence that he would be imprisoned,” fined, or beaten “simply because he got his girlfriend pregnant while they were not married ... or that either of them would be sterilized.” In re Gui Ci Pan, File No. [ A XX XXX XXX ] (New York, N.Y. July 23, 2003) (“IJ Decision”), at 7-8. We hold that, although the IJ’s factual findings regarding Pan’s marital status are supported by substantial evidence, we are required under Shi Liang Lin v. U.S. Dep’t of Justice, 416 F.3d 184 (2d Cir.2005), to remand to the BIA so that the agency may determine in the first instance whether Pan’s status as a boyfriend and father would allow him, under the circumstances presented, to qualify as a refugee under 8 U.S.C. § 1101(a)(42) and the BIA’s decision in In re C-Y-Z-, 21 I. & N. Dec. 915 (BIA 1997) (en banc). We remand also for the agency to reach a definitive general credibility finding regarding Pan’s testimony and supporting statements and to determine whether Pan has established a credible claim of past persecution based on" }, { "docid": "23115656", "title": "", "text": "B.D. PARKER, JR., Circuit Judge. Petitioner Mahamed Ayenul Islam, a native and citizen of Bangladesh, seeks review of a 34 February 14, 2005, order of the Board of Immigration Appeals (“BIA”) affirming the May 18, 1998, decision of Immigration Judge (“IJ”) Jeffrey S. Chase, which denied Islam’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”) on the basis that Islam’s testimony and documents lacked credibility. See In re Mahamed Ayenul Islam, No. [ A XX XXX XXX ] (B.I.A. Feb. 14, 2005), aff'g No. [ A XX XXX XXX ] (Immig. Ct. N.Y. City May 18, 1998). Where, as here, the BIA adopts and affirms the decision of the IJ, and supplements the IJ’s decision, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the factual findings of the BIA and IJ for substantial evidence. See 8 U.S.C. § 1252(b)(4)(B); Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004). We review de novo the IJ’s determination of mixed questions of law and fact, as well as the IJ’s application of law to facts. See Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003). I. The Asylum Hearing During immigration proceedings, an IJ has the authority to “administer oaths, receive evidence, and interrogate, examine, and cross-examine the alien and any witnesses.” 8 U.S.C. § 1229a(b)(l). Unlike an Article III judge, an IJ is not merely the fact finder and adjudicator, but also has an obligation to establish and develop the record. See Qun Yang v. McElroy, 277 F.3d 158, 162 (2d Cir.2002). At the same time, as a judicial officer, an immigration judge has a responsibility to function as a neutral, impartial arbiter and must be careful to refrain from assuming the role of advocate for either party. See Qun Wang v. Attorney Gen. of the U.S., 423 F.3d 260, 261 (3d Cir.2005). During the course of developing a sound and useful record, an IJ must, when appropriate, question an applicant in order, for example, to probe" }, { "docid": "22396062", "title": "", "text": "be non-credible, we hold that petitioner is ineligible for withholding of removal to the extent that his claim of persecution is based on the asserted forced sterilization of his alleged spouse. See Gui Yin Liu, 508 F.3d at 722-23. In a similar case, our Court has recently held that a withholding of removal claim based solely on the forced sterilization of petitioner’s wife is “doomed.” Gui Yin Liu, 508 F.3d at 722-23; cf. Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 308 (2d Cir.2007) (en banc) (“[Ajpplicants can became candidates for asylum relief only based on persecution that they themselves have suffered or must suffer.”). The text of 8 U.S.C. § 1231(b)(3), the provision governing withholding of removal, does not countenance a claim of “derivative persecution.” Like a claim for asylum, withholding of removal requires a showing of direct personal persecution. A petitioner who has not “personally experienced persecution ... on a protected ground” is ineligible to obtain withholding of removal relief. Id. at 306. Therefore, petitioner cannot base his claim for withholding of removal on his wife’s alleged forcible abortion. It is not clear whether petitioner also bases a claim for relief on the alleged sterilization of his cousin. Such a claim would meet with the same problems as one derived from a spouse’s persecution and is, for the same reasons, foreclosed. CONCLUSION For these reasons, the petition for review of the denial of asylum is Dismissed for lack of jurisdiction and the petition for review of the withholding of removal claim is Denied. . The IJ also denied Sun’s application for relief under the Convention Against Torture (“CAT”). Sun’s appeal does not, however, raise any arguments concerning this claim. Accordingly, we consider only his arguments regarding his claims for asylum and withholding of removal. See, e.g., Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1 (2d Cir.2005) (explaining that issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal). . We also note that our recent decision in Zheng Jian Chen v. BIA, 461 F.3d 153" }, { "docid": "22305556", "title": "", "text": "GERARD E. LYNCH, Circuit Judge: In September 2005, Milton Ronaldo Rodas Castro (“Rodas”), a native and citizen of Guatemala and a former police officer there, applied for asylum and withholding of removal under the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1158, 1231(b)(3), and for relief under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”), Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85; see 8 C.F.R. §§ 1208.16-18 (implementing the CAT), alleging retaliation and threats on his life by the Guatemalan police following his reports of official corruption to an international human rights organization. Rodas’s wife, Maria Luis Carranza-Fuentes (“Carranza”), also a native and citizen of Guatemala, independently applied for asylum, withholding of removal and relief under the CAT based on the same factual predicate, and their cases were consolidated in the Immigration Court. Carranza is also listed as a derivative applicant on Rodas’s application. On September 10, 2008 the Board of Immigration Appeals (“BIA”), affirmed a January 8, 2007 decision of Immigration Judge (“IJ”) Vivienne E. Gordon-Uruakpa, granting Rodas and Carranza relief under the CAT, but denying their requests for asylum and withholding of removal under the INA. In re Caranza & Rodas, Nos. [ AXXX XXX XXX ] & [ AXXX XXX XXX ] (B.I.A. Sept. 10, 2008), aff'g Nos. [ AXXX XXX XXX ] & [ AXXX XXX XXX ] (Immig. Ct. N.Y. City Jan. 8, 2007). At issue in this appeal is the portion of the BIA’s order holding petitioners ineligible for asylum upon a finding that Rodas failed to establish a sufficient nexus between a protected ground and the harm he encountered and will encounter if removed to Guatemala. We find that the agency erred in concluding that the danger Rodas encountered lacked any political dimension, because the agency failed to properly consider the relevant context in which Rodas’s claim arises and, in so doing, misconstrued the concept of political opposition. Accordingly, we grant the petition and remand the case for further consideration. BACKGROUND I. Rodas’s Claim of Persecution In 1996, with the" }, { "docid": "22561166", "title": "", "text": "PER CURIAM: Petitioner Yan Juan Chen (“Chen”), a native and citizen of the People’s Republic of China, seeks review of a May 20, 2010, order of the Board of Immigration Appeals (“BIA”) affirming the September 26, 2007, decision of an Immigration Judge (“IJ”), denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Yan Juan Chen, No. [ AXXX XXX XXX ] (B.I.A. May 20, 2010), aff’g No. [ AXXX XXX XXX ] (Immig. Ct. N.Y. City Sept. 26, 2007). The principal issue before us is whether substantial evidence supports the IJ’s determination that Chen failed to carry her burden of proof. Underlying that is the issue of whether the IJ reasonably concluded that Chen failed to provide reasonably available corroborating evidence to support her claim. Having reviewed the record and the arguments on appeal, we conclude that substantial evidence supports the IJ’s determinations, and we therefore deny Chen’s petition for review. BACKGROUND Chen’s Claims In her application for asylum, withholding of removal, and relief under the CAT, Chen alleged that she was persecuted for violating China’s family-planning policy. Because her husband belongs to an urban household, she asserted, the couple were permitted to have only one child, regardless of its gender. Chen claimed that in November 2004, a month after the birth of her first child, a daughter, she was ordered to wear an intrauterine device (“IUD”). When she refused, “family planning officials” went to her home and took her to have an IUD forcibly inserted. Chen alleged that she later went to a private doctor to have the IUD removed because she wanted more children and, shortly thereafter, she became pregnant. She also asserted that in June 2005, after she had missed her regular family-planning checkup, “family planning cadres” came to her home and forced her to go to a local hospital where, once her pregnancy was confirmed, she was forced to undergo an abortion. Following the abortion, Chen alleged, she had another IUD forcibly inserted and, in May 2006, she returned to the same private doctor she had seen" }, { "docid": "22667435", "title": "", "text": "government was looking for her, noting that it was “conceivable that someone could leave a country despite the fact that other government officials are looking for the person.” Turning to her application for withholding of removal and relief under the Convention Against Torture, the IJ concluded that Lin had failed to establish her eligibility for either form of relief. Lin filed a timely appeal of the IJ’s decision to the Board of Immigration Appeals (“BIA”). In its October 2007 decision, the BIA affirmed the IJ’s adverse credibility determination and dismissed Lin’s appeal. In re Xiu Xia Lin, No. [ A XX XXX XXX ] (B.I.A. Oct. 31, 2007), aff'g No. [ A XX XXX XXX ] (Immig. Ct. N.Y. City Dec. 16, 2005). She then sought review in our Court. In her petition before our Court, Lin argues that the IJ’s adverse credibility determination was flawed because: (1) the “discrepancies [and] omissions” relied upon by the IJ are “minimal”; (2) the IJ improperly relied on omissions in her documentary submissions as compared to her testimony; and (3) the IJ relied upon his own speculation in concluding that it was implausible that the government would have given her a birth certificate. Because Lin filed her asylum application after May 11, 2005, her claim is governed by the amendments made to the Immigration and Nationality Act (“INA”) by the passage of the REAL ID Act, Pub.L. No. 109-13, 119 Stat. 231 (2005). See Title I, § 101(a)(3) of the Act, 119 Stat. 231, 303 (amending 8 U.S.C. § 1158); see also Liang Chen v. U.S. Att’y Gen., 454 F.3d 103, 107 n. 2 (2d Cir.2006). B. The Real ID Act Prior to the passage of the REAL ID Act, courts of appeals had developed different rules governing the proper basis for an IJ’s adverse credibility determination. The law of our circuit provided that when an IJ based an adverse credibility determination on inconsistencies in an asylum applicant’s testimony or between the testimony and the documents the applicant submitted, the IJ was required (1) to demonstrate a nexus between inconsistencies in an asylum" }, { "docid": "22659236", "title": "", "text": "establish past persecution under this amendment to section 101(a)(42) of the [INA].”). This appeal considers whether the BIA’s interpretation of the statute was correct. We conclude it was not. Petitioners Shi Liang Lin, Zhen Hua Dong, and Xian Zou are citizens of the People’s Republic of China and unmarried partners of individuals allegedly victimized by China’s coercive family planning policies. Each seeks review of an order of the BIA summarily affirming the denial of an application for asylum based, in part, on the BIA’s holding in C-Y-Z-. We remanded these petitions to the BIA to afford it the opportunity to explain its rationale in C-Y-Z- for reading § 601(a) to say that the spouses of those directly victimized by coercive family planning policies are per se eligible for asylum as if they were directly victimized themselves and also to clarify the status of boyfriends and fiancés under that statute. See Lin v. U.S. Dep’t of Justice, 416 F.3d 184, 187 (2d Cir.2005). We retained jurisdiction. Id. On remand, the BIA reaffirmed its holding in C-Y-Z- that spouses are entitled to automatic eligibility under § 601(a) but limited this per se eligibility to legally married applicants. S-L-L-, 24 I. & N. Dec. 1. Eschewing a text-based analysis, the BIA elected to interpret the forced abortion and sterilization clause of the section “in light of the overall purpose of the amendment” to include both parties to a marriage. Id. at 8. The Board reaffirmed the dismissal of the appeals of petitioners Lin, id., and Dong, In re Zhen Hua Dong, No. [ AXX XXX XXX ] (B.I.A. Nov. 27, 2006), and remanded Zou’s petition for a determination of whether he qualified for asylum based on the “other resistance to a coercive population control program” clause in § 601(a), In re Xian Zou, No. [ AXX XXX XXX ] (B.I.A. Nov. 21, 2006). Following the BIA’s decision, we ordered rehearing en banc to consider two issues: First, whether § 601(a)’s provisions are ambiguous, so that the BIA’s construction of them warrants Chevron deference; and second, whether the BIA reasonably construed § 601(a) to" }, { "docid": "22710196", "title": "", "text": "a “permanent and continuing” act of persecution such that the presumption of well founded fear of future persecution “cannot be rebutted.” Id. at 801. The BIA in this case explicitly disagreed with Mohammed. In so doing, it distinguished In re Y-T-L-, 23 I. & N. Dec. 601 (B.I.A. 2003) (en banc) (“Y-T-L-”), in which the BIA held that forced sterilization amounted to continuing persecution. The BIA in the present case reasoned that “persons who suffered [forced sterilization] have been singled out by Congress as having a basis for asylum ... on the strength of the past harm by itself,” and because “Congress has not seen fit to recognize FGM ... in similar fashion,” the BIA declined to define the genital mutilation that Salima-tou suffered as continuing persecution. Finally, the BIA noted that while humanitarian asylum might be warranted in some genital mutilation cases “notwithstanding the low likelihood of future persecution,” such discretionary relief is not available in withholding of removal cases. The BIA further agreed with the IJ’s denial of the CAT claim because Salimatou “failed to present evidence that she more likely than not would be tortured if returned to Guinea.” Accordingly, the BIA dismissed Sali-matou’s appeal as to the withholding of removal and CAT claims based on genital mutilation. III. Petitioner Mariama Diallo Petitioner Mariama Diallo seeks review of an April 12, 2007 order of the BIA affirming the July 1, 2005 decision of IJ Barbara A. Nelson denying her applications for asylum, withholding of removal, relief under the CAT, and cancellation of removal. In re Mariama Diallo, Amadou Sow, Nos. [ AXX XXX XXX ]; [ AXX XXX XXX ] (B.I.A. Apr. 12, 2007), aff'g Nos. [ AXX XXX XXX ]; [ AXX XXX XXX ] (Immig. Ct. N.Y. City July 1, 2005). Mariama, also a native and citizen of Guinea and a member of the Fulani ethnic group, was admitted into the United States in May 1992 on a nonimmi-grant visa, which she overstayed. In September 2003, Mariama filed an application for asylum, withholding of removal, and CAT relief. In February 2005, Mariama amended her application" }, { "docid": "22958159", "title": "", "text": "persecution, thereby entitling Liu to a presumption of a well-founded fear of future persecution. In the absence of evidence rebutting Liu’s presumed well-founded fear of future persecution, the IJ granted Liu’s application for asylum. The Department of Homeland Security appealed the IJ’s asylum decision to the Board of Immigration Appeals. The BIA accepted the IJ’s credibility findings, but concluded that the IJ erred in holding that the mistreatment suffered by Liu rose to the level of persecution. Accordingly, the BIA vacated and reversed the IJ’s decision granting Liu’s asylum application. Liu now appeals. Under the circumstances of this case, we review only the BIA’s decision. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). The applicable standards of review are well-established. See 8 U.S.C. § 1252(b)(4)(B); Alibasic v. Mukasey, 547 F.3d 78, 84-85 (2d Cir.2008). We assess the agency’s factual findings under the substantial evidence standard, but review the BIA’s application of legal principles to undisputed facts de novo. Aliyev v. Mukasey, 549 F.3d 111, 115 (2d Cir.2008). The BIA did not err in concluding that Liu failed to demonstrate his eligibility for asylum on account of his alleged resistance to the family planning policy. See Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 313 (2d Cir.2007) (in banc). Liu argues that the BIA misapplied Beskovic v. Gonzales, ante, by failing to analyze whether the beating occurred in the context of his arrest, and that the harm he suffered on account of his resistance to the family planning policy constituted persecution because it occurred “in the context” of his arrest and detention. Although the BIA emphasized that Liu’s mistreatment did not occur during his two-day detention without explicitly analyzing a potential connection to the arrest, we think that is implicit in the overall ruling. Thus, we find no error in the BIA’s conclusion that Liu failed to establish persecution because substantial evidence supports the BIA’s finding that, prior to his arrest and detention by local police, he suffered only minor bruising from an altercation with family planning officials, which required no formal medical attention and" }, { "docid": "23309377", "title": "", "text": "PER CURIAM: Petitioner Jin Xiu Chen, a citizen of the People’s Republic of China, seeks review of a January 20, 2006 order of the Board of Immigration Appeals (“BIA”) affirming the September 21, 2004 decision of Immigration Judge (“IJ”) Jeffrey S. Chase denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Jin Xiu Chen, No. [ AXX XXX XXX ] (B.I.A. Jan. 20, 2006), aff'g No. [ AXX XXX XXX ] (Immig. Ct. N.Y. City Sept. 21, 2004). In its order, the BIA also denied Chen’s motion to remand. In re Jin Xiu Chen, No. [ AXX XXX XXX ] (B.I.A. Jan. 20, 2006). Chen’s sole claim for relief is that she fears forced sterilization if she is returned to her home city of Changle City, Fujian Province, because she has three U.S.-born children. For the reasons to be discussed, because the documents identified in Shou Yung Guo v. Gonzales, 463 F.3d 109 (2d Cir.2006), and several documents submitted by Chen that the BIA did not address, suggest the existence an official policy of forced sterilization in Changle City, we remand this case to the BIA to determine the validity, scope, and import of these documents and to reconsider Chen’s claim of future persecution in light of them. In an accompanying summary order, we address the other arguments presented in Chen’s petition for review. The IJ found that Chen had failed to present evidence sufficient to establish that she would face forced sterilization if returned to her home city in China. Both this Court and the BIA have concluded that the evidence previously available to support Chinese asylum applicants’ claims of forced sterilization, including the oft-submitted “Aird Affidavit” prepared by retired demographer and immigration expert Dr. John S. Aird, was inadequate to establish the existence of an official policy of forced sterilization on the part of any Chinese province or locality, and thus insufficient to show that the applicants were likely to face forced sterilization if returned to China. See Wei Guang Wang v. BIA 437 F.3d 270, 274-76 (2d Cir.2006)" } ]

[ { "docid": "1688512", "title": "", "text": "rise to the level of a concealment. These facts, as well as representations made to Ruth Alice Bertholf to induce her to sign the addendum, raise a genuine issue of material fact of fraud. Furthermore, if Gwaltney and AgriStor’s agent were merely mistaken about such representations (i.e., did not know the effect of the lease), then there was a mutual mistake. Thus, parol evidence would be allowed to the extent necessary to establish such mistake. In addition, it has been recognized that even a unilateral mistake will allow reformation of the contract where the other party knew of the mistake and hardship amounting to injustice would be inflicted by holding the mistaken party to the agreement. In other words, it would be harsh and unreasonable to enforce the agreement. Squires v. Woodbury, 5 Kan.App.2d 596, 599, 621 P.2d 443 (1980). Since the facts indicate that agents of AgriStor knew or should have known that the Bert-holfs’ understanding of the contract was different than the explicit written lease agreement, summary judgment cannot be granted on this issue. Parol evidence will also be allowed to establish that the Bertholfs signed the lease as accommodation parties. The Bert-holfs have properly supported their allegations that they received no direct benefit from this lease arrangement and that they are merely accommodation parties. Furthermore, the Bertholfs have provided factual support for a finding that AgriStor and Don Cress, without the Bertholfs’ prior consent, entered into an agreement for the final purchase of some of the equipment subject to the lease agreement on which the Bertholfs were accommodation parties. Since the general rule is that a gratuitous or accommodation guarantor is discharged by any unauthorized change in his obligation, Kutilek v. Union National Bank of Wichita, 213 Kan. 407 syl. 6, 516 P.2d 979 (1973), summary judgment is not proper on this issue. Furthermore, the Bertholfs have presented sufficient factual support to preclude summary judgment on the issue of unconscionability. See John Deere Leasing Co. v. Blubaugh, 636 F.Supp. 1569 (D.Kan.1986). For instance, as has already been stated, the facts indicate that Lee Bertholf did not read" } ]

[ { "docid": "6512203", "title": "", "text": "its burden, the non-moving party must bring forth specific facts showing there is a genuine issue for trial as to the essential elements of the non-moving party’s claim. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986); Nannie, 3 F.3d at 1414. The non-moving party may not rely on mere allegations in the pleadings to overcome the summary judgment motion. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. DISCUSSION This court applies the substantive law of the forum state when sitting in diversity. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021-22, 85 L.Ed. 1477 (1941); Equifax Services, Inc. v. Hits, 905 F.2d 1355 (10th Cir.1990). Therefore we apply Kansas law to the facts of this case. The plaintiffs argue that we should look to defendants’ oral promises in determining the terms of the Licensing Agreement which, they contend, is ambiguous. Plaintiffs consider the Licensing Agreement in its entirety as expressing a general purpose and obligation to produce and manufacture Skyfox which is internally contradicted by Article XIII’s disavowal of any obligation to produce and sell. Ambiguity exists where contract language lends itself to more than one reasonable interpretation. Albers v. Nelson, 248 Kan. 575, 578, 809 P.2d 1194, 1197 (1991). Whether a contract’s provisions are ambiguous is a matter of law to be determined by the court. Mobile Acres, Inc. v. Kurata, 211 Kan. 833, 839, 508 P.2d 889, 895 (1973). We agree with the district court’s conclusion that the Licensing Agreement is not ambiguous as a matter of law. In reading through the articles we do not find any which give rise to more than one interpretation. The unambiguous language of the contract controls the rights and responsibilities of the parties in this case. Bank IV Salina, N.A v. Aetna Cas. & Sur. Co., 810 F.Supp. 1196, 1204 (D.Kan.1992). A. Fraud in the Inducement, Fraudulent Misrepresentation Plaintiffs urge this court to look beyond the contract at the verbal assurances defen dants gave during negotiations, that BMAC was" }, { "docid": "3916287", "title": "", "text": "to specifically identify any items that they contend should be returned to them by virtue of the agreements entered into by the parties. We find that defendant is also entitled to summary judgment on this claim. IT IS THEREFORE ORDERED that defendant’s motion for summary judgment (Doc. #84) be hereby granted. Judgment shall be entered for the defendant and against the plaintiffs on all claims. IT IS SO ORDERED. . This argument appears to be related to the plaintiffs' assertion that the presence of fraud allows the use of parol evidence to interpret the terms of the License Agreement. However, parol evidence in this context is ordinarily used to demonstrate the nonexistence of a binding contract. See Agristor Leasing v. Bertholf, 753 F.Supp. 881, 894-95 (D.Kan.1990). A contract which is fraudulently induced is usually declared void. Albers v. Nelson, 248 Kan. 575, 809 P.2d 1194, 1198 (1991). See also Restatement (Second) of Contracts § 164(1). Reformation or restitution may also be a remedy in some circumstances. See Restatement (Second) of Contracts § 165; Calamari and Perillo, Contracts § 9-23 (3d ed. 1987). Here, plaintiffs seek damages based upon the terms of the License Agreement. They do not ask that the contract be rendered void or that it be reformed. Nevertheless, the court shall consider plaintiffs' claim of fraud in the inducement. . The court readily notes that the evidence in the record in support of some of the allegations is non-existent. For example, the record fails to provide any significant support for the plaintiffs' position that Boeing promised to spend $60 million on the Skyfox project. The following excerpt from the deposition of Loyd Pearcy, the plaintiffs' designated negotiator in this transaction, reveals the weakness of plaintiffs' claim: Q ... Now, was there ever any promise made in any of your meetings by Boeing, any flat promises that Boeing would invest a specific amount or amounts of money in the project? A Not any flat promises, but, you know, I think there was implications and that occasion was one, that the way I interpreted that this whole motive for making" }, { "docid": "6512204", "title": "", "text": "and obligation to produce and manufacture Skyfox which is internally contradicted by Article XIII’s disavowal of any obligation to produce and sell. Ambiguity exists where contract language lends itself to more than one reasonable interpretation. Albers v. Nelson, 248 Kan. 575, 578, 809 P.2d 1194, 1197 (1991). Whether a contract’s provisions are ambiguous is a matter of law to be determined by the court. Mobile Acres, Inc. v. Kurata, 211 Kan. 833, 839, 508 P.2d 889, 895 (1973). We agree with the district court’s conclusion that the Licensing Agreement is not ambiguous as a matter of law. In reading through the articles we do not find any which give rise to more than one interpretation. The unambiguous language of the contract controls the rights and responsibilities of the parties in this case. Bank IV Salina, N.A v. Aetna Cas. & Sur. Co., 810 F.Supp. 1196, 1204 (D.Kan.1992). A. Fraud in the Inducement, Fraudulent Misrepresentation Plaintiffs urge this court to look beyond the contract at the verbal assurances defen dants gave during negotiations, that BMAC was committed to Skyfox and would support the project financially, to determine that defendants fraudulently induced plaintiffs to sign the Licensing Agreement. Plaintiffs allege defendants’ verbal assurances misrepresented the truth in that defendants never intended to invest money in or develop the project. Under Kansas law, parties to a contract may define the terms of their agreement and, absent fraud, mistake or duress, the contract is enforceable. Augusta Medical Complex, Inc. v. Blue Cross of Kansas, Inc., 227 Kan. 469, 474-76, 608 P.2d 890, 895 (1980). Where the parties have negotiated and entered into a written contract which addresses the issues negotiated between them, the written contract determines their rights. Albers, 248 Kan. at 578, 809 P.2d 1194; Edwards v. Phillips Petroleum Co., 187 Kan. 656, 659, 360 P.2d 23, 26 (1961). Parol evidence is inadmissible to introduce statements or representations made during the negotiations that conflict with the written agreement, absent fraudulent misrepresentation. Edwards, 187 Kan. at 659, 360 P.2d 23. To be actionable, a misrepresentation must relate to a pre-existing or present fact; statements" }, { "docid": "18421614", "title": "", "text": "a genuine issue for trial.” Id.; see Barnett v. Howaldt, 757 F.2d 23, 26 (2d Cir.1985). Summary judgment will not be denied on the basis of mere conclusory allegations, made without factual support. See Project Release v. Prevost, 722 F.2d 960, 968 (2d Cir.1983). After careful consideration of the record, and having heard oral argument on this matter, the Court concludes that the defendant’s motion for summary judgment must be granted. I. PHIBRO AS DEFENDANT A. Parties to the Contract The May 5th letter, upon which the plaintiff’s claim is based, clearly and unambiguously sets forth Kashfi and Derby as the contracting parties. The contract gives no indication that Phibro was a party to the agreement or that Phibro intended to be a party. Nor is there any indication that either Kashfi or Beresiner, who agreed on the terms of the contract, intended to bind Phibro under the contract. Nevertheless, the plaintiff argues that the letter agreement was not between Kashfi and Derby, but rather was between Kashfi and Phibro. Even though the agreement was written on Derby’s stationery and was signed by Beresiner under Derby’s name, the plaintiff claims that Phibro was the contracting party. It is not enough, according to the plaintiff, to look at the contract itself, but rather all the circumstances surrounding it must be considered. The plaintiff argues that Phibro is a party to the contract because Beresiner was employed by Phibro and orally represented that he was signing the letter agreement on Phibro’s behalf. The Court rejects this argument based on the plain language of the letter agreement. The Plaintiff contends that initially he entered into an oral agreement with Beresiner, and that the oral agreement was subsequently reduced to writing in the letter agreement of May 5, 1976. The letter agreement contains the terms agreed upon, and it appears to be a completely integrated agreement. See Restatement (Second) of Contracts § 209 (1981) (A letter confirming an oral agreement is a completely integrated agreement); J. Calamari & J. Perillo, Contracts § 3-2, at 102 (2d ed.1977) (A letter of confirmation generally acts as" }, { "docid": "20382470", "title": "", "text": "to Memorial Day. Id. The defects were not fixed until the first week in August. Id. The plaintiff alleged that it was fraudulently induced to enter the lease agreement based on the defendant’s misrepresentations about the condition of the property. Id. at 376, 164 A.2d 607. The New Jersey Appellate Division held that the plaintiff could proceed with his fraudulent inducement claim, despite a provision in the lease agreement which averred that “no representation as to the physical condition of the property ... have been made by the Lessor.” Id. at 377, 164 A.2d 607. The court found that “a party to an agreement cannot, simply by means of a provision in the written instrument, create an absolute defense or prevent the introduction of parol evidence in an action based on fraud in the inducement to contract.” Id. at 377-78, 164 A.2d 607. However, the Appellate Division expressly held “[t]he action at bar, however, is not grounded in contract, but in fraud.” Id. at 382, 164 A.2d 607. Therefore, the plaintiff was permitted to allege his fraudulent inducement claim but had no viable claim for breach of contract. This is clearly distinguishable from the instant case. Here, MTG’s fraudulent inducement claim is in essence a breach of contract claim. MTG’s two purported misrepresentations are addressed squarely within the language of the License Agreement and are intrinsic to RNC’s performance under the contract and have the same measure of damages as MTG’s breach of contract claim. Therefore, the New Jersey economic loss doctrine applies and MTG’s reliance on Ocean Cape is unpersuasive. Therefore, summary judgment will be granted dismissing MTG’s fraudulent inducement claims against RNC, Philip Franklin and Eric Campos because these claims are barred under the New Jersey economic loss doctrine. 2. Integration Clause and Parol Evidence In addition, the License Agreement’s integration clause bars MTG’s fraudulent inducement claim. The License Agreement provides: This Agreement constitutes the entire agreement between the Parties hereto with respect to subject matter hereof and thereof. This Agreement supersedes all prior or simultaneous represen tations, discussions, negotiations, letters, proposals, agreements and understandings between the Parties" }, { "docid": "6159835", "title": "", "text": "breach of contract, rather than fraudulent inducement or some other tort-based claim. ITT Hartford argues that, although parol evidence may be used to support a claim for fraudulent inducement, it may not be similarly used to support a claim for breach of contract. (Defs.’ Reply Mem. at 4.) Florida Pottery Stores and Gay, however, compel a different conclusion. Resolution of the Defendants’ Motion for Partial Summary Judgment on the Plaintiffs’ breach of contract claim turns on two questions: (1) whether parol evidence is admissible under any circumstances to prove a breach of contract and (2) if so, whether the circumstances of the instant case justify application of one of the exceptions to the parol evidence rule, thereby allowing the introduction of extrinsic evidence of the oral statements of the Defendants’ sales agents. With regard to the first question, the Court concludes that Florida Pottery Stores and Gay demonstrate parol evidence may be used to prove a claim for breach of contract. With regard to the second question, it is clear to the Court that evidence of oral representations by ITT Hartford’s sales agents to the Plaintiffs are admissible pursuant to the fraud exception to Florida’s parol evidence rule. The Plaintiffs have alleged that they executed the contracts by which they purchased the Defendants’ life insurance policies because — at least in part — of the contemporaneous oral agreements with the sales agents. As noted above, the only argument advanced by ITT Hartford in support of its Motion for Partial Summary Judgment on the Plaintiffs’ claims for breach of contract is that parol evidence is inadmissible to support such claims. For the reasons set forth above, the Court finds this argument unavailing. Accordingly, the Court will deny the Defendants’ Motion for Partial Summary Judgment. III. Plaintiffs’ Motion for Class Certification The Plaintiffs have moved to certify the class of ITT Hartford policyholders that have allegedly been harmed by the ITT Hartford sales practices described above. They argue that all of Rule 23’s requirements have been met and that a class action is the superior means of adjudicating the Plaintiffs’ claims against" }, { "docid": "14887922", "title": "", "text": "to writing and signed by Dealer and a representative of Amoco authorized to execute this Agreement.” (Doc. 164, Ex. 5, 1989 and 1991 DSAs, ¶ 23.) Similarly, the credit card contracts provide that they “shall not be modified except in writing, executed by both parties.” (Doe. 164, Ex. 4, Credit Card Contract, ¶ XIII.) Plaintiffs have presented no writing manifesting the alleged DFC/DBP offset agreement to support either their “subsequent agreement” or “modification” arguments. 5. Are the integration clauses and the contracts enforceable? Amoco has relied heavily on the integration clauses and parol evidence rule to establish the grounds for summary judgment on Count I. Integration clauses are generally held to be valid and effective, White & Summers, § 2-12, at 122, especially when two commercial parties are involved, Ray Martin Painting, Inc. v. Ameron, Inc., 638 F.Supp. 768, 774 (D.Kan.1986). Plaintiffs have nevertheless attacked the integration clauses and the contracts themselves on a couple of grounds. First, plaintiffs claim they never read the integration clauses before signing the contracts. (Doc. 163, pp. 8-9, 31.) In their affidavits, plaintiffs maintain that DSAs and other documents were routinely presented to them for their signatures without any explanation of the “fine print,” including the integration clauses. {See, e.g., Wayman’s Affidavit, ¶5.) This claim is contradicted by the evidence. In sworn depositions, a number of the plaintiffs testified that they read and/or had their lawyers read their original DSAs before signing them. (Conner’s Depo., p. 116; Botkin’s Depo., pp. 92-93; J. McKown’s Depo., pp. 47-48; Howell’s Depo., pp. 232-33.) Moreover, even if plaintiffs did not read or understand the integration clauses, “[i]t is a well-established rule of law that contracting parties have a duty to learn the contents of a written contract before signing it, and such duty includes reading the contract and obtaining an explanation of its terms.” Albers v. Nelson, 248 Kan. 575, 578-79, 809 P.2d 1194 (1991); see also Flight Concepts Ltd. Partnership v. Boeing Co., 38 F.3d 1152, 1157 (10th Cir.1994) (“It was Mr. O’Quinn’s duty to read and understand the provisions of the Licensing Agreement. A party cannot" }, { "docid": "14002723", "title": "", "text": "every appearance of being complete and final, they are required to incorporate in that form their entire agreement. If they fail to do so, unincorporated terms relating to the same subject matter are void.” Calamari & Per-illo, Contracts § 41, at 82 (1970); see 4 Williston on Contracts §§ 638-39 (3d ed. 1961). Under Arizona law, the initial question of whether the written documents were intended to comprise the fully-integrated, complete agreement of the parties can be treated as one of law for the court. See Higgins v. Arizona Savings & Loan Ass’n, 90 Ariz. 55, 61, 365 P.2d 476, 481 (1961); Shore Line Properties, Inc. v. Deer-O-Paints & Chemicals, Ltd., 24 Ariz.App. 331, 334-35, 538 P.2d 760, 763-64 (1975). The district court here properly found the October 28 and November 19 written documents complete and unambiguous, and therefore rejection of parol evidence to modify the express terms of these writings was justified. The court was not required to look beyond those writings in determining that the parties intended them to constitute the entire contract between the parties. See Hofmann Co. v. Meisner, 17 Ariz.App. 263, 265, 497 P.2d 83, 85 (1972), citing Richards Development Co. v. Sligh, supra. Summary judgment for defendants on the fifth claim therefore was appropriate. See Radobenko v. Automated Equipment Corp., 520 F.2d 540, 543-44 (9th Cir. 1975). Plaintiffs’ claim for reformation in their sixth claim can fare no better. They correctly note that the parol evidence rule is not totally applicable to actions for reformation, since parol evidence usually is necessary to establish the content of the parties’ true agreement. McNeil v. Attaway, 87 Ariz. 103, 110, 348 P.2d 301, 305 (1959). Plaintiffs overlook one important point, however. Under Arizona law, an action for reformation, which is nothing more than an equitable remedy, will lie only if ■mistake, fraud or inequitable conduct infected the underlying negotiations, causing the written document to deviate from the true intent of the parties. See City of Scottsdale v. Burke, 19 Ariz.App. 11, 504 P.2d 552 (1972). Our case simply does not fit within this mold. While questions of" }, { "docid": "3916261", "title": "", "text": "between the parties, the court shall grant summary judgment to the defendant based on plaintiffs’ claims of fraud by concealment or silence. The court shall also grant summary judgment to the defendant on plaintiffs’ claims of breach of fiduciary duty. We next turn to plaintiffs’ claims that they were fraudulently induced to enter into the License Agreement based upon the affirmative misrepresentations made by Boeing and its agents. Contracting parties have a duty to learn and know the contents of a written contract before signing it. Vanier v. Ponsoldt, 251 Kan. 88, 833 P.2d 949, 959 (1992). “Where contracting parties have carried out negotiations and have subsequently entered into an agreement in writing with respect to the subject matter covered by such negotiations, the written agreement constitutes the contract between them and determines their rights.” Albers, 809 P.2d at 1197. The fact that a party signs a contract and does not know its contents is not alone sufficient to permit that party to void it. Id. In addition, the fact that the signing of a contract may be hurried or rushed is not alone sufficient to permit a contracting party to void it. Id. at 1198. The facts here fail to demonstrate that the plaintiffs were induced to sign the License Agreement based upon the fraudulent representations of Boeing and its agents. Hill and O’Quinn are experienced and astute businessmen. Hill read the License Agreement, conferred with counsel, and signed it. O’Quinn also conferred with counsel prior to signing the agreement. He was told by his attorney, who was responsible for negotiating the License Agreement on his behalf, that this agreement was the best he was going to get from Boeing. We cannot say that these facts, even when viewed in the light most favorable to plaintiffs, suggest that plaintiffs could have justifiably relied upon any of the statements made by Boeing or its agents. In sum, we find insufficient evidence of fraudulent inducement by Boeing or its agents to avoid summary judgment. Finally, we shall consider the plaintiffs’ remaining allegations of fraud. The defendant contends that it is entitled" }, { "docid": "6512205", "title": "", "text": "committed to Skyfox and would support the project financially, to determine that defendants fraudulently induced plaintiffs to sign the Licensing Agreement. Plaintiffs allege defendants’ verbal assurances misrepresented the truth in that defendants never intended to invest money in or develop the project. Under Kansas law, parties to a contract may define the terms of their agreement and, absent fraud, mistake or duress, the contract is enforceable. Augusta Medical Complex, Inc. v. Blue Cross of Kansas, Inc., 227 Kan. 469, 474-76, 608 P.2d 890, 895 (1980). Where the parties have negotiated and entered into a written contract which addresses the issues negotiated between them, the written contract determines their rights. Albers, 248 Kan. at 578, 809 P.2d 1194; Edwards v. Phillips Petroleum Co., 187 Kan. 656, 659, 360 P.2d 23, 26 (1961). Parol evidence is inadmissible to introduce statements or representations made during the negotiations that conflict with the written agreement, absent fraudulent misrepresentation. Edwards, 187 Kan. at 659, 360 P.2d 23. To be actionable, a misrepresentation must relate to a pre-existing or present fact; statements or promises about future occurrences are not actionable. Id. An exception exists where evidence establishes that, at the time the promise as to future events was made, the promisor did not intend to perform the promised action. Id. at 660, 360 P.2d 23. Where the written contract directly contradicts the oral promises made during contract negotiations, the oral promise cannot be construed as fraudulent. Id.; Jack Richards Aircraft Sales, Inc. v. Vaughn, 203 Kan. 967, 973, 457 P.2d 691, 696 (1969). The Licensing Agreement released BMAC from any obligation to produce aircraft. The fact that the written contract conflicts directly with any oral promises BMAC employees made concurrently erases any effect of those oral promises from the Agreement. Those concurrent oral promises cannot, as a matter of law, establish fraudulent inducement or misrepresentation. Plaintiff Russell P. O’Quinn, the originator of the Skyfox concept, alleges he had no opportunity to read the Licensing Agreement before he signed it and he would not have signed had he known the Agreement included Article XIII. He argues defendants misrepresented" }, { "docid": "3916288", "title": "", "text": "Perillo, Contracts § 9-23 (3d ed. 1987). Here, plaintiffs seek damages based upon the terms of the License Agreement. They do not ask that the contract be rendered void or that it be reformed. Nevertheless, the court shall consider plaintiffs' claim of fraud in the inducement. . The court readily notes that the evidence in the record in support of some of the allegations is non-existent. For example, the record fails to provide any significant support for the plaintiffs' position that Boeing promised to spend $60 million on the Skyfox project. The following excerpt from the deposition of Loyd Pearcy, the plaintiffs' designated negotiator in this transaction, reveals the weakness of plaintiffs' claim: Q ... Now, was there ever any promise made in any of your meetings by Boeing, any flat promises that Boeing would invest a specific amount or amounts of money in the project? A Not any flat promises, but, you know, I think there was implications and that occasion was one, that the way I interpreted that this whole motive for making the chart was look how much we're going to go into the hole as sort of a litmus test of our commitment to this project and that's how I interpreted it at the time. Q Well, you said there were no flat promises. They were merely speaking that if the thing, if the Skyfox went into production it would take this much money, wasn't that it? A Yes. Q And there was no commitment at that point in time that they would put the Skyfox into production? A No. You know, I — no question there was no commitment and I wouldn't try to mislead anyone about that and they were very well represented legally and there's no question about that. I guess it's sort of beyond my area of a lawyer, as a lawyer, but again the context was if we can get Boeing to buy this project, if we can get over these hurdles of it being somebody else’s plane, et cetera, then we are committed to it and look how much money" }, { "docid": "3916262", "title": "", "text": "contract may be hurried or rushed is not alone sufficient to permit a contracting party to void it. Id. at 1198. The facts here fail to demonstrate that the plaintiffs were induced to sign the License Agreement based upon the fraudulent representations of Boeing and its agents. Hill and O’Quinn are experienced and astute businessmen. Hill read the License Agreement, conferred with counsel, and signed it. O’Quinn also conferred with counsel prior to signing the agreement. He was told by his attorney, who was responsible for negotiating the License Agreement on his behalf, that this agreement was the best he was going to get from Boeing. We cannot say that these facts, even when viewed in the light most favorable to plaintiffs, suggest that plaintiffs could have justifiably relied upon any of the statements made by Boeing or its agents. In sum, we find insufficient evidence of fraudulent inducement by Boeing or its agents to avoid summary judgment. Finally, we shall consider the plaintiffs’ remaining allegations of fraud. The defendant contends that it is entitled to summary judgment on these claims because (1) the alleged statements are not actionable; (2) there is no clear and convincing evidence that Boeing made any promise that it did not intend to fulfill; and (3) the License Agreement precludes any reliance upon the alleged oral statements. The court shall begin by considering the defendant’s argument that there is a lack of evidence concerning the defendant’s intention to perform the alleged oral promises. The defendant’s position is that all of the fraud allegations made by the plaintiffs involve promises or statements concerning future events. They suggest that these claims are not actionable because the plaintiffs have no evidence that Boeing did not intend to perform the promises when they were made. Plaintiffs contend that their fraud claims related to future income and profits are actionable. They rely upon Hawthom-Mellody, Inc. v. Driessen, 213 Kan. 791, 518 P.2d 446 (1974) and Fisher v. Mr. Harold’s Hair Lab, Inc., 215 Kan. 515, 527 P.2d 1026 (1974). Generally, fraudulent representations to constitute actionable fraud must relate to some" }, { "docid": "4753134", "title": "", "text": "representations that he had to make the expenditures in order to qualify for the franchise. Plaintiffs expended funds in anticipation of receiving an exclusive dealership, if their assertions are correct, but they were not told that their receipt of the dealership was dependent upon making the expenditures. The Court considers this a crucial distinction. The equitable considerations present in Hoffman are simply not compelling in this situation. Nor is plaintiffs’ argument that the promise was made both before and at the time of the execution of the dealership agreement availing. Although parol evidence to prove subsequent modifications of an agreement is admissible, 30 Am.Jur.2d Evidence, § 1063, p. 203 (1967), parol evidence of “prior or contemporaneous conversions or declarations” is incompetent. 30 Am.Jur.2d Evidence, § 1016, p. 149 (1967). See also Wis. Stat. § 402.202 (Uniform Commercial Code, § 2-202). The Court must now turn to the questions of fraud, duress and mutual mistake which were previously set aside. Plaintiffs do not allege duress or mutual mistake. They do, however, allege that they were fraudulently induced to enter into the contract by virtue of Heimbach’s promises. In Kinn, supra, Judge Reynolds found such a claim without merit under very similar circumstances. 582 F.Supp. at 687. It is clear that fraud cannot be based upon representations of things to be done in the future. Id. Parol evidence is admissible to show fraud, since it is not being used to contradict the terms of an agreement, but rather to demonstrate the invalidity of the agreement. State v. Conway, 26 Wis.2d 410, 132 N.W.2d 539 (1965). The application of the parol evidence rule to allegations of fraud was succinctly stated in Guyer v. Cities Service Oil Co., 440 F.Supp. 630 (E.D.Wis.1977); [P]arol evidence may be admissible in support of a claim of fraudulent inducement to enter into a contract, as in such a case there is no attempt made to vary the terms of the contract itself. Such inducements must, however, constitute promises made with a present intention not to perform, and must also be promises “upon which the purchaser has a right" }, { "docid": "11528294", "title": "", "text": "Donnelley & Sons’ unconditional right to draw down on the credit. The district court entered summary judgment against Wood on March 30, 1989, holding that the letter had been properly drawn down according to its terms. Turning to Wood’s fraud claim, the district court held that Wood complained of “ ‘a breach of faith or of an agreement regarding the doing or refraining from doing something in the future/ ” which, under Pennsylvania law, cannot support an attack on a written contract, (quoting Sokoloff v. Strick, 404 Pa. 343, 348, 172 A.2d 302 (1961)). The district court further noted that Wood did not claim that material terms had been fraudulently omitted from a contract. Quoting Nicolella v. Palmer, 432 Pa. 502, 507-08, 248 A.2d 20 (1968), the district court held that “ ‘the parol evidence rule would become a mockery’ ” if Wood were allowed to void the letter of credit by averring “ ‘that false representations were fraudulently made.’ ” The court concluded that Wood’s claim for fraudulent inducement was barred by the parol evidence rule and granted summary judgment against all of Wood’s claims. III. Discussion of the Parol Evidence Rule and the District Court’s Decision The parties have devoted substantial argument to whether the parol evidence rule may be invoked to bar Wood’s fraud claim. However, we need not address their positions in this regard because the real issue in this ease is whether the parol evidence rule has any applicability to the contract on which this particular claim is founded. The district court based its decision granting summary judgment for Donnelley on the assumption that Wood was seeking to utilize parol evidence to explicate or vary the terms of the letter of credit. That is, however, not what Wood’s suit seeks to accomplish. Instead, Wood’s suit is directed to the underlying oral agreement between him and Donnelley, which was separate and distinct from the letter of credit. “A letter of credit is essentially a promise by the ‘issuer’ (commonly a bank) to the ‘beneficiary’ (usually a seller of goods) to extend credit on behalf of the" }, { "docid": "5056408", "title": "", "text": "that an oral agreement to execute an agreement that is within the statute of frauds is itself within the statute, and unenforceable.” Backus Plywood Corp. v. Commercial Decal, Inc., 317 F.2d 339, 343 (2d Cir.), cert. denied, 375 U.S. 879, 84 S.Ct. 146, 11 L.Ed.2d 110 (1963). On this motion for summary judgment, however, there is no need to decide whether the agreement falls within or without the statute of frauds because the plaintiffs have asserted that, even if the case is within the statute, equitable considerations protect them. They allege that they incurred expenses for improvements and repairs in reliance on Miller's alleged promise. Section 217A of The Restatement (Second) of Contracts states that a promise that has induced detrimental reliance may be enforceable notwithstanding the statute of frauds if injustice can be avoided only by enforcement, and the Restatement enumerates the factors to be taken into account in making that determination. See Calamari & Perillo Law of Contracts § 19-48 (1977). The existence of those factors in a particular case is a factual controversy that does not lend itself to resolution on a motion for summary judgment. Although the Restatement doctrine has not been given a warm reception in New York, see Philo Smith & Co., Inc. v. USLIFE Corp., 554 F.2d 34, 36 (2d Cir.1977); Marcraft Recreation Corp. v. Francis Devlin Co., 506 F.Supp. 1081, 1085 (S.D.N.Y.1981), plaintiffs should have the opportunity to establish the facts which might support an estoppel. I therefore deny defendant’s motion for summary judgment dismissing the contract claims. II. The Unjust Enrichment Claims Plaintiffs also assert claims for “unjust enrichment,” a quasi-contractual claim for restitution. A contract that is unenforceable under the statute of frauds may give rise to such a recovery on the basis of an implied contract. See Calamari & Perillo Law of Contracts § 19-40 (1977). The existence of such an implied contract is a question of fact. 22 NY Jur 2d Contracts § 543 at 548. Defendant points out that a claim for unjust enrichment requires proof (1) that “defendant was enriched; (2) that such enrichment was at" }, { "docid": "3916260", "title": "", "text": "the Skyfox project adds support to the conclusion that the parties did not intend to share the ex penses, profits and losses of the project. There was no community of control over the management and direction of the business enterprise. The License Agreement spelled out the duties and responsibilities of the parties, and this agreement does not reflect a community of interest or common business undertaking. The clause from the November MOU referred to by the plaintiffs concerning the participation of O’Quinn as a pilot for the Skyfox prototype provides additional support for this conclusion contrary to the assertions of the plaintiffs. This clause specifically provides that BMAC will remain in control of all flight assignments. Finally, the parties, in the Proprietary Data Exchange Agreement, expressly stated that their intention was not to enter into a joint venture. The facts in the record, even when viewed in the light most favorable to the plaintiffs, fail to support the presence of a joint venture here. With the finding that no fiduciary relationship or joint venture existed between the parties, the court shall grant summary judgment to the defendant based on plaintiffs’ claims of fraud by concealment or silence. The court shall also grant summary judgment to the defendant on plaintiffs’ claims of breach of fiduciary duty. We next turn to plaintiffs’ claims that they were fraudulently induced to enter into the License Agreement based upon the affirmative misrepresentations made by Boeing and its agents. Contracting parties have a duty to learn and know the contents of a written contract before signing it. Vanier v. Ponsoldt, 251 Kan. 88, 833 P.2d 949, 959 (1992). “Where contracting parties have carried out negotiations and have subsequently entered into an agreement in writing with respect to the subject matter covered by such negotiations, the written agreement constitutes the contract between them and determines their rights.” Albers, 809 P.2d at 1197. The fact that a party signs a contract and does not know its contents is not alone sufficient to permit that party to void it. Id. In addition, the fact that the signing of a" }, { "docid": "19974206", "title": "", "text": "action, other action, or no further action is needed at the facility.” This rule suggests that the determination whether remedial action will occur will be made by DEQ, after a preliminary assessment is made, and not by the parties. Therefore, in order to proceed with remedial action, it was necessary for the Mc-Donalds to get approval from DEQ. As they did not, the district court’s grant of summary judgment on this issue will be affirmed. C. BREACH OF CONTRACT The McDonalds asserted a breach of contract claim based upon an alleged oral warranty by Sun’s Wally Freeman that the calcine was free of mercury. The district court granted summary judgment to Sun on this claim, citing the parol evidence rule and the merger doctrine. The McDonalds argue that it was error to grant summary judgment on either of these grounds. Because the Court concludes that the district court properly granted summary judgment to Sun based upon the parol evidence rule, we affirm the district court’s grant of summary judgment to Sun on the breach of contract claim and find it unnecessary to reach the merger doctrine issue. 1. Parol Evidence Rule Oregon’s statutory parol evidence rule states that “[w]hen the terms of an agreement have been reduced to writing by the parties, it is to be considered as containing all those terms, and therefore there can be ... no evidence of the terms of the agreement, other than the contents of the writing....” Or.Rev.Stat. § 41.740. “The term ‘agreement’ includes deeds ... as well as contracts between parties.” Id. However, the rule does not bar evidence extrinsic to the writing unless the writing is an integrated agreement. Abercrombie v. Hayden Corp., 320 Or. 279, 883 P.2d 845, 850 (1994) (citing Land Reclamation v. Riverside Corp., 261 Or. 180, 492 P.2d 263 (1972)). An agreement is integrated if “the parties intended [it] to be a final expression of some or all of the terms.... ” Abercrombie, 883 P.2d at 850; see also Restatement (Second) of Contracts § 209 (1979); 2 Farnsworth, Farns-worth on Contracts § 7.3 (1990); Calamari & Perillo, Contracts" }, { "docid": "3916284", "title": "", "text": "that the instant license agreement did not depend solely upon sales of the Skyfox for its consideration. The contract provided, inter alia, that Boeing would be required to perfect the patents of the plaintiffs’ designs. This responsibility, which no one disputes, cost Boeing over $40,000 and provided sufficient incentive that Boeing would attempt to commercialize and market the Skyfox. Accordingly, we do not find that the implication of a best efforts obligation is necessary here to establish mutuality of obligation. Moreover, the fact that Boeing had an absolute right to terminate the contract does not necessarily indicate that the contract was illusory. Where, as here, the right to cancel is in some way restricted, as by the requirement of giving notice, the contract cannot fail for want of consideration. See Sylvan Crest Sand & Gravel Co. v. United States, 150 F.2d 642, 644-45 (2d Cir.1945); Boccardo v. United States, 341 F.Supp. 858, 862-63 (N.D.Cal.1972). See also Calamari & Perillo, Contracts § 4 — 12(c)(4) (3d ed. 1987); 1A Corbin, Contracts § 163 (1963). A promise is not rendered insufficient as consideration by reason of a power of termination reserved to the promisor. The parties to a contract are permitted to include a provision permitting the contract to be terminated upon the option of either party. Whether the contract is illusory depends upon the other aspects of the contract. The instant License Agreement was not illusory for the aforementioned reasons. With the aforementioned rulings, the court finds that the defendant is entitled to summary judgment on plaintiffs’ claims of breach of the License Agreement, breach of a fiduciary relationship and fraud. III. Finally, the defendant contends that plaintiffs’ fourth claim must be dismissed. Plaintiffs’ position is that all data, spare parts and materials connected in any way with the Skyfox project should be returned to them. The basis for this claim is somewhat unclear. In their complaint, plaintiffs allege that “[b]y reason of the contractual and fiduciary relationship between the parties,” the defendant should be required to deliver to plaintiffs “all valuable and useful data and property in its possession related" }, { "docid": "3916286", "title": "", "text": "to the Skyfox airplane and the Skyfox project.” The court has already ruled that a fiduciary relationship is not present here. Accordingly, this contention provides no basis for the return of any materials to the plaintiffs. The contractual aspect of this claim is apparently based upon some language contained in the July 1 Agreement. However, this agreement was terminated on December 1, 1985. The other agreements before the court suggest that most of these items belong to Boeing. The License Agreement provides that the patents and know-how resulting from Boeing funded research and/or development work relating to Skyfox shall be the sole property of Boeing. The Proprietary Data Exchange Agreement provides that proprietary data belongs to the party who originates it, and the other party is not granted any license or ownership rights therein. Finally, many of the spare parts were purchased by Boeing and were paid for by Boeing. As to the items that belong to plaintiffs, the evidence before the court shows that they have been returned to plaintiffs. Plaintiffs have been unable to specifically identify any items that they contend should be returned to them by virtue of the agreements entered into by the parties. We find that defendant is also entitled to summary judgment on this claim. IT IS THEREFORE ORDERED that defendant’s motion for summary judgment (Doc. #84) be hereby granted. Judgment shall be entered for the defendant and against the plaintiffs on all claims. IT IS SO ORDERED. . This argument appears to be related to the plaintiffs' assertion that the presence of fraud allows the use of parol evidence to interpret the terms of the License Agreement. However, parol evidence in this context is ordinarily used to demonstrate the nonexistence of a binding contract. See Agristor Leasing v. Bertholf, 753 F.Supp. 881, 894-95 (D.Kan.1990). A contract which is fraudulently induced is usually declared void. Albers v. Nelson, 248 Kan. 575, 809 P.2d 1194, 1198 (1991). See also Restatement (Second) of Contracts § 164(1). Reformation or restitution may also be a remedy in some circumstances. See Restatement (Second) of Contracts § 165; Calamari and" }, { "docid": "8889110", "title": "", "text": "the Summer of 1995. The court previously granted Mer cury’s motion for summary judgment on this claim. See Oct. 22 Order at 12-14. Sithon now moves for reconsideration based on the same evidence and arguments it previously advanced to the court in its opposition papers to Mercury’s motion for summary judgment. Sithon bears the burden of proof to show the execution and existence of a contract for repairs with Mercury. See Van Brant v. Jackson, 212 Kan. 621, 623, 512 P.2d 517, 520 (1973). The Kansas Supreme Court, has held repeatedly that “[i]n order to form a binding contract, there must be a meeting of the minds on all essential terms.” Albers v. Nelson, 248 Kan. 575, 580, 809 P.2d 1194, 1198 (1991); see Sidwell Oil & Gas Co., Inc. v. Loyd, 230 Kan. 77, 79, 630 P.2d 1107, 1110 (1981). “To constitute a meeting of the minds there must be a fair understanding between the parties which normally accompanies mutual consent and the evidence must show with reasonable definiteness that the minds of the parties met upon the same matter and agreed upon the terms of the contract.” Sidwell, 230 Kan. at 84, 630 P.2d at 1113 (quoting Steele v. Harrison, 220 Kan. 422, 428, 552 P.2d 957, 962 (1976)). “Only reasonable certainty is required in a purported contract, but where the .purported contract is so vague and indefinite that the intentions of the parties cannot be ascertained, it is unenforceable.” Mohr v. State Bank of Stanley, 244 Kan. 555, 573, 770 P.2d 466, 480 (1989) (citing Jack Richards Aircraft Sales, Inc. v. Vaughn, 203 Kan. 967, 971, 457 P.2d 691 (1969)). Once again, we have analyzed carefully all of the evidence Sithon referenced in support of its contract for repair claim. Sithon referenced at least 53 statements of fact in its original summary judgment opposition brief as support for its claim that a contract to repair existed between Sithon and Mercury. Now, Sithon requests the court to review 21 of the 53 statements of fact for evidence of a contract to repair sometime in the Summer of 1995." } ]

[ { "docid": "13260095", "title": "", "text": "40 L.Ed.2d 224 (1974). The Supreme Court in this decision upholds censorship of prisoner mail provided two criteria are satisfied: (1) the regulation in question must further an important or substantial government interest unrelated to the suppression of expression, and (2) the limitations of First Amendment freedoms are no greater than necessary to protect the particular governmental interest involved. The situation which prevails at the State Correctional Institution at Pittsburgh depends upon the category of mail involved. Incoming and outgoing privileged mail, i. e., mail from lawyers, judges and state and federal officials is not censored in any way. Such mail sent to prisoners is opened by the inmate-addressee in the presence of an employee of the Institution and simply checked for any contraband. Privileged mail sent by a prisoner is never opened or spot-checked. All non-privileged incoming mail is opened and inspected for contraband before the inmate receives it, but it is not read, censored or repro duced. Non-privileged outgoing mail is spot-checked for security reasons to insure that mail privileges are not being abused, as for example to prevent attempts to devise escape plans. Otherwise, outgoing mail is not censored, read, or reproduced. On this basis it must be concluded that there is no constitutional violation of plaintiffs’ rights to receive or send mail, and that the criteria of Procunier, supra, are met. Closely related to the question of general mail censorship is the issue of the extent to which censorship of publications should be permitted. It is the Court’s belief that the standard announced in Procunier, supra, is also applicable to the receipt of various periodicals, books and magazines. A censorship committee has now been established to implement an administrative directive which sets guidelines for the censoring of various publications. This directive is included in Part A of an Appendix to this Opinion and is consistent with standards set forth in Procunier. The Court is satisfied that the screening process as employed with respect to various publications at the Pittsburgh Correctional Institution does not seek to unnecessarily hamper freedom of expression and that a substantial governmental interest" } ]

[ { "docid": "22822982", "title": "", "text": "to proceed without a three-judge court. . An earlier panel of this court, Gates v. Collier, 525 F.2d 965 (5 Cir. 1976), affirmed a district court order in that same case, Gates v. Collier, 390 F.Supp. 482 (N.D.Miss.1975), which permitted those restrictions on numerosity and addressees “imposed by the Associate Superintendent of Custody”. We think Gates inapposite here. That order was an interim one to be used for the time during which final regulations were written. We do not believe a final rule of such vagueness could have withstood Martinez scrutiny. . In Healy v. James, 408 U.S. 169, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972), the Supreme Court held that a state college could not refuse to grant permission to organize an SDS chapter merely because the local group wished to identify with the national group and that group’s purportedly dangerous philosophy. The Court remanded the case for a determination whether the students had in fact refused to accept reasonable governing regulations. Similarly group membership or identification would not, in this case, be sufficient to deny approval to a correspondent, [emphasis added], . We note at the outset that the TDC actually made two separate and distinct arguments for its prior approval requirement. In addition to the argument, set out in detail earlier, that lack of a prior approval requirement would prevent TDC from uncovering escape plans and from detecting contraband, the TDC argued strongly that the prior approval requirement was necessary to protect individuals who did not wish to receive mail from prisoners. Our analysis, based upon the rights of the would-be correspondents, assumes that we deal primarily with persons who wish to write to inmates but are not allowed to do so. The defendants’ exhibits contained examples of letters that the TDC interpreted as demonstrative of the need for close supervision of prisoner correspondence. The most frequent violation of prison rules occurred when a prisoner received mail which appeared to have been written by an individual on the prisoner’s mail list but was, in actuality, from an unapproved correspondent. The bulk of these letters were from women" }, { "docid": "1939016", "title": "", "text": "and repeatedly opened incoming and outgoing attorney mail outside prisoner’s presence sufficient to defeat offi cials’ motion for summary judgment). The Sixth and Tenth Circuits looked to the First Amendment. See Lavado v. Keohane, 992 F.2d 601, 609-10 (6th Cir.1993) (“opening/reading” incoming court, mail outside prisoner’s presence in arbitrary or capricious fashion violates First Amendment); Ramos v. Lamm, 639 F.2d 559, 582 (10th Cir.1980) (opening outgoing court and attorney mail outside presence of inmate violates the First Amendment), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981). The Second Circuit also relied on the First Amendment, but on the Petition Clause in particular. See Washington v. James, 782 F.2d 1134, 1139 (2d Cir.1986) (allegation that prison officials repeatedly opened outgoing attorney mail states claim for violation of rights'to petition and to correspond with legal counsel). The Fifth Circuit relied on a constitutional right of access to the courts, arising under the Due Process Clause. See Taylor v. Sterrett, 532 F.2d 462, 475 (5th Cir.1976) (prisoner’s right of access “requir[es] that incoming prisoner mail from courts ... be opened only in the presence of the inmate”). Taylor, however, may no longer be good law in the Fifth Circuit. See Brewer v. Wilkinson, 3 F.3d 816, 825 (5th Cir.1993) (opening incoming attorney or court mail outside inmate’s presence does not violate prisoner’s rights to free speech or court access), cert. denied, — U.S. -, 114 S.Ct. 1081, 127 L.Ed.2d 397 (1994); Walker v. Navarro County Jail, 4 F.3d 410, 413 (5th Cir.1993). Lastly, in the Ninth Circuit, Judge Reinhardt has argued in dissent that the right to privacy was at stake. Stevenson v. Koskey, 877 F.2d 1435, 1443 (9th Cir.1989) (Reinhardt, J., dissenting) (“reading legal mail is a violation of the prisoner’s privacy rights”). Similarly, district courts in our circuit, like the one herein, have concluded that to read legal mail or to open it outside a prisoner’s presence violates the Constitution, though they too have not agreed as to the constitutional rights at issue. See Jordan v. Fauver, 881 F.Supp. 947, 952-54 (reading legal mail in presence of" }, { "docid": "4947297", "title": "", "text": "333 (S.D.N.Y.1977), aff’d. in part and rev’d. in part, 573 F.2d 118 (2d Cir. 1978), rev’d., 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), this court rejected assorted tendered justifications for a prison requirement that all inmates’ outgoing mail be placed unsealed in the mailbox for reading at will by correction personnel, and, relying on various authority from other jurisdictions, ordered that inmates “be freed to seal outgoing mail, subject only to (a) inspection by electronic or other devices to detect hidden objects, without opening the letters, and (b) the power to read contents, in the sender’s presence upon a showing of good cause.” The court also upheld, citing Wolff v. McDonnell, supra, the prison rule allowing legal mail to be opened to check for contraband, but not read, in the presence of the inmates; incoming non-legal mail could be opened and inspected — but not read — without probable cause or the recipient’s presence. Id. at 343-44. The Court of Appeals, affirming in part and reversing in part the lower court’s multipronged directive to the administration of the Metropolitan Correctional Center, asserted inmates’ First Amendment right in correspondence, and without addressing the subject in depth, endorsed the conclusion that mail can be inspected for contraband, and for good cause in the case of outgoing mail, read. This holding seems to be somewhat of a retreat from Sostre’s blanket approval of the practice of reading all incoming and outgoing mail, see Semidey v. Ward, supra, slip op. at 18, n.6, despite its reference to Sostre for direct support, 573 F.2d 118, 130 & nn.27 & 28. The Supreme Court, while rejecting most of the burdens placed by the courts below on prison authorities, did not address the unchallenged injunction on “the reading and inspection of inmates’ outgoing and incoming mail except under specified circumstances.” 441 U.S. at 528, n.9, 99 S.Ct. at 1868, n.9. Thus the law in this circuit appears to be that, consistent with the Constitution prisoners’ general outgoing mail may be inspected for contraband, and for good cause, read; incoming mail may routinely be read." }, { "docid": "23322873", "title": "", "text": "be opened only in “appropriate circumstances” in the presence of the prisoner. 483 F.2d at 1067. Before the Supreme Court, the state prison officials retreated from the assertion of a right to open and read mail from attorneys to prisoners. Instead they contended: “that they may open all letters from attorneys as long as it is done in the presence of the prisoners. The narrow issue thus presented [wa]s whether letters determined or found to be from attorneys may be opened by prison authorities in the presence of the inmate or whether such mail must be delivered unopened if normal detection techniques fail to indicate contraband”. 418 U.S. at 575, 94 S.Ct. at 2984, 41 L.Ed.2d at 962. The procedure allowing the opening of mail from attorneys in the presence of prisoner recipients was challenged by the prisoners on First, Sixth, and Fourteenth Amendment grounds. The Court did not, however, elaborate the precise perimeters of any of the asserted rights. It held instead that the opening of mail from attorneys in the presence of prisoners did not infringe those rights. The Court also disapproved of any “flexible” test permitting opening of this correspondence only “in appropriate circumstances” or if there is a reasonable possibility that contraband is included in it. Id. at 576-577, 94 S.Ct. at 2985, 41 L.Ed.2d at 962-963. This disposition of Wolff left open significant questions concerning the constitutional underpinning of constraints on the opening and reading of inmate mail by prison officials. We recognized the vitality of those issues in Gates v. Collier, 5 Cir. 1974, 501 F.2d 1291, modified en banc as to attorneys’ fees, 1975, 522 F.2d 81, but did not decide them. In Gates, inmates at the Mississippi State Penitentiary at Parchman, Mississippi, alleged abridgement of constitutional and statutory rights by the existence of certain conditions and practices at the prison. One of the contested practices was the censoring of all incoming and outgoing mail of prisoners. Prior to trial, however, censorship was voluntarily eliminated and the opening of prisoner mail was limited to inspection of all incoming mail for money in the" }, { "docid": "21130996", "title": "", "text": "a ‘pattern of officially sanctioned. .. behavior,, violative of the plaintiffs’ [federal] rights.’ ” Id. (alterations in original) (quoting LaDuke v. Nelson, 762 F.2d 1318, 1324 (9th Cir.1985)). IV. Conclusions of Law. A. Sixth Amendment. 1. The Correct Legal Test. The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right.. .to have the Assistance of Counsel for his defence.” U.S. Const. Amend. VI; Gideon v. Wainwright, 372 U.S. 335, 342-43, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). In Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), the Supreme Court held that a prison regulation that permitted prison officials to open and inspect — but not read— incoming legal mail in the prisoner’s presence did not violate the Constitution. Nordstrom, 762 F.3d at 908-09 (citing Wolff, 418. U.S. at 577, 94 S.Ct. 2963). The Supreme Court did not address the extent to which prison officials could constitutionally examine or inspect an inmate’s legal mail. This case has produced the Ninth Circuit’s most direct treatment of this subject. On appeal from the Court’s initial dismissal, the Ninth Circuit began its analysis by recognizing that prison officials have legitimate penological interests in inspecting prisoners’ outgoing legal mail for contraband and evidence of illegal activity: A prison is no ordinary gated community. It’s a tough place. Corrections officials obviously have good reason to be on the lookout for contraband, escape plans, and other mischief that could jeopardize institutional security. Officials likewise have every right to inspect an inmate’s outgoing legal mail for such suspicious features as maps of the prison yard, the times of guards’ shift changes, and the like. Prison officials know what to look for. Id. at 906 (emphasis in original). The Supreme Court has made similar observations concerning legitimate peno-logical interests in prisoner mail: While the weight of professional opinion seems to be that inmate freedom to correspond with outsiders advances rather than retards the goal of rehabilitation, the legitimate governmental interest in the order and security of penal institutions justifies the imposition of certain restraints on inmate correspondence. Perhaps the" }, { "docid": "17394624", "title": "", "text": "adequately identified may not be read and may be opened only in the presence of the inmate for an inspection to determine whether it contains contraband. General correspondence, however, includes all other incoming and outgoing mail that is not designated as “special.” 28 C.F.R. § 540.2(a). This mail is subject to more stringent review. In security level IV, V, and VI institutions, outgoing general correspondence may not be sealed and may be read by the staff. The Federal Corrections Institution in Memphis, is a security level IV institution which requires that mail be reviewed. 28 C.F.R. § 540.-13(d). Pursuant to the regulations, the warden may reject correspondence sent by or to an inmate if it contains any of the following: (1) Matter that is nonmailable under law or postal regulations; (2) Information of escape plots, of plans to commit illegal activities, or to violate institutional rules; (3) Direction of an inmate’s business; (4) Threats, extortion, obscenity, or gratuitous profanity; (5) A code; or (6) Contraband. 28 C.F.R. § 540.13(e). The warden is required to notify the inmate in writing if any correspondence is rejected because of its content. The notice must clearly set forth the basis for the rejection of the mail. 28 C.F.R. § 540.12. The plaintiffs challenge these provisions as being an unconstitutional abridgment of first amendment rights. They argue that the regulations are overbroad and that the security related purposes of the regulations can be accomplished by less intrusive invasions of the plaintiff’s right to free speech and privacy. They further maintain that the first amendment does not permit the reading of general correspondence unless prison officials have cause to believe that the correspondence includes offensive material. We must begin our analysis with the recognition that a prisoner is not stripped of constitutional protections at the prison gate. Bell v. Wolfish, 441 U.S. 520, 545, 99 S.Ct. 1861, 1877, 60 L.Ed.2d 447 (1975). Rather, he “retains all the rights of an ordinary citizen except those expressly, or by necessary implication, taken from him by law.” Procunier v. Martinez, 416 U.S. 396, 422, 94 S.Ct. 1800,1816, 40 L.Ed.2d" }, { "docid": "22141060", "title": "", "text": "as to leave no doubt in the mind of a reasonable officer that his conduct, if challenged on constitutional grounds, would be found wanting. In assessing the clarity of the law relevant to the instant case, we begin by noting generally that “[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution.” Turner v. Safley, 482 U.S. 78, 84, 107 S.Ct. 2254, 2259, 96 L.Ed.2d 64 (1987). However, a certain limitation or retraction of retained freedoms of prisoners has been upheld in light of the central corrections goal of institutional security. See Bell v. Wolfish, 441 U.S. 520, 546-47, 99 S.Ct. 1861, 1877-78, 60 L.Ed.2d 447 (1979); Meadows v. Hopkins, 713 F.2d 206, 209-10 (6th Cir.1983). Federal courts should attempt to balance the “policy of judicial restraint regarding prisoner complaints and the need to protect constitutional rights.” Procunier v. Martinez, 416 U.S. 396, 406, 94 S.Ct. 1800, 1808, 40 L.Ed.2d 224 (1974); see also Turner, 482 U.S. at 84, 107 S.Ct. at 2259. Given this, we have maintained that, though receipt of incoming mail implicates constitutional rights, see Knop v. Johnson, 977 F.2d 996, 1012 (6th Cir.1992), cert. denied, — U.S. —, 113 S.Ct. 1415, 122 L.Ed.2d 786 (1993); Parrish v. Johnson, 800 F.2d 600, 603 (6th Cir.1986), prison officials may open prisoners’ incoming mail pursuant to a uniform and evenly applied policy with an eye to maintaining prison security. Parrish, 800 F.2d at 603. The Bureau of Prisons, Department of Justice, has established policies for opening and reading incoming prisoner mail, see 28 C.F.R. §§ 540.2-540.25 (1992). Neither the United States Supreme Court nor this circuit has held these regulations to be unconstitutional. Indeed, prior to the time of the alleged violations in the instant case, the Supreme Court had approved a prison policy which allowed the opening of legal mail in the presence of the prisoner. Wolff v. McDonnell, 418 U.S. 539, 577, 94 S.Ct. 2963, 2985, 41 L.Ed.2d 935 (1974). The Court also found it to be “entirely appropriate that the State require any [communications from an attorney] to be specially" }, { "docid": "18557164", "title": "", "text": "officials; if this is not satisfactory, he still has the state remedy of mandamus to compel prison officials to act in accordance with the prescribed rules, and he may also resort to action in federal court under 42 U.S.C. § 1983 for a specific infringement.” Gaines v. Lane, No. 84-3269, Order at 5 (S.D.Ill. Feb. 25, 1985). In light of these safeguards, we hold that, as a matter of law, these regulations strike “a proper balance between the constitutional rights of the appellants and the legitimate concerns of prison officials.” Meadows v. Hopkins, 713 F.2d 206, 211 (6th Cir.1983). Privileged Mail A Rule 525.140(b) is equally justifiable. That rule allows incoming privileged mail to “be opened in the presence of the committed person to whom it is addressed to inspect for contraband, to verify the identity of the sender, and to determine that nothing other than legal or official matter is enclosed.” This practice has already been condoned by the Supreme Court. In Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), the Court stated, with respect to privileged mail: As to the ability to open the mail in the presence of inmates, this could in no way constitute censorship, since the mail would not be read. Neither could it chill such communications, since the inmate’s presence insures that prison officials will not read the mail. The possibility that contraband will be enclosed in letters, even those from apparent attorneys, surely warrants prison officials’ opening the letters. Id. at 577, 94 S.Ct. at 2985. We therefore decline the appellants’ invitation to require the Department to justify anew a clearly permissible regulation. Quite obviously, a different situation would be present if the prison officials actually read the privileged mail. However, that “as applied” argument is not before us today. See supra note 1. Rather, the appellants have simply challenged a Department regulation which, on its face, allows prison officials to search privileged mail for contraband while the prisoners look on. That is precisely what Wolff permits. See Jensen v. Klecker, 648 F.2d 1179, 1182 (8th Cir.1981). B" }, { "docid": "4248682", "title": "", "text": "of these issues is the “censoring” of incoming mail for inmates. It is the practice at the Tombs to open all letters destined for inmates to ascertain whether they contain contraband or money. The defendants allege that the letters are not censored, cf. Carothers v. Follette, 314 F.Supp. 1014 (S.D.N.Y.1970), or even read by the correction personnel who inspect them, and plaintiffs do not point to any specific instances in which it is contended that correspondence has been read, their general assumption being that if mail is opened for “inspection” of the contents for contraband the privacy of the correspondents is inevitably reduced even though the message is not read in every case. Plaintiffs do not contest defendants’ statement that there are no restrictions on outgoing mail which inmates wish to send: letters are sealed by the inmate and not opened, and there is no limitation on the number of letters which may be sent, cf. Lee v. Tahash, 352 F.2d 970 (8th Cir. 1965) (regulation limiting inmate to 12 correspondents upheld), or’to whom they may be sent, cf. Peek v. Ciccone, 288 F.Supp. 329, 334 (W.D.Mo.1968). Inspection of incoming mail has not been invalidated, or even directly considered, in any of the more recent cases which have come to our attention, though it is apparently a common prison practice, cf. Hatfield v. Bailleaux, 290 F.2d 632, 639 (9th Cir. 1961), cert. denied, 368 U.S. 862, 82 S.Ct. 105, 7 L.Ed.2d 59 (1961); Ortega v. Ragen, 216 F.2d 561 (7th Cir. 1954), cert. denied, 349 U.S. 940, 75 S.Ct. 786, 99 L.Ed. 1268 (1955). While Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971), held that, under the facts of that case, censorship of mail and refusal to mail a letter of complaint violated the prisoner’s right to communicate, the Sostre court did not find that all controls on the correspondence of inmates were constitutionally impermissible. On the basis of the affidavits submitted on behalf of both sides, we perceive no deprivation of constitutional rights in the general practice of opening incoming mail for purposes of inspection for contraband as" }, { "docid": "23322875", "title": "", "text": "presence of the prisoner. The district court, nonetheless, entered its judgment in October 1972, substantially limiting the ability of prison officials to open, inspect, or read prisoner correspondence. N.D.Miss. 1972, 349 F.Supp. 881. The district court’s order resulted in the promulgation of new state penitentiary regulations regarding prisoner correspondence. See Gates v. Collier, 501 F.2d at 1310-1311 and n. 8. This circumstance as well as the parties’ failure to challenge specifically the district court’s order regarding prisoner correspondence made it: “inappropriate in . . [Gates] to delimit the boundaries of the First Amendment mail protection of the inmates’ correspondents and to define to what extent an inmate’s First Amendment rights survive incarceration”. Id. at 1314. We concluded that: “[therefore, we do not adjudicate whether the requirements that the inspection be in the presence of the inmates, as well as the other components of the district court’s order are constitutionally compelled . . . .” Id. B. APPLICABLE PRISONERS’ RIGHTS The appellants’ contention that they may open, inspect, and read all prisoner correspondence with the persons listed in the revised paragraph 4 brings before us not only the First Amendment issues left undecided in Gates, but also questions involving the alleged abridgement of prisoner rights to access to the courts and to effective representation of counsel. Since the district court’s initial and revised orders were made in the context of a constitutional challenge to jail practices affecting prisoner mail, our examination of the possible constitutional underpinnings of paragraph 4 must refer to the prisoners’ allegations. In their original complaint the plaintiffs launched a broad attack upon constraints on prisoner communication and facilities for communication with persons outside the jail. Those constraints, including restrictions on prisoner mail, allegedly abridged prisoner rights to due process and equal protection of the law, “access to the courts, adequate preparation for trial, adequate representation by counsel, a fair trial, the right to petition for redress of grievances, and the freedom of association and political thought.” On appeal the prisoners narrowed this variety of constitutional grievances to three basic constitutional contentions. The appellees assert that the revised" }, { "docid": "23322925", "title": "", "text": "discover drugs, weapons or other material expressly prohibited by state or federal laws or by prison rules. Gates v. Collier, 349 F.Supp. at 898-899. .The district court later had occasion to consider the constitutional justification for one aspect of the revised prison mail regulations. It received evidence “on the limited issue of the prison officials’ authority to open and inspect, but not read, in-coming inmate mail of a non-privileged character, in the absence of the inmate”. Gates v. Collier, N.D.Miss.1975, 390 F.Supp. 482, 484-485, aff’d per curiam, 5 Cir. 1976, 525 F.2d 965. Privileged mail was defined as that addressed to or received from courts, public officials or agencies, and inmates’ attorneys. Id. at 492-93. Practical difficulties in following the procedure of opening incoming inmate mail of a non-privileged nature only in the presence of the inmate at the 20 widely scattered residential units at Parch-man resulted in an “uninterrupted” flow of contraband materials, such as merchandise fraudulently ordered on credit by inmates, cash, and drugs. In this factual context the court held that the state’s substantial interests of security, discipline, and good order justified the inspection only of incoming mail from the general public at a central location in the absence of the inmate-addressee. 390 F.Supp. at 484 & n. 2. It also held that this procedure was not violative of any First Amendment rights and conformed with the instruction of Procunier v. Martinez. On appeal, we held that the trial court did not abuse its broad discretion by this revision of an ongoing injunctive decree. 525 F.2d at 966. . During oral argument counsel for the appellants clarified the reading aspect of this activity by stating that mail would be read only for information affecting jail security. Their counsel also indicated that attorney-client messages intercepted in the course of reading inmate mail would be considered confidential. . The district court, however, did not specifically elaborate the constitutional justification for either its original or revised paragraph 4. See 344 F.Supp. 414, 422. . See, e. g., Martin v. Wainwright, 5 Cir. 1976, 526 F.2d 938 (prisoner’s pleadings stated a" }, { "docid": "4248681", "title": "", "text": "neck of unruly federal prisoner awaiting trial held cruel and unusual punishment; jailor fined $50 but imposition of fine suspended), and the fact that they have not been convicted of any crime may understandably aggravate the perceived severity of the deprivations which have been brought on by the- disturbances. However, in view of the conscientious and concerned efforts being made by all state and city authorities involved to apply their expertise and available resources to betterment of the conditions we, in the exercise of our discretion, deny the motion for a preliminary injunction against cruel and unusual punishment, cf. Ex parte Pickens, 101 F.Supp. 285, 13 Alaska 477 (D.Alaska 1951) (overcrowding and dangerous conditions contested by federal prisoner awaiting trial; habeas corpus petition denied). We turn finally to two additional claims raised by plaintiffs — the “eensorship” of incoming mail, and the absence of prison rules. Plaintiffs base these claims on constitutional provisions other than the Eighth Amendment, while defendants do not argue that the challenged practices were necessitated by the inmate disruptions. The first of these issues is the “censoring” of incoming mail for inmates. It is the practice at the Tombs to open all letters destined for inmates to ascertain whether they contain contraband or money. The defendants allege that the letters are not censored, cf. Carothers v. Follette, 314 F.Supp. 1014 (S.D.N.Y.1970), or even read by the correction personnel who inspect them, and plaintiffs do not point to any specific instances in which it is contended that correspondence has been read, their general assumption being that if mail is opened for “inspection” of the contents for contraband the privacy of the correspondents is inevitably reduced even though the message is not read in every case. Plaintiffs do not contest defendants’ statement that there are no restrictions on outgoing mail which inmates wish to send: letters are sealed by the inmate and not opened, and there is no limitation on the number of letters which may be sent, cf. Lee v. Tahash, 352 F.2d 970 (8th Cir. 1965) (regulation limiting inmate to 12 correspondents upheld), or’to whom they" }, { "docid": "23322874", "title": "", "text": "did not infringe those rights. The Court also disapproved of any “flexible” test permitting opening of this correspondence only “in appropriate circumstances” or if there is a reasonable possibility that contraband is included in it. Id. at 576-577, 94 S.Ct. at 2985, 41 L.Ed.2d at 962-963. This disposition of Wolff left open significant questions concerning the constitutional underpinning of constraints on the opening and reading of inmate mail by prison officials. We recognized the vitality of those issues in Gates v. Collier, 5 Cir. 1974, 501 F.2d 1291, modified en banc as to attorneys’ fees, 1975, 522 F.2d 81, but did not decide them. In Gates, inmates at the Mississippi State Penitentiary at Parchman, Mississippi, alleged abridgement of constitutional and statutory rights by the existence of certain conditions and practices at the prison. One of the contested practices was the censoring of all incoming and outgoing mail of prisoners. Prior to trial, however, censorship was voluntarily eliminated and the opening of prisoner mail was limited to inspection of all incoming mail for money in the presence of the prisoner. The district court, nonetheless, entered its judgment in October 1972, substantially limiting the ability of prison officials to open, inspect, or read prisoner correspondence. N.D.Miss. 1972, 349 F.Supp. 881. The district court’s order resulted in the promulgation of new state penitentiary regulations regarding prisoner correspondence. See Gates v. Collier, 501 F.2d at 1310-1311 and n. 8. This circumstance as well as the parties’ failure to challenge specifically the district court’s order regarding prisoner correspondence made it: “inappropriate in . . [Gates] to delimit the boundaries of the First Amendment mail protection of the inmates’ correspondents and to define to what extent an inmate’s First Amendment rights survive incarceration”. Id. at 1314. We concluded that: “[therefore, we do not adjudicate whether the requirements that the inspection be in the presence of the inmates, as well as the other components of the district court’s order are constitutionally compelled . . . .” Id. B. APPLICABLE PRISONERS’ RIGHTS The appellants’ contention that they may open, inspect, and read all prisoner correspondence with the persons" }, { "docid": "17394623", "title": "", "text": "free postage to inmates without independent financial means. This issue, however, was subsequently rendered moot by a change in federal regulatory policy. The challenged regulation now provides that upon request, the institution shall provide the postage for indigent inmates to enable them to maintain community ties. Because the revised regulations address the concerns of indigent inmates, their claim no longer requires judicial resolution. The remaining issue concerns Bureau of Prisons regulation 28 C.F.R. § 540.13. That provision authorizes institution staff to open, inspect and read if necessary the incoming and outgoing general correspondence of inmates. According to the regulatory scheme governing correspondence, inmate mail is divided into two categories— “Special Mail” and “General Correspondence”. Special Mail includes inter alia correspondence sent to or received from Federal and State officials, news media, representatives and Legal Officers (i.e. State Attorneys General, Prosecuting Attorneys, Legislators, Probation Officers, U.S. and State Courts). 28 C.F.R. § 540.2(c). Outgoing special mail may be sealed by the inmate and is not subject to inspection. Incoming special mail on which the sender is adequately identified may not be read and may be opened only in the presence of the inmate for an inspection to determine whether it contains contraband. General correspondence, however, includes all other incoming and outgoing mail that is not designated as “special.” 28 C.F.R. § 540.2(a). This mail is subject to more stringent review. In security level IV, V, and VI institutions, outgoing general correspondence may not be sealed and may be read by the staff. The Federal Corrections Institution in Memphis, is a security level IV institution which requires that mail be reviewed. 28 C.F.R. § 540.-13(d). Pursuant to the regulations, the warden may reject correspondence sent by or to an inmate if it contains any of the following: (1) Matter that is nonmailable under law or postal regulations; (2) Information of escape plots, of plans to commit illegal activities, or to violate institutional rules; (3) Direction of an inmate’s business; (4) Threats, extortion, obscenity, or gratuitous profanity; (5) A code; or (6) Contraband. 28 C.F.R. § 540.13(e). The warden is required to notify" }, { "docid": "20809188", "title": "", "text": "Godwin, 400 F.2d 529, 541 (5th Cir. 1968); Gates v. Collier, 349 F.Supp. 881, 896 (N.D.Miss. 1972) ; Palmigiano v. Travisono, 317 F. Supp. 776, 785 (D.R.I. 1970)); ef. Guajardo v. McAdams, 349 F.Supp. 211 (S.D. Tex.1972); Brenneman v. Madigan, 343 F.Supp. 128, 141-142 (N.D. Cal. 1972); Burnham v. Oswald, 342 F.Supp. 880 (W.D. N.Y. 1972); Hillery v. Procunier, C-71 2150 SW (N.D. Cal. 1972) (judgment vacated and temporary restraining order granted pending decision by three-judge court October 31, 1972); Note: Prison Mail Censorship and the First Amendment, 81 Yale L.J. 87 (1971). A few courts have required that the state show a compelling interest. See, e. g., Morales v. Schmidt, 340 F.Supp. 544 (W.D. Wis. 1972); Fortune Society v. McGinnis, 319 F.Supp. 901 (S.D. N.Y. 1970). But see Baker v. Beto, 349 F.Supp. 1263 (S.D. Tex. 1972). This Court need not decide between the “compelling” and “reasonable and necessary” tests since it holds that the regulations in question violate the First Amendment under either standard. Plaintiffs correctly assert that the regulations in question are deficient in several respects. The regulations permit censoring of lawful expressions without any apparent justification. Phrases such as “defamatory”, “otherwise inappropriate”, “unduly complain”, and “magnify grievances”, include writings which are not obscene and do not present a clear and present danger to any justifiable state interest. Such writings are, therefore, protected by the First Amendment. No conceivable justification on the grounds of prison security necessarily requires such broad formulation of censorship standards. Nor does it appear that defendant’s legitimate interest in preserving internal discipline is served by applying these criteria to incoming mail. Moreover, assuming that the requirements of prison security justify censoring outgoing mail in some circumstances, the regulations in ques tion here are both vague and overbroad. Legitimate communications, though personally offensive to prison staff could be —-and have been — censored on the grounds that statements in letters were “defamatory”, or “otherwise inappropriate”, or that they constitute undue complaints or magnified grievances. If censorship of outgoing personal mail is to continue, the regulations must be more narrowly and specifically drawn to prohibit" }, { "docid": "4947296", "title": "", "text": "693 (2d Cir. 1975), cert. denied, 424 U.S. 973, 96 S.Ct. 1476, 47 L.Ed.2d 743 (1976), an attorney-prisoner mail case, the Court of Appeals reaffirmed the Sostre holding sanctioning “the opening and reading of prisoner’s [sic] mail, even from an attorney, in the interest of prison security,” 516 F.2d at 1372, noted that the rule with respect to attorney-prisoner mail might be in need of reexamination in light of decisions in other circuits and intervening pronouncements by the Supreme Court, id. n.8; Semidey v. Ward, supra, slip op. at 17 n.5, but held that plaintiff at bar had in any case not demonstrated injury from the complained-of instances of opening of letters from his attorney (including only one letter clearly marked as such). See also Cofone v. Manson, 409 F.Supp. 1033, 1042-43 (D.Conn.1976); Centeno v. Dep’t. of [Correspondence of Attica] Corrections [Facility], 408 F.Supp. 1117 (S.D.N.Y.1976). Cf. Morgan v. Montanye, 521 F.2d 693 (2d Cir. 1975) (Oakes, J., dissenting from denial of rehearing en banc). In United States ex rel. Wolfish v. Levi, 428 F.Supp. 333 (S.D.N.Y.1977), aff’d. in part and rev’d. in part, 573 F.2d 118 (2d Cir. 1978), rev’d., 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), this court rejected assorted tendered justifications for a prison requirement that all inmates’ outgoing mail be placed unsealed in the mailbox for reading at will by correction personnel, and, relying on various authority from other jurisdictions, ordered that inmates “be freed to seal outgoing mail, subject only to (a) inspection by electronic or other devices to detect hidden objects, without opening the letters, and (b) the power to read contents, in the sender’s presence upon a showing of good cause.” The court also upheld, citing Wolff v. McDonnell, supra, the prison rule allowing legal mail to be opened to check for contraband, but not read, in the presence of the inmates; incoming non-legal mail could be opened and inspected — but not read — without probable cause or the recipient’s presence. Id. at 343-44. The Court of Appeals, affirming in part and reversing in part the lower court’s multipronged" }, { "docid": "838990", "title": "", "text": "mail to inmates from attorneys. Without describing precisely the limits of the first, sixth, and fourteenth amendment rights asserted by the prisoners, the Court in Wolff upheld a narrow regulation permitting prison officials to open and inspect attorney mail for contraband in the presence of the inmate. In Taylor v. Sterrett, supra, the Fifth Circuit sustained a broad-based challenge to rules and practices of the Dallas County Jail affecting outgoing and incoming prisoner correspondence with attorneys, courts, governmental officials, and the media. Inmates of the Dallas County Jail objected to the opening, inspecting, and reading of that correspondence on the basis of their first amendment rights, their fourteenth amendment right to access to the courts, and their sixth amendment right to effective assistance of counsel. Before beginning its explication of the constitutional standards applicable to inmate communication with each type of correspondent, the court discussed the import of the implicit sanction given reading and censorship of inmate mail by the Procunier v. Martinez majority. The Fifth Circuit explained that Procunier did not preclude a prohibition on reading inmate correspondence under the special circumstances presented in Taylor. The court emphasized that the mail procedures before it affected limited, special groups of correspondents, not the general public, noting that: The nature of the former correspondents brings into play prisoner interests in access to the courts and effective assistance of counsel. When First Amendment interests are intermeshed with other fundamental prisoner interests, courts are aware that special protections may be necessary. 532 F.2d at 466 (citation omitted). Turning to an assessment of the interests involved in prisoner correspondence with courts, attorneys, and probation and parole officers, Judge Wisdom, for the panel, found no governmental interest to justify either reading or opening outgoing mail. The government’s interest in maintaining jail security did support the opening of incoming mail from those sources, but only for an inspection for contraband, and only in the presence of the inmate. The court found the primary underpinning for that conclusion in the fourteenth amendment right of access to the courts. Evaluation of jail procedures for handling prisoner correspondence with" }, { "docid": "23322903", "title": "", "text": "use of purportedly legal correspondence to lay plans for unlawful schemes. Cf. Wilkinson v. Skinner, 2 Cir. 1972, 462 F.2d 670, 671. Of equal importance is the fact that the reading of this correspondence is the sole activity which diminishes an inmate’s access to the courts by inhibiting written communications with certain correspondents. External tests for contraband, such as fluoro-scoping or manipulating the envelope, do not have this effect. See Marsh v. Moore, 325 F.Supp. at 395. As Justice Marshall noted in Wolff, neither does inspecting an envelope for contraband in the presence of the inmate without reading enclosed materials. 418 U.S. at 580, 94 S.Ct. at 2986, 41 L.Ed.2d at 965 (dissenting). Allowing the inspection of incoming inmate mail from these sources only in the presence of the inmate accomplishes a compromise of two important interests without sacrificing either of them. Prisoners are not inhibited in using this traditional communication medium to pursue their defense or to present their legal grievance. And jail officials are not denied the use of any mail procedure shown to be essential to jail security. Furthermore, our holding comports with several recent decisions in this circuit. In Frazier v. Donelon, E.D.La.1974, 381 F.Supp. 911, 918-919, aff’d per curiam, 5 Cir. 1975, 520 F.2d 941 (unpublished), cert. denied, - U.S. -, 96 S.Ct. 1134, 47 L.Ed.2d 332 (No. 75-5905, 1976), the district court held that outgoing inmate mail to courts and attorneys could not be opened or read. Incoming mail from these sources was to be opened only in the presence of the prisoner, but not read. To obtain this treatment for their correspondence with prisoners, attorneys were required first to notify prison officials of the existence of an attorney-client relationship. The Frazier approach to an inmate’s legal correspondence closely follows the district court’s handling of this problem in Guajar-do v. McAdams, S.D.Tex.1972, 349 F.Supp. 211, and Lamar v. Kern, S.D.Tex. 1972, 349 F.Supp. 222. In both cases, the district judge required that outgoing inmate mail to courts, attorneys, and government agencies be uncensored and undelayed. Incoming mail from these sources could be opened only" }, { "docid": "23322924", "title": "", "text": "the state Senate and House of Representatives and officials of any state agency or department; (c) All members and employees of the State Probation and Parole Board; (d) The attorney of record of an inmate in any pending action, civil or criminal, in any duly constituted local, state or federal court. (2) Said defendants, and all persons in privity with them, are prohibited from interfering with outgoing mail of inmates to any other addressee except to open and inspect, in the presence of the inmate, any letter where prison officials have reasonable grounds to suspect such communication is an attempt to formulate, devise or otherwise effectuate a plan to escape from the penitentiary, or to violate the laws of the State of Mississippi or of the United States. (3) The defendants, and all persons in privity with them, are prohibited from interfering with incoming mail from any source except to open and inspect such mail, in the presence of the inmate addressee, whenever the prison officials have reasonable grounds to suspect escape attempts or to discover drugs, weapons or other material expressly prohibited by state or federal laws or by prison rules. Gates v. Collier, 349 F.Supp. at 898-899. .The district court later had occasion to consider the constitutional justification for one aspect of the revised prison mail regulations. It received evidence “on the limited issue of the prison officials’ authority to open and inspect, but not read, in-coming inmate mail of a non-privileged character, in the absence of the inmate”. Gates v. Collier, N.D.Miss.1975, 390 F.Supp. 482, 484-485, aff’d per curiam, 5 Cir. 1976, 525 F.2d 965. Privileged mail was defined as that addressed to or received from courts, public officials or agencies, and inmates’ attorneys. Id. at 492-93. Practical difficulties in following the procedure of opening incoming inmate mail of a non-privileged nature only in the presence of the inmate at the 20 widely scattered residential units at Parch-man resulted in an “uninterrupted” flow of contraband materials, such as merchandise fraudulently ordered on credit by inmates, cash, and drugs. In this factual context the court held that the" }, { "docid": "23609861", "title": "", "text": "F.Supp. 1119 (D.N.H.1971); Marsh v. Moore, 325 F.Supp. 392 (D. Mass.1971); Meola v. Fitzpatrick, 322 F.Supp. 878 (D.Mass.1971); Palmigiano v. Travisono, 317 F.Supp. 776 (D.R.I.1970); Carothers v. Follette, 314 F.Supp. 1014 (S.D.N.Y.1970). Accordingly, “any prison regulation or practice which restricts the [First Amendment] right of free expression that a prisoner would have enjoyed if he had not been imprisoned must be related both reasonably, and necessarily, to the advancement of some justifiable purpose of imprisonment.” (Citations omitted). Carothers v. Follette, supra at 1024. Despite the recent adoption of somewhat generous rules abolishing censorship and governing prisoner correspondence effective May 5, 1972, we are convinced from the evidence that the arbitrary censorship and suppression of inmate mail unrelated to legitimate needs for security, rehabilitation, or orderly prison administration has long been the accepted practice at Parchman. Total censorship may not be imposed at the whim of prison officials. The present correspondence rules at Parchman apparently do not contemplate a need sufficiently compelling to justify opening outgoing inmate mail addressed to “officers of the federal, state, and local courts, all federal officials, all state officials, all officials of the Mississippi State Penitentiary administrative staff and letters to the Probation and Parole Board.” Such correspondence is classified as privileged and will not be opened. Applying the same reasoning, we hold that there is no justifiable reason for not considering an inmate’s outgoing correspondence to his attorney of record to be likewise privileged. Other classes of outgoing mail, however, may be screened to detect escape attempts or other illegal activity. There may be a justifiable need to inspect incoming mail from any source (including correspondence to inmates ostensibly from courts, public officials, agencies and his counsel) in order to discover drugs, weapons, or other contraband ; in addition, incoming mail may be read to frustrate escape plans or other illegal activity. We hold that an inmate’s right to send and receive correspondence to courts, public officials and his attorney of record may be impeded only to the limited extent of inspecting incoming mail from these sources as herein prescribed. No justifiable reason exists to" } ]

[ { "docid": "21555038", "title": "", "text": "application of the guidelines by determining that his relevant conduct involved a greater amount of cocaine, resulting in a higher base offense level, than the amount to which the parties had stipulated and which the court had accepted as the relevant conduct at the time the court accepted the plea. Garcia does not suggest that the district court is bound by the quantity of drugs mentioned in the indictment. He simply maintains that the court is bound by stipulations entered into between the parties and which were accepted by the court when he entered his plea. This court, in United States v. Sarasti, 869 F.2d 805, 806-07 (5th Cir.1989), held that the trial court is not bound by the quantity of drugs mentioned in the indictment. In essence, Garcia appears to contend for a benefit of the bargain approach under which the court would be bound by the express terms of the plea agreement. But this is not the approach the Commission adopted. The Commission, in referring to plea agreements, has provided that “[t]he court is not bound by the stipulation, but may with the aid of the presentence report, determine the facts relevant to sentencing.” § 6B1.4(d). Garcia interprets the commentary to § 6B1.4, that “[sjection 6B1.4(d) makes clear that the court is not obliged to accept the stipulation of the parties,” to mean that once the court has accepted the stipulation, it has thereby bound itself to the terms of the stipulation irrespective of whatever additional information may be brought to the court’s attention in the pre-sentence report. Garcia simply fails to consider the balance of the commentary, which provides that [e]ven though stipulations are expected to be accurate and complete, the court cannot rely exclusively upon stipulations in ascertaining the factors relevant to the determination of sentence. Rather, in determining the factual basis for the sentence, the court will consider the stipulation, together with the results of the presentence investigation, and any other relevant information. § 6B1.4 commentary (emphasis added). A fair reading of the section and commentary support the district court’s position that it was entitled" } ]

[ { "docid": "23233767", "title": "", "text": "evidence tends to corroborate and confirm the quantity of drugs to which Mr. Todd himself admitted possessing and redistributing. B In the face of the government’s substantial factual showing, Mr. Todd makes no effort to point us to any countervailing facts tending to support the district court’s finding that he possessed only 37 grams of methamphetamine. Instead, Mr. Todd advances a pair of purely legal arguments seeking to suggest that the district court was legally obliged to disregard the drug quantities specified in Mr. Todd’s admission to Detective Park. Both such arguments, however, are foreclosed by our precedent. 1 Mr. Todd first argues that the two ounces of methamphetamine per month that he admitted possessing in his conversation with Detective Park cannot be considered because those quantities were not included in the charges on which Mr. Todd was convicted. The Guidelines themselves, however, require that the calculation of the base offense level for the drug charges against Mr. Todd take into account “all acts ... that were part of the same course of conduct or common scheme or plan as the offense of conviction.” U.S.S.G. § lB1.3(a)(2); see also id. § 2D1.1, cmt. 12 (“Types and quantities of drugs not specified in the count of conviction may be considered in determining the offense level.”). Accordingly, we have held that district courts must “aggregate the quantities of drugs that were part of the same course of conduct” when determining a base offense level under the Guidelines. United States v. Ross, 920 F.2d 1530, 1538 (10th Cir.1990) (internal quotations omitted). We have further specified that quantities of drugs that satisfy this criteria but for which the defendant was not convicted or even indicted should still be included in the aggregate calculation under the Guidelines. See id. We reiterated this principle in United States v. Washington, and in numerous cases since, explaining that “[t]he guidelines require that all relevant conduct be considered at sentencing. Drug quantities associated with illegal conduct for which a defendant was not convicted are to be accounted for in sentencing, if they are part of the same conduct for" }, { "docid": "17471921", "title": "", "text": "one base offense level ... shall be determined on the basis of the following: (1) all acts and omissions committed or aided and abetted by the defendant, or for which the defendant would be otherwise accountable, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense, or that otherwise were in furtherance of that offense; (2) solely with respect to offenses of a character for which § 3D1.2(d) would require grouping of multiple counts, all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction; (3) all harm that resulted from the acts or omissions specified in subsections (a)(1) and (a)(2) above, and all harm that was the object of such acts or omissions; and (4) any other information specified in the applicable guideline. U.S.S.G. § lBl.S(a). In this circuit, under these rules, it is well established that in determining the base offense level, the sentencing court may consider quantities of drugs not specified in the count of conviction. See, e.g., Sarasti, 869 F.2d at 806 (“The guidelines make plain that the district court is not bound by the quantity of drugs mentioned by the indictment.”); United States v. Taplette, 872 F.2d 101, 106 (5th Cir.), cert. denied, — U.S. -, 110 S.Ct. 128, 107 L.Ed.2d 88 (1989) (“The January 15, 1988 revisions ... indeed make clear now that the guidelines allow the consideration of relevant conduct for which the defendant was not convicted in determining the actual guideline range.”); United States v. Juarez-Ortega, 866 F.2d 747, 748 (5th Cir.1989) (at sentencing, “the court may properly consider past crimes including those for which a defendant has been indicted but not convicted, as well as the factual basis of dismissed counts.”); United States v. Byrd, 898 F.2d 450, 452 (5th Cir.1990) (“The guidelines make clear that in drug distribution cases quantities of drugs not specified in the count of conviction are to be included in determining the base offense" }, { "docid": "23390136", "title": "", "text": "to enforce it. Appellant argues the Government’s breach is twofold: (1) the failure of the Government to file a representative cooperation memorandum; and (2) the Government’s attempt to circumvent the agreed amount of drugs attributable to the defendant. The Guidelines specifically provide that parties may stipulate to facts relevant to sentencing in their plea agree ment. U.S.S.G., § 6B1.4(a). However, the district court may decline to follow a sentence recommendation when it finds the stipulated facts do not accurately reflect “all relevant conduct bearing upon the guideline range.” United States v. Richardson, 901 F.2d 867, 869 (10th Cir.1990). The district court made it clear at the first sentencing hearing that it did not find “the plea agreement adequately reflected] the seriousness of the[ ] charges,” and that assuming the information it had received was true, it “consider[ed] the almost minuscule quantities of methamphetamine that the plea agreement contemplated ... inadequate.” In addition, the plea agreement in this case contained a provision indicating the parties’ understanding that “sentencing is entirely within the discretion of the sentencing court and that the United States has made no promises or representations to this defendant or his attorney regarding what sentence or sentence guideline range might be imposed.” This is consistent with U.S.S.G. § 6B1.4(d), p.s., which provides that “[t]he [sentencing] court is not bound by the stipulations]” contained in the plea agreement. “Rather, in determining the factual basis for the sentence, the court will consider the stipulation, together with the results of the presentence investigation, and any other relevant information.” U.S.S.G. § 6B1.4, comment, para. 3. The district court’s consideration of information not stipulated in the plea agreement is further supported by this court’s decision in United States v. Boyd, 901 F.2d 842, 844 (10th Cir.1990). In Boyd, we acknowledged that U.S.S.G. § lB1.3(a) requires a sentencing court in determining the offense level to consider all “ ‘acts or omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction.’ ” Boyd, 901 F.2d at 844 (quoting U.S.S.G. § lB1.3(a)). Furthermore, in this case, the" }, { "docid": "12647232", "title": "", "text": "base offense level where the guideline specifies more than one base offense level ... shall be determined on the basis of ... (2) solely with respect to offenses of a character for which § 3D1.2(d) would require grouping of multiple counts, all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction.... U.S.S.G. § lB1.3(a) (Jan. 15, 1988). Because Schaper’s offenses do require grouping, see supra, Section lB1.3(a)(2) provides the relevant standard. See United States v. Won Tae Kim, 896 F.2d 678, 682 (2d Cir.1990) (discussing “relevant conduct” guideline). Accordingly, acts that are part of a “common scheme or plan” are relevant to determination of Schaper’s base offense level. In sentencing Schaper, Judge Haight declined to consider amounts of narcotics that were not charged in Schaper’s indictment. The Sentencing Guidelines clearly provide, however, that a sentencing court must consider a defendant’s involvement with quantities of narcotics not charged in the count(s) of conviction when such conduct was undertaken in the same course of conduct as the offense of conviction. See U.S.S.G. § 1B1.3(a)(2) (Jan. 15,1988). The commentary to the Guidelines explicitly indicates that “in a drug distribution case, quantities and types of drugs not specified in the count of conviction are to be included in determining the offense level if they were part of the same course of conduct or part of a common scheme or plan as the count of conviction.” Id. at comment (background); see also U.S.S.G. § 2D1.1, commentary (n. 11) (Jan. 15, 1988) (“Types and quantities of drugs not specified in the count of conviction may be considered in determining the offense level.”) (citing U.S. S.G. § 1B1.3(a)(2)). On the basis of these Guidelines provisions, we have held that the base offense level is to be calculated after taking into account the entire quantity involved in the defendant’s demonstrated narcotics activity rather than a smaller amount for which the defendant has been charged and convicted. See United States v. Bedoya, 878 F.2d 73, 75 (2d Cir.1989); United States v. Fernandez, 877 F.2d 1138," }, { "docid": "23071475", "title": "", "text": "894 F.2d 665, 668 n. 2 (4th Cir.1990). See also United States v. Kings, 981 F.2d 790, 794 n. 6 (5th Cir.), cert. denied, — U.S. -, 113 S.Ct. 2450, 124 L.Ed.2d 666 (1993). Further, an advisory by the United States Sentencing Commission provides: Relevant conduct for offenses subject to the guidelines is to be determined without regard to the November 1 implementation date. If the relevant conduct for an offense committed on or after November 1, 1987, overlaps with conduct sanctioned as part of a pre-November 1 count, there would be a potential for double counting unless the pre-guideline counts were sentenced concurrently. The court will have to carefully fashion the sentence with these concerns in mind. Kings, 981 F.2d at 795 n. 9 (citing United States Sentencing Commission, Questions Most Frequently Asked About the Sentencing Guidelines S-A (5th ed. March 1992) (provided in response to question 13: “If an indictment includes separate counts under pre-guidelines law and post-guidelines law, how should the defendant be sentenced?”)). Thus, it is clear that a court may consider conduct which occurred pre-Guidelines as relevant. The commentary to the Guidelines provides that “in a drug distribution case, quantities and types of drugs not specified in the count of conviction are to be included in determining the offense level if they were part of the same course of conduct or part of a common scheme or plan as the count of conviction.” U.S.S.G. § 1B1.3, comment, (backg’d). Clearly, “a sentencing court may look beyond the charges alleged in the indictment,” United States v. Underwood, 982 F.2d 426, 429 (10th Cir.1992), cert. denied, - U.S. -, 113 S.Ct. 3043, 125 L.Ed.2d 729 (1993) (quoting United States v. Abreu, 962 F.2d 1425, 1437 (10th Cir.1992), cert. granted and judgment vacated, — U.S. -, 113 S.Ct. 2405, 124 L.Ed.2d 630 (1993)), and may consider quantities of drugs not alleged in calculating a defendant’s base offense level, provided the drugs were part of the same course of conduct or common scheme or plan as the offense of conviction. A defendant need not have been convicted of trafficking the" }, { "docid": "17471922", "title": "", "text": "level, the sentencing court may consider quantities of drugs not specified in the count of conviction. See, e.g., Sarasti, 869 F.2d at 806 (“The guidelines make plain that the district court is not bound by the quantity of drugs mentioned by the indictment.”); United States v. Taplette, 872 F.2d 101, 106 (5th Cir.), cert. denied, — U.S. -, 110 S.Ct. 128, 107 L.Ed.2d 88 (1989) (“The January 15, 1988 revisions ... indeed make clear now that the guidelines allow the consideration of relevant conduct for which the defendant was not convicted in determining the actual guideline range.”); United States v. Juarez-Ortega, 866 F.2d 747, 748 (5th Cir.1989) (at sentencing, “the court may properly consider past crimes including those for which a defendant has been indicted but not convicted, as well as the factual basis of dismissed counts.”); United States v. Byrd, 898 F.2d 450, 452 (5th Cir.1990) (“The guidelines make clear that in drug distribution cases quantities of drugs not specified in the count of conviction are to be included in determining the base offense level if they were part of the same course of conduct or part of a common scheme or plan as the count of conviction.”). Thus, if we confronted a case in which the defendant had pleaded guilty to one of several substantive drug trafficking counts, there is no doubt that — assuming that the evidence presented satisfied the requisite criteria of reliability — prior case law would require us to uphold an offense level finding based not only on the quantity of drugs specified in the count of conviction but also on other quantities of drugs that were part of the same plan or scheme. The instant case, however, presents a variation on this theme. The sentencing court included not only the quantities of cocaine directly linked to Ponce in its calculation of his base offense level, but also— as noted supra — those quantities of cocaine attributed to transactions involving his alleged co-conspirators. At the sentencing hearing (and earlier), Ponce objected to such calculation. He argued that he was not part of a criminal" }, { "docid": "15131277", "title": "", "text": "440 grams. The district court, however, declined to accept the stipulation, believing it to be inaccurate in that it did not include the IV2 pounds of amphetamine found on Hansen’s person at his November 6 arrest or the 350 milliliters of the drug discovered during the November 7 search of the Van Zandt laboratory. Accordingly, the court based its calculation of Woods’s sentence upon a significantly larger amount of drugs. Woods now challenges, on several theories, both the district court’s decision to disregard the stipulation and the probation officer’s role in investigating his crime. II. Woods first maintains that since the district court accepted the plea agreement, it also was bound to accept the parties’ stipulation as to the amount of drugs involved. This argument, however, is refuted by the plain language of the Sentencing Guidelines and for that reason has been rejected by this and other circuits. Section 6B1.4(d) of the Guidelines states that “[t]he Court is not bound by the stipulation, but may with the aid of the presentence report, determine the facts relevant to sentencing.” Interpreting that section, we held in United States v. Garcia, 902 F.2d 324, 326-27 (5th Cir.1990), that the district court was entitled to base a defendant’s sentence upon a significantly larger amount of drugs than that charged in the indictment and stipulated by the parties at the time of the guilty plea. In a related vein, Woods contends that evidence regarding the drugs seized in Hansen’s first arrest and in the search of the Van Zandt laboratory was “extrinsic”- and therefore should not have been considered in setting his base offense level. However, we have held that in setting the sentence, a judge may consider conduct for which a defendant has not been convicted. United States v. Taplette, 872 F.2d 101, 106 (5th Cir.), cert. denied, — U.S, -, 110 S.Ct. 128, 107 L.Ed.2d 88 (1989). See also United States v. Isom, 886 F.2d 736, 738 (4th Cir.1989) (district court could consider offense of which defendant had been acquitted in determining his sentence). Guidelines § IB 1.3(a)(1) directs the sentencing judge to" }, { "docid": "20892540", "title": "", "text": "at 1090. Therefore, the § 2D1.1(b)(1) enhancement for possession of a firearm during the drug conspiracy was proper. Defendant next contends that the district court erred in enhancing his sentence based on quantities of drugs not alleged in the indictment. Defendant relies on United States v. Crockett, 812 F.2d 626 (10th Cir.1987), to support his claim that the quantity of drugs involved in the offense must be alleged in the indictment to be considered at sentencing. Accord United States v. Jenkins, 866 F.2d 331, 334 (10th Cir.1989); United States v. Brandon, 847 F.2d 625, 631 (10th Cir.), cert. denied, 488 U.S. 973, 109 S.Ct. 510, 102 L.Ed.2d 545 (1988). However, Crockett and its progeny are pre-guidelines cases which we have held are “inapposite to post-guideline cases.” United States v. McCann, 940 F.2d 1352, 1358 (10th Cir.1991) (citing United States v. Ware, 897 F.2d 1538, 1542-43 (10th Cir.), cert. denied, 496 U.S. 930, 110 S.Ct. 2629, 110 L.Ed.2d 649 (1990)). See also United States v. Morehead, 959 F.2d 1489, 1510-11 (10th Cir.1992). The sentencing guidelines clearly provide that all relevant conduct should be taken into account at sentencing, U.S.S.G. § 1B1.3, and we have held that drug quantities which were part of the sa- .e course of conduct or common scheme plan as the offense of conviction be included in the BOL calculation. United States v. Rutter, 897 F.2d 1558, 1562 (10th Cir.), cert. denied, 498 U.S. 829, 111 S.Ct. 88, 112 L.Ed.2d 60 (1990). Thus, quantities of drugs associated with offenses for which the defendant is not convicted are properly considered in calculating the BOL. Id. See also United States v. Ross, 920 F.2d 1530, 1538 (10th Cir.1990). Moreover, in determining the quantity of drugs that were part of the same course of conduct or common scheme or plan as the offense of conviction, “a sentencing court may look beyond the charges alleged in the indictment____” United States v. Abreu, 962 F.2d 1425, 1437 (10th Cir.1992). See also United States v. Harris, 903 F.2d 770, 778 (10th Cir.1990); Ware, 897 F.2d at 1542. Thus, we find no error in the" }, { "docid": "21565782", "title": "", "text": "sentencing. As such, I respectfully dissent from Part II of the opinion. Pursuant to the plea agreement, McDowell pled guilty to one count of conspiracy to maintain a crack house and the government dismissed the count for possession of crack within 1,000 feet of a school with intent to distribute. However, the district court upwardly departed from the base offense level to sentence McDowell as if he were convicted of both counts of the indictment. Since possession within 1,000 feet of a school with intent to distribute contains a penalty much higher than that of maintaining a crack house, the district court approximately doubled McDowell’s sentence. This court correctly notes that “the primary error [of the district court] was that it considered an upward departure when it should have considered the conduct in calculating the defendant’s base offense level.” Under section 1B1.3 of the Sentencing Guidelines, in determining the applicable guideline range, the district court may consider “relevant conduct,” which includes “all acts and omissions committed or aided and abetted by the defendant ... that occurred during the commission of the offense of conviction.” On this basis, the court holds that McDowell’s maintaining a crack house within 1,000 feet of a school is relevant conduct that the district court could have properly considered in calculating the base offense level. The Guidelines explicitly permit the district court to consider dropped counts of a plea agreement in cases where the quantities of drugs are added up for the purpose of calculating the offense level. The Commentary to section 1B1.3 of the Guidelines states that: [I]n a drug distribution case, quantities and types of drugs not specified in the count of conviction are nonetheless included in determining the offense level if they are part of the same course of conduct or part of a common scheme or plan as the count of conviction. In United States v. Smith, 887 F.2d 104 (6th Cir.1989), this court held that it is proper to add up quantities of drugs from dropped counts because it was part of the same common scheme or plan as the offense" }, { "docid": "23165721", "title": "", "text": "who is convicted of distributing the equivalent of 3000 kg of marijuana, if the sentencing judge determines that he also distributed an additional 2,700 kg of marijuana.”); U.S.S.G. § 1B1.3 cmt. n. 3 (providing an example where three separate drug sales are counted for purposes of the base offense level even though not all are charged). Moreover, the Guidelines directly address the use of conduct that might fall outside the scope of a plea agreement. Guideline § 6B 1.2(a) states that “a plea agreement that includes the dismissal of a charge ... shall not preclude the conduct underlying such charge from being considered under the provisions of § 1B1.3 (Relevant Conduct) in connection with the count(s) of which the defendant is convicted.” See also U.S.S.G. § 6B1.2 (Policy Statement) cmt. (“This paragraph prevents a plea agreement from restricting consideration of conduct that is within the scope of § 1B1.3 ... in respect to the count(s) of which the defendant is convicted[.]”). Under this guideline, the fact that the parties agreed to dismiss the two counts involving 28 grams of crack cocaine does not affect the district court’s responsibility to calculate Grissom’s base offense level by taking into account those amounts. Further, courts have held that provisions of the Guidelines that use compulsory language require the district court to consider drug amounts from acts outside the offense of the conviction, so long as they “were part of the same course of conduct or common scheme or plan as the offense of conviction[.]” U.S.S.G. § 1B1.3(a)(2). See, e.g., United States v. Gordon, 291 F.3d 181, 190 (2d Cir.2002) (holding that the district court must consider conduct when it satisfies the requirements for grouping under U.S.S.G. §§ 3D1.1-2); United States v. Kemmish, 120 F.3d 937, 940 (9th Cir.1997) (same); United States v. Register, 931 F.2d 308, 313 (5th Cir.1991) (using mandatory language to describe § 1B1.3(a)(2)). We are not unmindful of the fact that “[t]he relevant conduct ‘aggregation’ rule ... is a powerful prosecutorial tool[,]” in that “[t]he offense level for a relatively minor drug crime may be dramatically increased when uncharged drug" }, { "docid": "2492166", "title": "", "text": "level using the full amount of heroin distributed by the conspiracy. The Fifth Circuit and most other circuits that have considered the issue have concluded that a judge is not limited in imposing sentence to consideration only of charges of which a defendant has been convicted. The judge may also take into account charges dropped as part of a plea agreement, uncharged conduct, and conduct of which the defendant has been acquitted. United States v. Garcia, 889 F.2d 1454, 1456-57 (5th Cir.1989) (district court not bound by specific quantity of drugs mentioned in indictment; district court could properly include quantity of drugs that defendant represented he could deliver); Warters, 885 F.2d at 1273 (district court not limited by quantity of drugs mentioned in charging instrument); United States v. Taplette, 872 F.2d 101, 106 (5th Cir.) (Guidelines allow consideration of relevant conduct for which defendant was not convicted), cert. denied, — U.S. -, 110 S.Ct. 128, 107 L.Ed.2d 88 (1989); United States v. Sarasti, 869 F.2d 805, 806 (5th Cir.1989) (district court not bound by quantity of drugs mentioned in indictment); United States v. Blanco, 888 F.2d 907, 909-911 (1st Cir.1989) (sentencing court not limited to amount of drugs charged in count to which defendant pleaded guilty); United States v. Fernandez, 877 F.2d 1138, 1141-42 (2d Cir.1989) (trial court properly calculated defendant’s sentence based upon full quantity of cocaine seized rather than smaller amount defendant admitted upon guilty plea); United States v. Isom, 886 F.2d 736, 738-39 (4th Cir.1989) (sentencing judge could properly consider offense of which jury acquitted defendant); United States v. Ykema, 887 F.2d 697, 700 (6th Cir.1989) (sentencing court not limited by plea agreement), cert. denied, — U.S. -, 110 S.Ct. 878, 107 L.Ed.2d 961 (1990); United States v. White, 888 F.2d 490, 499 (7th Cir.1989) (“[t]he Guidelines treat success and failure, conviction and no conviction, alike in drug eases, so long as the amounts are ascertainable”); United States v. Scroggins, 880 F.2d 1204, 1214 (11th Cir.1989) (“under guideline sentencing, counsel cannot bind the sentencing discretion of the district judge or cloak the facts to reach a result" }, { "docid": "16910730", "title": "", "text": "properly considered quantities associated with not only the offense of conviction, but also those quantities which facilitated the commercial relationship between the defendant as drug dealer and the DEA agent as drug purchaser.... We agree with those circuits which have indicated that Guidelines §§ 1B1.3(a)(2) and 3D1.2(d) require aggregation of quantities from drug offenses encompassed by § 2D1.1 ‘that were part of the same course of conduct or common scheme or plan as the offense of conviction,' regardless of whether the defendant was convicted of the underlying offenses pertaining to the additional amounts. See also, United States v. Ross, 920 F.2d 1530, 1538 (10th Cir.1990); United States v. Boyd, 901 F.2d 842, 844 (10th Cir.1990). We must hold that the court erred in finding that the stipulation precluded the court from considering the chemicals found in McCann’s home in arriving at an appropriate sentence; indeed, the court was required to consider the chemicals. B. Our discussion of the stipulation cannot end here. As set forth, supra, following the stipulation that the government was not charging a specific quantity of drugs in Count IV, the parties and the district court, relying on United States v. Crockett, supra, proceeded under the belief that the mandatory minimum sentence under Count IY was eliminated from the court’s consideration. Thereafter, McCann pled guilty to Count IV with the understanding that he would not be subject to a mandatory minimum sentence. This understanding was erroneous. As Rutter, supra, makes clear, the sentencing guidelines require the district court to consider all relevant chemicals in sentencing, not just those chemicals charged in the indictment. Thus, the imposition of a mandatory minimum sentence under the guidelines cannot be eliminated from the court’s consideration simply because a specific amount of drugs was not alleged in the indictment. Accordingly, we hold that the contrary holding in Crockett, a pre-guideline case, is inapposite to post-guideline cases. See, e.g., United States v. Ware, 897 F.2d 1538, 1542-43 (10th Cir.), cert. denied, — U.S. -, 110 S.Ct. 2629, 110 L.Ed.2d 649 (1990). Given this holding, we conclude that McCann was subject to the mandatory" }, { "docid": "23643703", "title": "", "text": "had been delivered to Mexico by Ms. Freison at the behest of Mr. Wall.... Insofar as the time is concerned, Mr. Freison [sic] did plead guilty to a 1992 offense.... By the same taken [sic], he’s charged with other offenses in there. And in looking at the big picture, I don’t think the statute of limitations governs this deal at all. The Fifth Circuit has held that relevant conduct is not guided by or controlled by the statute of limitations. I find that the correct total offense level in this case is a 21, a criminal history category of one. Based on a total offense level of twenty-one and a criminal history category of I, the district court sentenced Wall to forty-six months of imprisonment and three years of supervised release, and also imposed a $100 special assessment. Wall filed his timely notice of appeal on August 11, 1998. II. STANDARD OF REVIEW We review a district court’s interpretation of the guidelines de novo, and its factual findings for clear error. See United States v. Peterson, 101 F.3d 375, 384 (5th Cir.1996); United States v. Carreon, 11 F.3d 1225, 1230 (5th Cir.1994). A district court’s determination of what constitutes relevant conduct for purposes of sentencing is reviewed for clear error. See Peterson, 101 F.3d at 384; United States v. Bryant, 991 F.2d 171, 177 (5th Cir.1993). III. DISCUSSION A defendant convicted of a drug offense is sentenced based on the amount of drugs involved in the offense. See U.S. Sentencing Guidelines Manual § 2D 1.1 (1998). The guidelines provide that in calculating the offense level the district court may consider other offenses in addition to the acts underlying the offense of conviction so long as those offenses constitute relevant conduct as defined in the guidelines. See id. § 1B1.3. As we have recognized, “the base offense level can reflect quantities of drugs not specified in the count of conviction if they were part of the same course of conduct or part of a common scheme or plan as the count of conviction.” United States v. Moore, 927 F.2d 825, 827" }, { "docid": "23345781", "title": "", "text": "We find that the district court clearly erred when it concluded that Ripoll’s allegations concerning the additional 100 kilograms of cocaine constituted relevant conduct. We review a district court’s calculation of the quantity of drugs involved in an offense for clear error. United States v. Bacallao, 149 F.3d 717, 719 (7th Cir.1998). A finding of fact is clearly erroneous when “although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. McEntire, 153 F.3d 424, 431 (7th Cir.1998) (quoting United States v. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). In calculating a defendant’s base offense level under the now-advisory Sentencing Guidelines, “the sentencing court must consider types and quantities of drugs not specified in the counts of conviction but that were ‘part of the same course of conduct or common scheme or plan’ as the convicted offenses.” United States v. Beler, 20 F.3d 1428, 1431 (7th Cir.1994) (citations omitted) (quoting U.S.S.G. § lB1.3(a)(2)). In United States v. Duarte, we noted that this “relevant conduct” or “aggregation rule” “grants the government a fearsome tool in drug cases. It permits prosecutors to ‘indict defendants on relatively minor offenses and then seek enhanced sentences later by asserting that the defendant has committed other more serious crimes for which, for whatever reason, the defendant was not prosecuted and has not been convicted.’ ” 950 F.2d 1255, 1263 (7th Cir.1991). However, the relevant conduct rule has limits. The rule allows sentencing courts to consider quantities of drugs not specified in the counts of conviction, provided “the un-convicted activities bore the necessary relation to the convicted offense.” Id. Two or more offenses are part of a common scheme or plan if they are connected by at least one common factor, such as “common victims, common accomplices, common purpose, or similar modus operandi.” U.S.S.G. § lB1.3(a)(2), App. Note 9. In assessing whether offenses are part of the same course of conduct, we look to whether there is “a strong relationship between" }, { "docid": "19897656", "title": "", "text": "Perez has made no attempt to make such a showing either before the district court or on appeal. The district court’s refusal to apply the exclusionary rule to evidence that was suppressed in another court against a different defendant was not clear error based on the lack of any evidence to support Perez’ bare assertion of misconduct. Perez next alleges that the drugs seized from his home should not be included as relevant conduct because they were not charged in the indictment and he did not admit to them during his plea hearing. Under § lB1.3(a)(2) of the Sentencing Guidelines, all acts and omissions that were “part of the same course of conduct or common scheme or plan as the offense of conviction” are be considered “relevant conduct” for sentencing purposes and such conduct is factored into the Guideline sentencing calculations as if the defendant had been convicted of that conduct. See United States v. White, 519 F.3d 342, 347 (7th Cir.2008); United States v. Wilson, 502 F.3d 718, 721-22 (7th Cir.2007) (uncharged drug quantities can be used to enhance a defendant’s sentence). Recognizing that uncharged drug quantities can add months or years to a defendant’s advisory guidelines range, the evidence relied upon by the district court at sentencing to increase a defendant’s sentence must bear a “sufficient indicia of reliability.” Id.; see also United States v. Ortiz, 431 F.3d 1035, 1041 (7th Cir.2005) (vacating sentence because relevant drug conduct not sufficiently related). In assessing whether there is a strong relationship between the unconvicted conduct and the convicted offense, the government must demonstrate that the conduct is connected by at least one common factor such as “common victims, common accomplices, common purpose, or similar modus operandi.” United States v. Bacallao, 149 F.3d 717, 719 (7th Cir.1998) (quoting U.S.S.G. § lB1.3(a)(2), cmt. n. 9(A)). Because the clear error standard also governs this inquiry, we begin with the district court’s specific findings regarding whether the drugs seized from Perez’s home were part of the same course of conduct or common scheme as the drugs seized from Perez’s vehicle. See United States v." }, { "docid": "12647233", "title": "", "text": "of conduct as the offense of conviction. See U.S.S.G. § 1B1.3(a)(2) (Jan. 15,1988). The commentary to the Guidelines explicitly indicates that “in a drug distribution case, quantities and types of drugs not specified in the count of conviction are to be included in determining the offense level if they were part of the same course of conduct or part of a common scheme or plan as the count of conviction.” Id. at comment (background); see also U.S.S.G. § 2D1.1, commentary (n. 11) (Jan. 15, 1988) (“Types and quantities of drugs not specified in the count of conviction may be considered in determining the offense level.”) (citing U.S. S.G. § 1B1.3(a)(2)). On the basis of these Guidelines provisions, we have held that the base offense level is to be calculated after taking into account the entire quantity involved in the defendant’s demonstrated narcotics activity rather than a smaller amount for which the defendant has been charged and convicted. See United States v. Bedoya, 878 F.2d 73, 75 (2d Cir.1989); United States v. Fernandez, 877 F.2d 1138, 1141-42 (2d Cir.1989); United States v. Guerrero, 863 F.2d at 250; see also United States v. Alston, 895 F.2d 1362, 1371 (11th Cir.1990) (holding that quantities of drugs not included in count of conviction are properly included in sentencing calculations and noting that in so holding the Eleventh Circuit “join[s] six out of seven circuits that have addressed this question”). Accordingly, the fact that the additional amounts of cocaine that Schaper traded were not charged in the indictment is not dispositive. If such additional amounts of cocaine were part of a scheme or plan common with the counts of Seha-per’s conviction, they are relevant conduct under either Judge Haight’s narrow view of the indictment or the government’s more expansive view of the charge in the case. Judge Haight noted that the cases cited above involved amounts of drugs that were actually seized from defendants even if they were not charged in the indictment. See Bedoya, 878 F.2d at 74-75 (total of 21 kilograms of cocaine seized from defendant and eoconspirator); Fernandez, 877 F.2d at 1139" }, { "docid": "23643704", "title": "", "text": "Peterson, 101 F.3d 375, 384 (5th Cir.1996); United States v. Carreon, 11 F.3d 1225, 1230 (5th Cir.1994). A district court’s determination of what constitutes relevant conduct for purposes of sentencing is reviewed for clear error. See Peterson, 101 F.3d at 384; United States v. Bryant, 991 F.2d 171, 177 (5th Cir.1993). III. DISCUSSION A defendant convicted of a drug offense is sentenced based on the amount of drugs involved in the offense. See U.S. Sentencing Guidelines Manual § 2D 1.1 (1998). The guidelines provide that in calculating the offense level the district court may consider other offenses in addition to the acts underlying the offense of conviction so long as those offenses constitute relevant conduct as defined in the guidelines. See id. § 1B1.3. As we have recognized, “the base offense level can reflect quantities of drugs not specified in the count of conviction if they were part of the same course of conduct or part of a common scheme or plan as the count of conviction.” United States v. Moore, 927 F.2d 825, 827 (5th Cir.1991) (internal quotation marks omitted). The defendant need not have been convicted of the other offenses before they may be considered relevant conduct. See id. The guidelines define “relevant conduct” to include “all acts and omissions ... that were part of the same course of conduct or common scheme or plan as the offense of conviction.” U.S. Sentencing Guidelines Manual § 1B1.3(a)(2). “Common scheme or plan” is defined as two or more offenses that are “substantially connected to each other by at least one common factor, such as common victims, common accomplices, common purpose, or similar modus operandi” Id. § 1B1.3 application note 9(A). “Same course of conduct” is defined as follows: “Offenses that do not qualify as part of a common scheme or plan may nonetheless qualify as part of the same course of conduct if they are sufficiently connected or related to each other as to warrant the conclusion that they are part of a single episode, spree, or ongoing series of offenses.” Id. § 1B1.3 application note 9(B). Factors to consider" }, { "docid": "23165720", "title": "", "text": "Notes to this guideline states that “the quantities of drugs are to be added.” U.S.S.G. § 2D1.1 cmt. n. 6. Various portions of the Guidelines make clear the fact that these quantities are to be added even if they are not part of the offense of conviction. First, the conduct determining the offense level is not limited to the conduct underlying the conviction, but can include “all relevant conduct under § 1B1.8 (Relevant Conduct)....” U.S.S.G. § 1B1.1 cmt. n. 1(H). Such relevant conduct applies to crimes where “the offense level is determined largely on the basis of ... the quantity of a substance involved,” U.S.S.G. § 3D1.2(d), and includes “all acts and omissions ... that were part of the same course of conduct or common scheme or plan as the offense of convictionf.]” U.S.S.G. § lB1.3(a)(2). See also United States v. Scheele, 231 F.3d 492, 497 (9th Cir.2000) (“[A] defendant who pleads guilty or is convicted of distributing the equivalent of 300 kg of marijuana will receive the same base offense level as a defendant who is convicted of distributing the equivalent of 3000 kg of marijuana, if the sentencing judge determines that he also distributed an additional 2,700 kg of marijuana.”); U.S.S.G. § 1B1.3 cmt. n. 3 (providing an example where three separate drug sales are counted for purposes of the base offense level even though not all are charged). Moreover, the Guidelines directly address the use of conduct that might fall outside the scope of a plea agreement. Guideline § 6B 1.2(a) states that “a plea agreement that includes the dismissal of a charge ... shall not preclude the conduct underlying such charge from being considered under the provisions of § 1B1.3 (Relevant Conduct) in connection with the count(s) of which the defendant is convicted.” See also U.S.S.G. § 6B1.2 (Policy Statement) cmt. (“This paragraph prevents a plea agreement from restricting consideration of conduct that is within the scope of § 1B1.3 ... in respect to the count(s) of which the defendant is convicted[.]”). Under this guideline, the fact that the parties agreed to dismiss the two counts" }, { "docid": "23236465", "title": "", "text": "the total quantity of cocaine involved in the “same course of conduct or common scheme or plan as the offense of conviction” under Sentencing Guidelines § 1B1.3(a)(2). In so doing, we join six out of seven circuits that have addressed this question. See United States v. Blanco, 888 F.2d 907 (1st Cir.1989); United States v. White, 888 F.2d 490 (7th Cir.1989); United States v. Fernandez, 877 F.2d 1138 (2d Cir.1989); United States v. Mann, 877 F.2d 688 (8th Cir.1989); United States v. Sailes, 872 F.2d 735 (6th Cir.1989); United States v. Sarasti, 869 F.2d 805 (5th Cir.1989). Cf., United States v. Scroggins, 880 F.2d 1204 (11th Cir.1989) (upholding district court’s consideration of 18 postal thefts to which defendant did not plead guilty and for which government agreed to drop charges, as conduct relevant in calculating a sentence). But see United States v. Restrego, 883 F.2d 781 (9th Cir.1989) (forbidding sentencing consideration of drug amounts not reflected in the offense of conviction). The facts at issue in the Blanco decision are almost identical to those involved in this case. Mr. Blanco pled guilty to possessing with intent to distribute 125 grams of cocaine. The government recommended dismissal of other counts which charged Blanco with conspiring to distribute a larger amount of cocaine during the same time period he possessed with intent to distribute the 125 grams of cocaine. Just as appellant Brennon asserts in this case, Mr. Blanco argued that the Guidelines do not permit a sentencing judge to take into account conduct not covered by the counts of conviction. The Blanco court analyzed the question as follows: [Defendant Blanco] notes that the additional drugs in question here were not covered by Counts I, II and III, to which he pled guilty, but, rather, they were the subject of other counts of the indictment (Counts IV, V, and VI), which the Government dropped. The Guidelines, however, specifically instruct the court to take conduct of this sort into account when the crime at issue concerns drugs. They say that: (i) [T]he base offense level where the guideline specifies more than one base" }, { "docid": "23122027", "title": "", "text": "States v. Wood, 834 F.2d 1382, 1388-90 (8th Cir.1987). Quantity, which is not an element of the offense under section 841(b)(1)(A), is an issue for the sentencing judge. Id. Thus, for the purpose of establishing the mandatory minimum sentence and the base offense level under the Guidelines, the government bears the burden of proving drug quantity by a preponderance of the evidence. E.g., United States v. Prescott, 920 F.2d 139, 144 (2d Cir.1990); United States v. Goff, 907 F.2d 1441, 1444 (4th Cir.1990); United States v. Reid, 911 F.2d 1456, 1462 (10th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 990, 112 L.Ed.2d 1074 (1991); see also United States v. Streeter, 907 F.2d 781, 792 (8th Cir.1990) (government must prove contested factual allegations in the PSR by a preponderance of the evidence). In order to determine the appropriate offense level, the district court must consider “all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction.” U.S.S.G. § 1B1.3(a)(2); see also United States v. Lawrence, 915 F.2d 402, 406 (8th Cir.1990) (same). Drug quantities not specified in the count of conviction may be considered by the sentencing court in determining the offense level if they are part of the same course of conduct or scheme as the count of conviction. U.S.S.G. § 2D1.1, comment, (n.12) (citing U.S.S.G. § 1B1.3(a)(2)); see also Lawrence, 915 F.2d at 406 (same); Streeter, 907 F.2d at 791 (same). When, as here, there is no drug seizure, it is difficult for courts to determine the amount of cocaine properly attributed to each defendant in the conspiracy. Walton, 908 F.2d at 1301. The Guidelines provide: Where there is no drug seizure or the amount seized does not reflect the scale of the offense, the sentencing judge shall approximate the quantity of the controlled substance. In making this determination, the judge may consider, for example, the price generally obtained for the controlled substance, financial or other records, similar transactions in controlled substances by the defendant, and the size or capability of any laboratory involved. U.S.S.G." } ]

[ { "docid": "13527102", "title": "", "text": "on causation; whether any negligence on the part of the county rose to the stature of a “constitutional tort”; whether Mrs. Dollar assumed the risk of injury as a matter of law; whether, as a matter of law, the deaths resulted from an act of God; whether Georgia tort law provided an adequate remedy for the alleged negligence so as to preclude recovery under section 1983; whether mistrial was mandated by allegedly improper arguments made by plaintiffs’ counsel. Because we hold that the actions of the county did not result in deprivation of the Dollars’ constitutional rights, we need not reach the remaining issues. In order to sustain a cause of action based on 42 U.S.C. § 1983, a plaintiff must make a prima facie showing of two ele ments: (1) that the act or omission deprived plaintiff of a right, privilege or immunity secured by the Constitution or laws of the United States, and (2) that the act or omission was done by a person acting under color of law. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981); Morrison v. Washington County, 700 F.2d 678, 682 (11th Cir.1983). Counsel for Haralson County conceded at oral argument that there was “no real question” in this case about the second element. County Commissioner Smith clearly was acting under authority of state law when he decided against building the bridge. Smith was the sole commissioner of the county and, as counsel put it, Smith “is, basically, the county governing body.” The issue for us is whether the conduct complained of deprived persons of constitutional or statutory rights. Section 1983 is not self-executing, in that the statute itself creates no substantive rights. McKinnis v. Mosely, 693 F.2d 1054, 1057-58 (11th Cir.1982). Section 1983 provides only that deprivations of “rights, privileges or immunities secured by the Constitution and the laws” give rise to private causes of action. The Dollars contend that the county violated the fourteenth amendment’s protection against deprivation of life without due process of law. Although the right to life is obviously an interest of" } ]

[ { "docid": "10095369", "title": "", "text": "CUMMINGS, Circuit Judge. Plaintiff Rawleigh C. Wilson filed a pro se complaint pursuant to 42 U.S.C. § 1983 against the Town of Clayton, Indiana and its Trustees, the County of Hendricks and its Commissioners, two town marshals, two deputy sheriffs and the bonding company which indemnified the marshals and sheriffs. The meager complaint, attached hereto as an Appendix, alleges that actions by the defendants “violate[d] the plaintiff’s civil rights under the United States Constitution.” The district court construed the plaintiff’s complaint as stating only a procedural due process claim. Then, relying on Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), and Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), the court dismissed the claim against all seven catego ries of defendants, in their official and personal capacities, on the ground that the Indiana Tort Claims Act (“ITCA”) provides an adequate post-deprivation state remedy. On appeal, Wilson, now represented by appointed counsel, argues that the district court erred by narrowly construing his pro se complaint as nothing more than a procedural due process claim instead of reading it broadly to allege substantive constitutional violations that state a claim under the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. As to the procedural due process claims, Wilson makes two arguments. First, he asserts that Parratt is inapposite because the alleged deprivations were the result of official policy. Second, even if Parratt applies, Wilson argues that the ITCA is a procedural bar to cases against state officials and state units and thus is not the kind of adequate post-deprivation remedy required by Parratt. We agree with the district court’s narrow characterization of the complaint as one of procedural due process, but reluctantly disagree with the court’s analyses of these claims. We affirm in part, reverse in part and remand for further proceedings because Parratt does not apply to deprivations of property allegedly not due to random and unauthorized acts. I Wilson’s pro se complaint makes the following allegations. He owned a business, the Poverty Shop, in Clayton, Indiana. On the" }, { "docid": "7795679", "title": "", "text": "and beverage were destroyed during the search of the house. In conjunction with their execution of the Warrant the officers arrested 63 persons, including plaintiffs, on gambling charges. Each plaintiff was charged with (1) distribution of alcoholic liquor without a license, (2) keeping a gambling place and (3) maintaining a public nuisance. In addition McCrimmon was charged with unlawful possession of a motor vehicle. Plaintiffs— then defendants — moved in Kane County Circuit Court for a dismissal of all charges against them. That motion was granted and the property seized pursuant to the Warrant returned to plaintiffs (excluding presumably such contraband items as containers of suspected marijuana and cocaine). But the $1,000 cash, diamond earrings and motorcycle were not returned. Nearly one year to the day after they filed their original complaint in this action, plaintiffs filed a four-count First Amended Complaint (the “Complaint”), which is the focus of the present motion. Count I charges County, Kramer, Ramsey and Deputies with violations of plaintiffs’ rights under the Fourteenth Amendment’s Due Process and Equal Protection Clauses in connection with the execution of the Warrant. Count II charges the same defendants with constitutional violations in the arrest of, and filing of charges against, plaintiffs. Count III claims a conspiracy on the part of the same defendants to prosecute charges against plaintiffs as alleged in Count II. Count IV asserts Fourteenth Amendment violations by Johnson, Barsanti, Morrow and Office in the execution of the Warrant. Count I Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981) states the operative considerations here: Accordingly, in any § 1983 action the initial inquiry must focus on whether the two essential elements to a § 1983 action are present: (1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States. Defendants do not deny they acted under color of state law in searching plaintiffs’ house. Rather they contend plaintiffs have failed to" }, { "docid": "16332623", "title": "", "text": "that this Court should abstain from issuing an injunction under the doctrine set forth in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), because the plaintiffs are subjects of a pending criminal investigation. Defendants also argue that the Eleventh Amendment prohibits the plaintiffs’ claim for money damages against the State Police defendants in their official capacities, and that the State Police defendants are entitled to qualified immunity in their individual capacities from an award of money damages. Further, defendants argue that the plaintiffs’ due process claim regarding the seizure of property is barred under Parratt v. Taylor, 451 U.S. 527, 541-55, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), because adequate post-deprivation state law remedies exist. To the extent the plaintiffs have raised a substantive due process claim in alleging that the State Police defendants abused their power in executing the search warrant, defendants argue that the claim is barred because the Fourth Amendment provides an explicit textual source for the constitutional protection against unreasonable searches and seizures. In opposition, the plaintiffs clarified that their claims against the State Police defendants are grounded in two operative facts: the seizure of the safes from the CPC offices, which plaintiffs contend exceeded the scope of the search warrant in violation of the Fourth Amendment, and the failure to return plaintiffs’ property subsequent to its seizure, which plaintiffs contend violates their Fourteenth Amendment due process rights. The Court concludes that the facts alleged by the plaintiffs fail to state a cognizable federal constitutional claim, and therefore dismisses all federal claims against the Connecticut State Police defendants. The Court declines to exercise supplemental jurisdiction over any remaining state claims against them. Because the Court finds that the merits of plaintiffs claims are lacking, it is unnecessary to address the procedural arguments and immunity claims raised by the defendants. See, e.g. Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) (courts should decide the merits of constitutional claim before reaching the issue of qualified immunity). A. Seizure of Safes Plaintiffs allege that the safe was seized" }, { "docid": "10438448", "title": "", "text": "way into the house of a fugitive’s parents, and — while the police officer physically restrained the mother — the bondsman conducted a search using allegedly excessive force. Kenney fails to appreciate that the requirement of reasonableness in apprehending a fugitive applies not only to the manner in which the entry and arrest is carried out, but also to the very act of entry and arrest. Acceptance of Kenney’s argument would allow a bondsman to enter any house and arrest its occupants, without regard to the reasonableness of the bondsman’s belief that his principal is located within, as long as “excessive force” did not accompany the entry and arrest. By definition, the forced entry into a house is unreasonable if the bondsman cannot reasonably believe his principal to be found there. D. Adequate Remedy Under State Law Kenney’s final challenge to the § 1983 claims is that Kansas provides an adequate remedy for plaintiff’s injuries, and that recovery is therefore foreclosed under the holding of Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). In Parratt, which was partially overruled by Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986), the Court held that an adequate remedy in state tort law for a negligent deprivation of property constitutes the due process required by the Fourteenth Amendment. Contrary to Kenney’s assertion, however, Parratt does not make the availability of a constitutional remedy dependent upon the absence of other state remedies. Rather, Parratt merely recognized that in the context of substantive due process violations, the existence of an adequate post-deprivation remedy under state law constitutes the due process required by the federal constitution. That is, no substantive due process violation occurs when state law itself provides a remedy for the deprivation. Par-ratt does not support the proposition that the mere existence of alternate state remedies suspends relief otherwise available under § 1983 for deprivation of a federal right. V. Pendent State Claims Because the court has determined that plaintiff has a viable § 1983 claim against Kenney, the court will exercise pendent jurisdiction over" }, { "docid": "23394196", "title": "", "text": "detained the plaintiff until they could take his dog from him. They then allowed Augustine to return home. On April 22, 1982, the plaintiff filed this civil rights suit against the State of Louisiana, the Lafayette Parish Police Jury, the Lafayette sheriff, and two named unknown deputy sheriffs. The complaint alleges that the plaintiff suffered a “violation of due process, denial of equal protection, denial of life, denial of liberty, deprivation of property, invasion of privacy, [and] infringement of freedom”, and that the plaintiff is therefore entitled to relief under 42 U.S.C.A. §§ 1981-1986 (1981). The complaint seeks compensatory damages, punitive damages, reasonable attorney’s fees, and return of the plaintiff’s dog. During the summer of 1982, the district court dismissed the complaint with respect to the state and the police jury. On November 22, 1982, the court dismissed the complaint with respect to the sheriff and the two deputy sheriffs. The ground for this dismissal was that the complaint failed to state a claim upon which relief can be granted. The plaintiff appeals the dismissal of the sheriff and deputy sheriffs. II. Alleged Constitutional Violations There are two essential elements to any section 1983 action. First, the conduct complained of must have been committed by a person acting under color of state law; and second, this conduct must have deprived the plaintiff of rights, privileges, or immunities secured by the Constitution or laws of the United States. E.g., Parratt v. Taylor, 1981, 451 U.S. 527, 535,101 S.Ct. 1908, 1912, 68 L.Ed.2d 420. The parties do not dispute that the defendants acted under color of state law in committing the actions of which the plaintiff complains. Viewed in the light most favorable to the plaintiff, the complaint asserts two constitutional violations: an unreasonable seizure, in violation of the fourth amendment as incorporated into the fourteenth amendment; and deprivation of liberty and property without due process of law, in violation of the due process clause of the fourteenth amendment. We examine each asserted violation separately. III. The Fourth Amendment The facts alleged in the complaint establish a clear violation of the fourth" }, { "docid": "17480133", "title": "", "text": "the officers were acting “in the service of a legitimate governmental objective,” id. at 1716, here, to apprehend one fleeing the police officers’ legitimate investigation of suspicious behavior. Because such circumstances, requiring a balancing of the need to stop a suspect’s flight from the law against the threat a high-speed chase poses to others, “demand an officer’s instant judgment, even precipitate recklessness fails to [suffice for Due Process liability.]” Id. at 1720. The critical factor in determining whether Fourteenth Amendment liability for a high-speed chase may be imposed is whether the officer’s conduct can be found to shock the conscience, for which the evidence must show intent to harm the suspect physically. See id. (2) In Lewis, the court of appeals had reversed summary judgment for the defendant officer, finding a triable issue of fact because he had “apparently disregarded the Sacramento County Sheriffs Department’s General Order on police pursuits.” Id. at 1712. The Supreme Court reversed, holding that “high-speed chases with no intent to harm suspects physically or to worsen their legal plight do not give rise to liability under the Fourteenth Amendment,” and that “[t]he fault claimed on [the officer’s] part ... fails to meet the shocks-the-conscience test.” Id. at 1720. Lewis thus squarely refutes plaintiffs contention that the officers’ violation of police department regulations, which might be probative of recklessness or conscious disregard of plaintiffs safety, suffices to meet the shocks-the-conscience test under the due process clause. (3) In Lewis, the chase ended when the pursued motorcycle tipped over, throwing Lewis to the pavement where the police car coming to a stop accidentally skidded into him causing his injury. Here, the chase ended when the pursuing police car bumped into the rear of Cook’s car, causing him to lose control of the car, which led to the collision in which plaintiff was injured. Plaintiff argues that the deliberate ramming of Cook’s car by the police vehicle amounted to use of a deadly weapon, which permits the drawing of an inference that the police acted with the intent to cause physical injury. We disagree. Lewis does not permit" }, { "docid": "2863759", "title": "", "text": "fractured skull. He was pronounced dead at the scene. Willard, the motorcycle driver, suffered no major injuries. Plaintiffs Teri and Thomas Lewis, Philip Lewis’s parents, filed suit in Sacramento County Superior Court against Sacramento County, the Sacramento County Sheriffs Department, and Officer Smith. The Lewises allege a deprivation of their son’s Fourteenth Amendment due process rights in violation of 42 U.S.C. § 1983 and wrongful death under California state law. Defendants removed the case to federal court on the basis of federal question jurisdiction and moved for summary judgment on various grounds. The district court granted summary judgment in favor of all defendants on the § 1983 claims. The court also granted summary judgment in favor of Smith as to the state causes of action. The court denied summary judgment as to the pendent state law causes of action against the County and the SherifPs department, dismissing those claims without prejudice. The district court’s decisions are summarized below. First, the district court assumed, without deciding, that Officer Smith had violated Lewis’s constitutional rights. The court then addressed Smith’s claim to qualified immunity. The court stated that plaintiffs had not presented, and it could not find, any “state or federal opinion published before May, 1990, when the alleged misconduct took place, that supports plaintiffs’ view that they have a Fourteenth Amendment substantive due process right in the context of high speed police pursuits.” The court therefore found that the law regarding Lewis’s Fourteenth Amendment right to life and personal security was not clearly established and granted summary judgment in favor of Officer Smith on qualified immunity grounds. Second, the court granted summary judgment in favor of the county and the sheriffs department on plaintiffs’ claim that both entities had failed to adequately train sheriffs deputies in high-speed pursuits. The court found that, although Smith had received no training in pursuits, he had received training in high-speed driving and that the driving skills overlapped to some extent. The court thus concluded that the training procedures were “not so inherently inadequate” that the sheriffs department and the county could be held liable under" }, { "docid": "15207676", "title": "", "text": "shooting which caused the death of Officer Neal . The Estate asserts that because those breaches occurred before the confrontation with Baker, Officer Peterson had time to deliberate upon his actions and as a result, the deliberate indifference standard should apply. Police department guidelines, however, do not create constitutional rights which are implicated by the breach of such guidelines. See Mettler v. Whitledge, 165 F.3d 1197, 1203 (8th Cir.1999)(plaintifPs assertion that two deputies failed to follow sheriff department’s guidelines by failing to wait for back-up and failing to use squad car to barricade suspect in garage or use other protective actions did not establish a constitutional violation). See also Leiuis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)(faet that officer violated department policy on high-speed chase was not used as a factor by the Court in deciding whether decedent’s Fourteenth Amendment rights were violated). A substantive due process violation can only occur if a police officer’s actions involve “an abuse of executive power so clearly unjustified by any legitimate objective of law enforcement as to be barred by the Fourteenth Amendment.” Lewis, 118 S.Ct. at 1713. The facts of the present case establish that Officer Peterson returned gun fire after being fired upon by Baker. It is undisputed that Officer Peterson never intended to harm Officer Neal or to worsen his legal plight. The tragedy of this event does not alter the analysis that the exercise of an instantaneous judgment by a police officer under these circumstances resulting in the death of a fellow officer does not rise to the level of a substantive due process violation. Therefore, the Court finds that summary judgment for Officer Peterson on this claim is appropriate. III. Fourth and Fourteenth Amendment Claims Against St. Louis County, Chief Battelle, and the Police Board Members In Count II, the Estate has alleged that St. Louis County, Chief Battelle, and the members of the police board violated § 1983 under a failure to train theory or a municipal custom and policy theory. These Defendants cannot be liable merely because a subordinate violated someone’s constitutional rights." }, { "docid": "5358286", "title": "", "text": "making a left turn out of the restaurant parking lot, when Romero rounded the curve and crashed into her car broadside. A Negligence and Due Process Plaintiffs assert that Romero’s negligent driving, under color of state law, deprived Theresa of her right to life without due process. There is no dispute that Romero was acting under color of state law when the accident occurred. We agree with the defendants that negligent operation of a vehicle by a police officer does not rise to the level of a constitutional violation. The Supreme Court has drawn a distinction between constitutional violations and torts which just happen to be committed by public officials. See Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1976) (distinguishing between torts and constitutional violations); Parratt v. Taylor, 451 U.S. 527, 544, 101 S.Ct. 1908, 1917, 68 L.Ed.2d 420 (1981) (same); Daniels v. Williams, 474 U.S. 327, 332-33, 106 S.Ct. 662, 665-66, 88 L.Ed.2d 662 (1986) (same). See also Hewitt v. City of Truth or Consequences, 758 F.2d 1375, 1379-80 (10th Cir.) (negligent conduct not constituting abuse of official power), cert. denied, 474 U.S. 844, 106 S.Ct. 131, 88 L.Ed.2d 108 (1985). Collisions between police vehicles and others caused by police negligence clearly fall on the \"tort\" side of the line. Pau4 424 U.S. at 698-99, 96 S.Ct. at 1159-60; Parratt, 451 U.S. at 544, 101 S.Ct. at 1917. This holding comports with the views of other circuits. See Cannon v. Taylor, 782 F.2d 947, 949-50 (11th Cir.1986) (police cruiser collides with bystander's car); see also Roach v. City of Fredericktown, 882 F.2d 294, 297 (8th Cir.1989) and Jones v. Sherrill, 827 F.2d 1102, 1106-07 (6th Cir.1987) (police chasing suspect whose car collides with bystander's car). B Illegal Seizure Plaintiffs argue that Romero's actions constituted an unlawful seizure of Theresa in violation of the Fourth Amendment, applicable to the states through the Fourteenth Amendment. This argument misperceives the nature of what constitutes a \"seizure\" for Fourth Amendment purposes. The Supreme Court has recently clarified the issue in a manner favorable to the defendants'" }, { "docid": "10473767", "title": "", "text": "699, 96 S.Ct. 1155, 1159, 47 L.Ed.2d 405 (1976). More recently the court stated: To accept respondent’s argument that the conduct of the state officials in this case constituted a violation of the Fourteenth Amendment would almost necessarily result in turning every alleged injury which may have been inflicted by a state official acting under ‘color of law’ into a violation of the Fourteenth Amendment cognizable under § 1983. It is hard to perceive any logical stopping place to such a line of reasoning. Presumably, under this rationale any party who is involved in nothing more than an automobile accident with a state official could allege a constitutional violation under § 1983. Such reasoning ‘would make of the Fourteenth Amendment a font of tort law to be superimposed upon whatever systems may already be adminis tered by the States.’ (citation omitted). We do not think that the drafters of the Fourteenth Amendment intended the Amendment to play such a role in our society. Parratt v. Taylor, 451 U.S. 527, 544, 101 S.Ct. 1908, 1917, 68 L.Ed.2d 420 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). After Daniels, one Court of Appeals held, “... that a person injured in an automobile accident caused by the negligent, or even grossly negligent, operation of a motor vehicle by a policeman acting in the line of duty has no section 1983 cause of action for violation of a federal right.” Cannon v. Taylor, 782 F.2d 947, 950 (11th Cir.1986) (emphasis added). Accord Checki v. Webb, 785 F.2d 534 (5th Cir.1986) (where a citizen suffers physical injury due to a police officer’s negligent use of his vehicle, no section 1983 claim is stated). Accordingly, plaintiff’s claim against Officer Conway must fail. At most, plaintiff avers Conway operated his police vehicle negligently and/or recklessly. In fact, the record fails to indicate that Defendant Conway was operating his vehicle at a high rate of speed or in ah unreasonable manner. Conway’s testimony indicates that he was “falling behind” the Cadillac as it went down Broad Street. Transcript" }, { "docid": "23394197", "title": "", "text": "of the sheriff and deputy sheriffs. II. Alleged Constitutional Violations There are two essential elements to any section 1983 action. First, the conduct complained of must have been committed by a person acting under color of state law; and second, this conduct must have deprived the plaintiff of rights, privileges, or immunities secured by the Constitution or laws of the United States. E.g., Parratt v. Taylor, 1981, 451 U.S. 527, 535,101 S.Ct. 1908, 1912, 68 L.Ed.2d 420. The parties do not dispute that the defendants acted under color of state law in committing the actions of which the plaintiff complains. Viewed in the light most favorable to the plaintiff, the complaint asserts two constitutional violations: an unreasonable seizure, in violation of the fourth amendment as incorporated into the fourteenth amendment; and deprivation of liberty and property without due process of law, in violation of the due process clause of the fourteenth amendment. We examine each asserted violation separately. III. The Fourth Amendment The facts alleged in the complaint establish a clear violation of the fourth amendment. In Payton v. New York, 1980, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639, the Supreme Court held that, in the absence of exigent circumstances, the fourth amendment prohibits the police from making a warrantless and nonconsensual entry into a suspect’s home for the purpose of effecting an arrest. The Court recently reaffirmed and extended Payton by holding that, in the absence of exigent circumstances, the police may not enter a house without a warrant or consent to make an arrest for a nonjailable offense. Welsh v. Wisconsin, 1984, — U.S. ---, 104 S.Ct. 2091, 80 L.Ed.2d 732. Augustine’s complaint alleges that the Lafayette deputy sheriffs entered his house and arrested him without an arrest warrant or a search warrant. None of the facts alleged implies that Augustine consented to this entry or that exigent circumstances justified the warrantless entry. The fourth amendment violation established by these allegations is unmistakable. The district judge apparently believed that, under Parratt v. Taylor, the unconstitutionality of these actions was alleviated by the availability of state tort" }, { "docid": "13090764", "title": "", "text": "765, 770 (5th Cir.) reh’g denied, 646 F.2d 962, cert. denied, 454 U.S. 1097, 102 S.Ct. 669, 70 L.Ed.2d 638 (1981). There was no evidence to support the conspiracy allegation. The plaintiff complains of no mistreatment on this occasion. The district court properly entered summary judgment in favor of all defendants to the extent that plaintiff’s complaint is based on the January 8 incident. JANUARY 9, 1982 The January 9 incident stands on a different footing. The district court properly noted the existence of a triable issue of fact on the question of the use of excessive force by Officer Black in effectuating plaintiff’s arrest, and properly denied Black’s motion for summary judgment. The district court’s dismissal of plaintiff’s complaint based on the existence of an adequate state remedy conflicts with this court’s decision in Gilmere v. City of Atlanta, 774 F.2d 1495 (11th Cir.1985) (en banc). In Gilmere, this court addressed the question of whether the existence of a parallel state law tort remedy precludes all Section 1983 actions based on the alleged use of excessive force by a police officer. After reviewing the legislative history of Section 1983, the Supreme Court’s pronouncements in other cases, as well as the limits set by the Court in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), the en banc court concluded that the existence of a parallel tort remedy does not automatically preclude a plaintiff from asserting substantive due process violations directly in federal court under Section 1983. Gilmere, 774 F.2d, at 1498. In order to sustain the district court’s dismissal of plaintiff's claim, this court must find, as a matter of law, that the defendant’s conduct did not rise to the level of a constitutional tort. The district court certainly was correct in recognizing that not every injury inflicted by a law enforcement official constitutes a violation of the fourteenth amendment. “Not every push or shove, even if it may seem unnecessary in the peace of a judge’s chambers, violates a prisoner’s constitutional rights.” Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.) cert. denied," }, { "docid": "18590359", "title": "", "text": "action. The continued failure of the city to prevent known constitutional violations by its police force is precisely, the type of informal policy or custom that is actionable under section 1983. See Herrera v. Valentine, 653 F.2d 1220, 1224 (8th Cir.1981); See also Turpin v. Mailet, 619 F.2d 196 (2d Cir.), cert. denied, 449 U.S. 1016, 101 S.Ct. 577, 66 L.Ed.2d 475 (1980). Ill Appellant maintains that plaintiffs failed to state a claim under section 1983, because they had an adequate remedy under state law and were not denied due process. Plaintiffs can pursue claims for false imprisonment, false arrest, and assault and battery in state court. Since state law provides plaintiffs with these post-deprivation remedies, appellant asserts that plaintiffs have received all the process which they are due under the Fourteenth Amendment. Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) is the starting point for discussion. Parratt involved a section 1983 suit for damages of $23.50 brought by an inmate for the negligent deprivation of property without due process of law. The court concluded that the due process clause was not violated because plaintiff had an adequate state remedy. A pre-deprivation hearing was not practical and a post-deprivation hearing was available. Id. at 543, 101 S.Ct. at 1916. The court emphasized the need for this result. Otherwise, every injury caused by a state official under color of law would constitute a due process violation and would be actionable under section 1983. Id. at 544, 101 S.Ct. at 1917. Justices Stewart and Powell concurred, because they did not believe the claim rose to the level of a deprivation of property under the Constitution. Id. 544, 546, 101 S.Ct. 1917, 1918. Justices White and Blackmun emphasized that the opinion was limited to deprivations of property and did not encom pass deprivations of life or liberty. Id. at 545, 101 S.Ct. at (White and Blackmun concurring). In Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), the court dealt with an intentional deprivation of property through an unauthorized act by a state employee." }, { "docid": "5234792", "title": "", "text": "and was not intentionally designed to punish her. The Defendants also submit that even if the actions of the police officers might be construed as a violation of the substantive due process rights of Shenita Smith, the police officers are entitled to qualified immunity. In opposing the Defendants’ motion for summary judgment, Plaintiff argues that while she is not questioning the police officers’ decision to pursue an alleged DUI suspect, she questions the manner in which the pursuit was executed, alleging that the police officers failed to utilize their emergency equipment (lights and sirens) during this pursuit, in violation of LFUCG policies, procedures and law, and that the failure to use the emergency equipment represents an arbitrary abuse of police power which shocks the conscience. Plaintiff asserts that as a result of such police misconduct, Shenita Smith was deprived of life and liberty, in violation of her Fourteenth Amendment right to substantive due process. C. Analysis 1. The § 1983 claim The initial inquiry in any section 1983 action must focus on whether the alleged conduct resulted in the deprivation of rights, privileges or immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912-13, 68 L.Ed.2d 420 (1981). “Unless a deprivation of some federal constitutional or statutory right has occurred, Section 1983 provides no redress even if the plaintiffs common law rights have been violated and even if the remedies available under state law are inadequate.” Lewellen v. Metropolitan Government of Nashville and Davidson County, Tennessee, 34 F.3d 345, 347 (6th Cir.1994). In the present action, Plaintiff alleges that the conduct of the LFUCG police officers deprived Shenita Smith of life and liberty without substantive due process in violation of the Fourteenth Amendment. Therefore, it is necessary to view the facts of this action against the standards applicable to substantive due process claims to determine if the police conduct in question rises to the level of a constitutional violation. Applicable law The evolution of the standards by which governmental conduct must be measured to determine if a violation" }, { "docid": "11408605", "title": "", "text": "OPINION OF THE COURT COWEN, Circuit Judge. These five consolidated actions under 42 U.S.C. § 1983 arose from a high-speed police pursuit in Vineland, New Jersey, in which an automobile attempting to evade Vineland police officers crashed into an innocent bystander’s vehicle. Three people were killed and three others were injured. The plaintiffs are the survivors of the accident and the estates and relatives of those who were killed. They claim that their Fourteenth Amendment substantive due process rights were violated because the police officers pursued the fleeing automobile in a reckless manner in violation of statewide guidelines, and because the City of Vineland (“the City” or ‘Vineland”) had a policy of not properly training its police officers regarding high-speed pursuits. Plaintiffs also brought a state law negligence claim against defendant Town Liquors. Plaintiffs allege that Town Liquors, which sold wine to the driver of the fleeing automobile, contributed to his intoxication and helped to cause the accident. Plaintiffs appeal the grant of summary judgment in favor of all of the defendants. The district court held (1) that the law of the case doctrine did not prohibit it from reeon-sidering a predecessor judge’s earlier denial of summary judgment in favor of the defendants; (2) the standard of care under section 1983 is conduct which “shocks the conscience,” and the pursuing officers’ actions did not rise to that level of misconduct as a matter of law; (3) since, none of the officers were liable, the City could not be liable because its alleged failure to train had not caused a violation of plaintiffs’ constitutional rights; (4) the absence of any remedy under New Jersey law did not affect the scope of plaintiffs’ due process rights; and (5) the evidence against defendant Town Liquors was insufficient, as a matter -of law, to show that the wine it sold was a cause of the accident. We will affirm in part and reverse in part. We agree that the law of the case doctrine does not apply. We hold, however, that the City may be held independently liable for violating the plaintiffs’ constitutional rights," }, { "docid": "14284308", "title": "", "text": "was issued on January 30, 1992, but was withdrawn shortly thereafter. III. DISCUSSION (A) Actions Under 42 U.S.C. § 1983 To establish a claim under 42 U.S.C. § 1983, a plaintiff must demonstrate a violation of a right or privilege secured by the Constitution or laws of the United States committed by a person acting under color of state law. See Parratt v. Taylor, 451 U.S. 527, 535,101 S.Ct. 1908,1912, 68 L.Ed.2d 420 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 330-31, 106 S.Ct. 662, 664-65, 88 L.Ed.2d 662 (1986); Moore v. Tartler, 986 F.2d 682, 685 (3d Cir. 1993). The plaintiff raises his claims under the Fourth, Fifth, Sixth and Fourteenth Amendments. No party disputes that all of the defendants are state actors. Therefore, the resolution of the motion for summary judgment rests on whether the complaint, answers, depositions and affidavits show that there is a genuine issue of material fact as to whether any of the defendants deprived plaintiff of his constitutional rights. Plaintiff has brought claims against the individual defendants in both their official and individual capacities. Individual capacity suits seek to impose personal liability upon a government official; damages are recoverable from the official’s personal assets. See Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985). To the extent that plaintiff is suing the individual defendants in their official capacities, his claims are the equivalent of claims against the municipalities themselves. Will v. Mich igan Dept. of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). Accordingly, we will discuss claims against the individual defendants in their individual capacities separately, while reserving discussion of their liability in their official capacities until the liability of the respective municipalities is discussed. (B) Detective Murtón and Deputy Sheriff Griffiths In Count I, plaintiff alleges that Detective Murtón and Deputy Sheriff Griffiths violated his Constitutional rights under 42 U.S.C. § 1983 by falsely arresting him. The central issue in determining liability in a § 1983 action based on a claim of false arrest is “whether the arresting" }, { "docid": "16211011", "title": "", "text": "defendant, through conduct sanctioned under the color of state law, deprived her of a federal constitutional or statutory right. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.E.2d 420 (1986); Gruenke, 225 F.3d at 298. In Count VI, plaintiffs allege violations of the Fourth Amendment to the United States Constitution as the bases for their Section 1983 claim. Plaintiffs contend that defendants violated DeBellis’ constitutional rights by arresting her without probable cause and by using excessive force in effectuating her arrest. With respect to plaintiffs’ Section 1983 claims, defendants’ brief in support of their motion for summary judgment contends in substance that (1) the officers are entitled to qualified immunity on the grounds that they took DeBel-lis into custody upon a reasonable mistake and (2) the excessive force claim should be dismissed because the evidence establishes that the officers used only the force that was necessary to apprehend the suspect. Each of these arguments is discussed in turn. 2. 42 U.S.C. § 1983: Liability of Allentown Police Department First, we dispose of some matters of pleading. In Section 1983 actions, police departments cannot be sued in conjunction with municipalities, because the police department is merely an administrative arm of the local municipality, and is not a separate judicial entity. See, e.g., Dean v. Barber, 951 F.2d 1210, 1215 (11th Cir.1992); Rhodes v. McDannel, 945 F.2d 117, 120 (6th Cir.1991), cert. denied, 502 U.S. 1032, 112 S.Ct. 872, 116 L.Ed.2d 777 (1992); Open Inns, Ltd. v. Chester County Sheriffs Dept., 24 F.Supp.2d 410, 417 (E.D.Pa.1998); Irvin v. Borough of Darby, 937 F.Supp. 446, 451 (E.D.Pa.1996); Regalbuto v. City of Philadelphia, 937 F.Supp. 374, 377 (E.D.Pa.1995). Because Allentown Police Department is merely an arm of the city of Allentown, we will grant summary judgment to the Police Department on the Section 1983 claim. 3. 42 U.S.C. § 1983: Liability of Officers Bennis, Kulp, Morris and Moyer, Captain Held and Mayor Heydt, as Sued in their Official Capacity The face of plaintiffs’ complaint states that plaintiffs are suing Officers Bennis, Kulp, Morris, and Moyer, Captain Held and Mayor Heydt in" }, { "docid": "18743628", "title": "", "text": "equal protection violation. The plaintiffs’ second claim for relief is based on the allegation that the defendants covered up the fact that the shooting was racially motivated. The named defendants are the City, the Mayor, the Police Commissioner, the Suffolk County District Attorney, an assistant district attorney, and a Boston Police Department detective. Darryl Williams asserts that the defendants’ cover-up deprived him of liberty without due process of law and that the defendants are also liable to him for intentionally inflicting emotional distress. His family seeks recovery from the defendants for their emotional distress. They further allege that the cover-up deprived them of the companionship of Williams in violation of the Fourteenth Amendment. The district court dismissed the fourteenth amendment contention for failure to state a claim for relief. The court dismissed the plaintiffs’ inadequate protection claim on the grounds, inter alia, that section 1983 does not create liability based on the common law negligence of state officials. The court dismissed the claims predicated on the cover-up because the plaintiffs failed to allege that the defendants deprived them of any federal right. II. In reviewing the dismissal of the plaintiffs’ complaint, of course, we must accept as true all material allegations made by them. O’Brien v. DiGrazia, 544 F.2d 543, 545 (1st Cir.1976), cert. denied, 431 U.S. 914, 97 S.Ct. 2173, 53 L.Ed.2d 223 (1977). The complaint should not be dismissed “unless it appears beyond doubt that the plaintiff[s] can prove no set of facts in support of [their] claim which would entitle [them] to relief.” Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). To state a claim for relief under section 1983, the plaintiffs must allege (1) that the defendants acted “under color of state law” and (2) that the defendants deprived them of rights, privileges, or immunities secured by the Constitution or the laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981). The statute provides only a means to redress violations of rights secured by federal law. In Parratt v." }, { "docid": "713126", "title": "", "text": "November 19, 1983, incident, of repeated claims and instances of police abuse and assaultive conduct toward detainees and arrestees; 2. Prior knowledge of similar allegations of abuse against McDaniel; 3. Establishment and enforcement of a quota system for arrests and citations, thereby condoning unlawful and abusive arrests and detentions; 4. Refusal to competently investigate allegations of abuse and assault filed against members of the F.P.D.; 5. Cover-up of acts of misconduct and abuse by police officers; 6. Failure to adequately train police officers in the use of reasonable force; 7. Failure to adequately supervise the actions of police officers; and 8. Rewarding officers who displayed overly aggressive and abusive behavior, while threatening and reprimanding those officers who reported acts of misconduct. Plaintiff claimed these policies, practices, customs and procedures directly and proxi mately resulted in defendant McDaniel’s brutal assault upon Spell. Plaintiff predicated his action upon a deprivation of his constitutional rights substantively secured by the Fourth, Eighth and Fourteenth Amendments. Specifically, Spell asserted that defendants’ tortious conduct rose to constitutional significance, and was therefore cognizable under § 1983, on four independent substantive grounds, including (1) the right of physical integrity, to be free from unlawful detention and to be properly cared for and treated as secured by the substantive due process provisions of the Fourteenth Amendment and (2) the right to be secure against unreasonable seizures as secured by the Fourth Amendment. Defendants answered, denying all substantive allegations and advanced omnibus motions early in the litigation. In March of 1984, all defendants moved to dismiss, contending (1) lack of jurisdiction over the person; (2) lack of jurisdiction over the subject matter; (3) plaintiff's complaint was conclusory and lacked sufficient factual allegations; (4) plaintiff’s allegations failed to state any cognizable claim for relief under § 1983; (5) plaintiff’s claims amounted to mere tortious conduct for assault and battery; and (6) Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) barred the action. In addition, defendants raised a host of affirmative defenses including absolute immunity and good faith immunity. Finally, defendants Holman and Johnson moved at this" }, { "docid": "23555212", "title": "", "text": "U.S.C. § 1983, the plaintiff must prove that (1) the challenged conduct was committed by a person acting under the color of state law, and (2) the conduct caused a deprivation of a person’s rights or privileges protected by the laws or Constitution of the United States. Parrott v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), Baker v. McCollan, 443 U.S. 137, 142, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). In Saucier v. Katz, the United States Supreme Court held that a district court considering a claim of qualified immunity must first determine whether the individual claiming the immunity committed a constitutional violation. Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). The Court considered this a threshold question for, “if no constitutional right would have been violated [by the officer’s conduct] were the allegations established, there is no necessity for further inquiries concerning qualified immunity.” Id. at 201, 121 S.Ct. 2151. The first question for the Court is whether Leis, acting under the color of state law, committed a constitutional violation. A claimed constitutional violation must be based upon active unconstitutional behavior. Greene v. Barber, 310 F.3d 889, 899 (6th Cir.2002). The acts of one’s subordinates are not enough, nor can supervisory liability be based upon the mere failure to act. Id. Summers has failed to demonstrate that Leis engaged in any active unconstitutional behavior. In fact, Summers’s complaint attributes no specific acts to Leis at all. Summers’s claim against the Sheriff is based solely on the actions of his unnamed deputies. Furthermore, Summers’s complaint alleges no specific, unconstitutional policy, custom or practice on the part of Sheriff Leis, nor does it allege that Leis acted in any capacity other than employer of the deputies that arrested Summers. In failing to assert, much less identify, any constitutional wrong committed by Leis, Summers has failed to set forth anything establishing a claim under 42 U.S.C. § 1983. Thus, the Court finds that Leis is entitled to qualified immunity. The district court erred in denying Leis’s motion for summary judgment on this" } ]

[ { "docid": "934368", "title": "", "text": "trial, thus, say plaintiffs, tacitly admitting that there was a genuine dispute as to material fact. On the other hand, defendant in its brief and memorandum also asked for separate and initial “ruling” on the issue. We do not believe that there was any tacit acceptance of a need for full trial of any disputed facts. Most of the facts here are stipulated. The issues to which plaintiffs refer revolve around the intent of the settlement agreement, but plaintiffs as well as defendant consider the terms of the agreement to be plain and clear despite their opposing views of what the agreement did provide. Plaintiffs are convinced that they are entitled to an order denying the defense of release and directing that the trial proceed. However, failing such an order, they contend that there exists a genuine issue of material fact representing the intent of the parties concerning the scope of the release and that plaintiffs are entitled to a trial to resolve that issue. We do not believe that the District Judge erred in finding no genuine issue of material fact. We also find no error in utilizing the summary judgment procedure for interpreting this contract. See Brekken v. Reader’s Digest Special Products, Inc., 7 Cir., 1965, 353 F.2d 505; Repsold v. New York Life Ins. Co., 7 Cir., 1954, 216 F.2d 479. By its own terms the settlement agreement of May 7, 1962, purported to compose all the differences between the parties. Among the actions of which it clearly disposed was District Court Case No. 61 C 44, Aerosol Research Company v. Newman-Green, Inc. and Edward H. Green, filed in the Northern District of Illinois, Eastern Division. It is stipulated by the parties that the plaintiffs’ counter-claim in that case asserted, as in Count III, that defendant filed the 1956 United States patent application knowing that the “invention” had been manufactured and sold by plaintiff Newman-Green and had been in public use more than one year, causing the purported inventor to make a false oath to perpetrate a fraud on the United States Patent Office and upon patent" } ]

[ { "docid": "17326779", "title": "", "text": "collection when it eliminated the bad debt reserve since it would still have remained liable for whatever was collectible in the ordinary course of business. Moreover, the elimination of the bad debt reserve in August occurred long before American Standard agreed to negotiate solely with Weiss and therefore can in no way be said to have fraudulently induced the sale. Second, the record evidence clearly shows that there was no fraud in the execution of the contract, since an absolute warranty was discussed and rejected in favor of collectibility in the ordinary course of business. (Exhibit \"K”, Point 27; Exhibit “S”, Point 27; Agreement, paragraph 6(h), Defendant’s Exhibits in Support of Motion for Summary Judgment). The problem, then, is not at bottom one of fraud but of the construction and legal effect of the contract, and this is an issue properly within the purview of the court. Holmes v. Chartiers Oil Co., 138 Pa. 546, 21 A. 231 (1891). “Summary judgment is properly used for interpreting a contract whose terms are considered by opposing parties to be clear and unambiguous, despite the parties’ divergent views of what the agreement provided.” Goldinger v. Boron Oil Company, 375 F.Supp. 400, 413 (W.D. Pa. 1974); Trans-Fuel Inc. v. Saylor, 440 Pa. 51, 269 A.2d 718 (1970). Summary judgment for defendant is proper on this count because of the evidence that an absolute warranty of collection was repeatedly rejected during the negotiations by American Standard and because the Agreement explicitly limits the warranty to accounts receivable “in the ordinary course of business.” One final point remains to be considered: whether the percentage of uncollected bad debts falls within the definition of “collectible ... in the ordinary course of business.” This issue would appear to be one of material fact, thus precluding summary judgment for American Standard. However, the party opposing summary judgment, Forms, must do more than rely on contrary and conclusory allegations in a well-pleaded complaint. It must set forth specific facts showing that there is a genuinely disputed factual issue for trial. Fed. R. Civ. P. 56(e); see Tunnell v. Wiley, 514" }, { "docid": "18004413", "title": "", "text": "Corp. v. United States, 732 F.2d 913, 916 (Fed.Cir.1984); Shearson Lehman Hutton, Inc. v. United States, 24 Cl.Ct. 770, 773 (1991) (“[IJssues ... [that] are solely matters of contract interpretation ... are consequently appropriate subjects for summary judgment.”), ajfd 983 F.2d 1086, 1992 WL 321020 (Fed.Cir. 1992); see also Government Sys. Advisors, Inc. v. United States, 847 F.2d 811, 812 n. 1 (Fed.Cir.1988) (“Contract interpretation is a matter of law and thus is amenable to decision on summary judgment.”). When seeking to resolve a question of contract interpretation, the court’s primary goal is to ascertain the intent of the contracting parties. Beta Sys., Inc. v. United States, 838 F.2d 1179, 1185 (Fed.Cir.1988) (citing S. Williston, A Treatise an the Law of Contracts § 601 (3d ed. 1961)). To avoid conflicts between provisions within the contract, an agreement should be read as a whole. Reliance Ins. Co. v. United States, 931 F.2d 863, 865 (Fed.Cir.1991); Hol-Gar Mfg. Corp. v. United States, 169 Ct.Cl. 384, 395, 351 F.2d 972, 979 (1965). While the construction of an unambiguous writing is an appropriate matter for summary judgment, language that is reasonably susceptible to more than one interpretation may be considered ambiguous and thus not appropriate for summary judgment. Davis v. Chevy Chase Fin. Ltd, 667 F.2d 160, 169 (D.C.Cir.1981). 1. Failure to comply with USPS regulations Defendant argues that the terms of the alleged oral agreement between the USPS and plaintiff are not binding on the Government because they are contrary to USPS leasing regulations. Plaintiff contends that the oral agreement is a valid contract separate from the lease extensions, so that USPS regulations concerning leases do not control. An examination of the pertinent USPS regulations indicates that plaintiffs position is untenable. USPS Procurement Manual, § 11.4.1 (Feb. 1, 1992), defines a lease as “any written agreement by which the rights of use and occupancy of real estate are transferred from the owner to the Postal Service for a specified period of time in return for a specified rental amount.” USPS Realty Acquisition and Management Handbook, § 314 (Feb. 15, 1991), notes that in" }, { "docid": "9801165", "title": "", "text": "the provisions of the contract are unambiguous. See, e.g., Parish v. Howard, 459 F.2d 616, 618 (8th Cir. 1972). The meaning of a contract is, however, usually a question of fact; as the Second Circuit noted in Heyman v. Commerce and Industry Insurance Co., 524 F.2d 1317, 1320 (1975), discerning contractual intent is a factual question unless the terms of the contract are “wholly unambiguous.” Accord, Landtect Corp. v. State Farm Mutual Life Insurance Co. of America, 605 F.2d 75, 79-80 (3d Cir. 1979). As the.Heyman court noted: Where contractual language is susceptible of at least two fairly reasonable interpretations, this presents a triable issue of fact, and summary judgment would be improper. Heyman, 524 F.2d at 1320 (quoting Aetna Casualty & Surety Co. v. Giesow, 412 F.2d 468, 471 (2d Cir. 1969)). However the test for determining the clarity of contract terms is formulated, the core notion is clear: summary judgment on a contract is appropriate only when the relevant provisions are so straightforward that they can be read in but one way. The doctrines noted above make clear that courts should be reluctant to dispose summarily of claims involving the interpretation of contracts. Where a contract is not “wholly unambiguous,” the parties have the right under principles of American contract law to present oral testimony and other extrinsic material to aid in its interpretation. Heyman, 524 F.2d at 1320. Courts should be especially cautious in determining summarily the meaning of contractual provisions where, as here, the law governing is likely that of a foreign nation, and thus is presumably unfamiliar. Finally, the fact that both parties sought summary judgment on the contract claim does not in any way alter the applicability of these doctrines. See 6 Moore’s Federal Practice ¶ 56.13 at 56-341 (2d ed. 1976 & 1980 Supp.). Applying these principles, we cannot agree that this Agreement was susceptible of but one reasonable interpretation. It is manifest from the provisions set forth above that the document is hardly a model in elegance or clarity. To offer but a single example of possible ambiguity, in Paragraph 3 of" }, { "docid": "1746826", "title": "", "text": "or state securities laws. Following commencement of this action, on July 8, 1996, Fleming sent a letter to SHI stating that Fleming “stands ready, willing and able, to consummate the purchase of the stock of SHI on the same terms and conditions contained in the Bruno’s Agreement without the need for any additional documentation.” Summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The parties to this action have “unconditionally and irrevocably” stipulated to all the relevant facts. ’ Additionally, all parties have agreed to resolve the action by summary judgment, and have provided the Court with a single, definitive, and exclusive record of the facts. Resolving disputes concerning written contracts involves a two-step process. First, as a threshold matter, the court must determine whether the contract is ambiguous. This is a question of law. Forde v. Fisk University, 661 S.W.2d 883, 886 (Tenn.Ct.App.1983); Shelby v. Delta Air Lines, Inc., 842 F.Supp. 999 (M.D.Tenn.1993), aff'd 19 F.3d 1434 (6th Cir.1994). If a contract’s language is clear and unambiguous, the courts will interpret the contract according to its terms without going beyond the four corners of the agreement. Bob Pearsall Motors, Inc. v. Regal Chrysler-Plymouth, Inc., 521 S.W.2d 578, 580 (Tenn.1975). If the contract is ambiguous, then the finder of fact must ascertain the parties’ intentions. Forde, 661 S.W.2d at 886. Because the existence of an ambiguity and the construction of an unambiguous contract are purely legal issues, they are particularly suited for adjudication by summary judgment. Contract language is ambiguous when its meaning is uncertain or when it can be fairly construed in more ways than one. Farmers-Peoples Bank v. Clemmer, 519 S.W.2d 801, 805 (Tenn.1975). The disputed language should be examined in the context of the entire agreement. Cocke County Bd. of Highway Commrs. v. Newport Utils., 690" }, { "docid": "13613322", "title": "", "text": "sixty days written notice, a right Midland exercised. If terminated, the agreement has no effect except that for crude oil contracts Midland has already entered into with a source furnished it by Williams (and apparently for contracts Midland enters into with such a source within one year after Williams furnished Midland that source), the agreement declares Midland must tender the finder’s fee “for the period of the contract agreement.” We cannot say that this agreement is so clear on its face, or so clear when read in the context of the stipulations, documents, and depositions in the record, that summary judgment was appropriate. We cannot say whether the parties intended “new source of supply” to refer to a particular contract Midland might enter into, such as Contract I, or more broadly to general sources of supply, such as the entire offshore federal royalty oil program. Affidavits and documents in the record show that before entering into the agreement with Williams, Midland had inquired about the availability of federal royalty oil. Midland asserts Williams knew about these inquiries. If true, this evidence would suggest that the parties did not intend “new source of supply” to refer to the entire federal royalty program. Furthermore, simply from the documents in the record, we cannot determine how the interpretation of “source” might be affected by language in the finder’s fee agreement that, following termination, limits the finder’s fee to “the period of the contract agreement.” We are also unsure whether it is relevant that Contract II provided for sour crude, while the finder’s fee agreement declares that sour crude is acceptable only for exchange. Additionally, one of the parties granted summary judgment, Midland, apparently drafted the finder’s fee agreement and would be subject to the rule that ambiguities are to be resolved against the drafter. See Williams Petroleum, 539 F.2d at 697. The record suggests both parties were prepared to present additional evidence as to the coverage of the finder’s fee agreement, evidence the trial court should have heard. We hold, therefore, that on this issue summary judgment was improper. We reverse and remand," }, { "docid": "1039003", "title": "", "text": "We need not enter the thicket of differentiating between wholly subjective intention and an objective measurement of intent. See Northland Capital Corp. v. Silver, 735 F.2d 1421, 1433 (D.C.Cir.1984) (Wald, J., dissenting). By “intention” we refer to a \"manifestation of mutual assent to the exchange.” Restatement (Second) of Contracts § 17 (1981). This definition conforms with the standard generally applied by courts construing federal contracts. See Firestone Tire & Rubber Co. v. United States, 444 F.2d 547, 551, 195 Ct.Cl. 21 (1971); 1 J. & B. McBride & T. Todhey, Government Contracts § 2.10[3] (1981). . Even if the contract is \"completely integrated,” the parol evidence rule does not preclude the trier of fact from considering extrinsic evidence in its effort to determine the meaning of an ambiguous contract. Restatement (Second) of Contracts §§ 210 & 2114(c) (1981). . This is so even though the ultimate inquiry in the interpretive process is the intent of the parties, an issue ordinarily considered inherently factual. See J. Calamari a J. Perillo, Contracts 43 n. 13 (2d ed. 1977). Cf. Pullman-Standard v. Swint, 456 U.S. 273, 287-288, 102 S.Ct. 1781, 1784, 72 L.Ed.2d 66 (1982). Because the unambiguous terms of the contract are presumed to embody the intent of the parties, submission of questions of interpretation to the trier of fact is unnecessary. . We use the term “agreement” to refer not to any particular document or statement but to the aggregation of communications that indisputably led to a binding obligation to perform the changes at a fixed price. The question whether, for example, receipt of the purchase orders constituted the actual moment of agreement we leave for the District Court on remand. . Davis v. Chevy Chase Financial Ltd., 667 F.2d 160, 161, 169 (D.C.Cir.1981). . Many of the decisions that focus on the intent of the parties frame the analysis by asking whether the modification agreement constitutes a valid “accord and satisfaction\" and thus discharges the prior obligations of the parties. See, e.g., Chantilly Construction Corp., 81-1 BCA U 14,863 at 73397 (ASBCA No. 24138); Emerson-Sack-Warner Corp. v. United States, 416" }, { "docid": "21568849", "title": "", "text": "is remand, Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 714, 106 S.Ct. 1527, 1530, 89 L.Ed.2d 739 (1986). I conclude that the majority has erred by simply assuming, on the basis of no findings by the district court and no evidence in the record, that the settlement agreement is unitary rather than divisible. A remand to the district court for interpretation of the agreement is necessary because the question of divisibility, like other aspects of contract construction, is a matter of the parties’ intent unless the terms of the contract are wholly unambiguous. See Davis v. Chevy Chase Financial Ltd., 667 F.2d 160, 169-70 (D.C.Cir.1981). Divisibility is an issue of fact that is particularly ill-suited to resolution by an appellate court, because many factors must be considered in determining the parties’ intent as to the divisibility of a contract. As the District of Columbia Court of Appeals has held: There is no set answer to the question of when a contract is divisible and when it is entire. There are merely suggested factors to be considered in resolving the issue. Consideration may be given to: (1) whether the parties assented to all the promises as a single whole; (2) whether there was a separate consideration covering various parts of the agreement or whether consideration was given for each part of the agreement; and (3) whether performance of each party is divided into two or more parts, the number of parts due from each party being the agreed exchange for a corresponding part by the other party. Howard University v. Durham, 408 A.2d 1216, 1219 (D.C.1979) (citations omitted). In this case, a factfinder would have to take notice of the separate consideration for the defendants Continental, Granse, and Mitchell — the release of different legal claims by appellants. The factfinder would have to weigh the possibility that the parties meant to illustrate the divisibility of the contract by devoting a different paragraph of the settlement agreement to each defendant. The factfinder also would have to take into account the total absence in the settlement agreement of any references to possible" }, { "docid": "1038988", "title": "", "text": "to the mutual intentions of the parties. Hodges v. Evans Financial Corp., 707 F.2d 1566, 1568 (D.C.Cir.1983); Firestone Tire & Rubber Co. v. United States, 444 F.2d 547, 550,195 Ct.Cl. 21 (1971). Where the language of a contract is clear and unambiguous on its face, a court will assume that the meaning ordinarily ascribed to those words reflects the intentions of the parties. E.P. Hinkel & Co. v. Manhattan Co., 506 F.2d 201, 204 (D.C.Cir.1974); Appeal of McGrew Ma chine Co., WDBCA 892, 3 CCF 551 (1945). Only if the court determines as a matter of law that the agreement is ambiguous will it look to extrinsic evidence of intent to guide the interpretive process. E.P. Hinkel & Co. v. Manhattan Co., supra, 506 F.2d at 204; WMATA. v. Mergentime Corp., 626 F.2d 959, 961 (D.C.Cir.1980). See also 1 J. & B. McBride & T. Touhey, Government Contracts § 2.10[3] (1978) (hereinafter McBride & Touhey). Whether an agreement is clear on its face or ambiguous has a direct bearing on the appropriateness of summary judgment in contract disputes. Generally, interpretation of a facially clear contract is considered a question of law and is for the court. Pennsylvania Ave. Development Corp. v. One Parcel of Land in D.C., 670 F.2d 289, 292 (D.C.Cir.1981); WMATA v. Mergentime Corp., supra. Thus, when the parties’ intent is “wholly unambiguous” on the face of the agreement, disposition on a motion for summary judgment may be appropriate. Heyman v. Commerce & Industry Ins. Co., 524 F.2d 1317, 1320 (2d Cir.1975); see Davis v. Chevy Chase Financial Ltd., 667 F.2d 160, 161, 169 (D.C.Cir.1981); 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2730.1 at 279-280 (2d ed. 1983) (hereinafter Wright & Miller). When, however, the language is unclear and the search for intent extends beyond the four corners of the agreement, the intended meaning of the contract is a disputed and, necessarily, material question of fact and summary judgment is improper. See Davis v. Chevy Chase Financial Ltd., supra, 667 F.2d at 169; Grand Union Co. v. Cord Meyer Development Corp., 735" }, { "docid": "1038989", "title": "", "text": "in contract disputes. Generally, interpretation of a facially clear contract is considered a question of law and is for the court. Pennsylvania Ave. Development Corp. v. One Parcel of Land in D.C., 670 F.2d 289, 292 (D.C.Cir.1981); WMATA v. Mergentime Corp., supra. Thus, when the parties’ intent is “wholly unambiguous” on the face of the agreement, disposition on a motion for summary judgment may be appropriate. Heyman v. Commerce & Industry Ins. Co., 524 F.2d 1317, 1320 (2d Cir.1975); see Davis v. Chevy Chase Financial Ltd., 667 F.2d 160, 161, 169 (D.C.Cir.1981); 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2730.1 at 279-280 (2d ed. 1983) (hereinafter Wright & Miller). When, however, the language is unclear and the search for intent extends beyond the four corners of the agreement, the intended meaning of the contract is a disputed and, necessarily, material question of fact and summary judgment is improper. See Davis v. Chevy Chase Financial Ltd., supra, 667 F.2d at 169; Grand Union Co. v. Cord Meyer Development Corp., 735 F.2d 714, 717 (2d Cir.1984). See generally J. Calamari & J. Perillo, Contracts 124 (2d ed. 1977); Wright & Miller § 2730.1. Application of this legal framework to the case at hand convinces us that the District Court’s decision to dismiss the case on a motion for summary judgment was incorrect. The court apparently considered the words and conduct that culminated in each of the five modifications to be so unambiguous that they were susceptible of only a single construction. Thus, finding it unnecessary to go outside the agreements to explore the factual and hotly disputed question of intent, it held as a matter of law that the modification agreements themselves clearly reveal a mutual understanding that all costs, including those for delay and disruption, were incorporated into the fixed price for the changes. Although courts applying the “Federal law of Government contracts” have not taken a wholly consistent position on this question, our examination of the relevant case law has led us to conclude that the modification agreements in this controversy are not so" }, { "docid": "12540425", "title": "", "text": "that Midland acquired pursuant to the royalty oil contract with the government. The district court entered summary judgment in favor of Williams in amount of $319,122.17 repre senting .05/barrel on oil delivered to the date of entry of judgment, together with interest of $18,808.98. Further, the Court ordered that so long as Midland shall receive directly or through exchange agreements, U.S. Government royalty oil through the contract of July 13,1973, or any renewals or extensions or novations thereof, Midland shall pay Williams the sum of $.05 per barrel on the oil thus received. On appeal, Midland raises the following issues: (1) whether the court erred in entering summary judgment because the letter agreement cannot properly be read to include Outer Continental Shelf royalty oil as being “found” by Williams; and (2) whether genuine issues of material fact exist rendering entry of summary judgment improper. I. Midland challenges the summary judgment on the basis that the court erred in interpreting the contract because it cannot be said that the Outer Continental Shelf royalty oil was “found” by Williams. We disagree. Courts cannot change terms of an unambiguous contract. They may simply interpret it. James Talcott, Inc. v. Finley, 389 P.2d 988 (Okl.1964). Contracts are to be construed as a whole, with each clause helping to interpret others. Metropolitan Life Insurance Company v. Fisher, 382 P.2d 434 (Okl.1962). And of particular application here is the rule that courts will not make a better contract for the parties than that which they have seen fit to enter into, nor may the courts alter a contract for the benefit of one party and to the detriment of another. Great Western Oil & Gas Company v. Mitchell, 326 P.2d 794 (Okl.1958). The agreement in the case at bar provided that Williams was to find and assist in contractually securing and delivering to Midland’s refinery at Cushing a supply of crude oil. This language imposed an obligation upon Williams to “find” a supply of crude oil for Midland. The record reflects, without contradiction, that Williams “assisted” Midland in obtaining the contract for the purchase of federal" }, { "docid": "9801164", "title": "", "text": "tenure rights are theoretically greater, he need only offer the shares to the Company if he wishes to sell them. By contrast, appellant contends that CCFL’s construction of the Agreement actually reduces Davis’ rights as his service lengthens. According to the CCFL view, prior to the expiration of five years of service, the Company must purchase the shares whenever Davis wishes to sell them or an “Event” occurs, but after five years, there is no obligation on the Company to purchase — only an obligation on Davis to tender. When reviewing a grant of summary judgment, we are, of course, obliged to view the record in the light most favorable to the party .opposing the motion and to resolve all questions of inference in favor of that party. Fed.R.Civ.P. 56(c); Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962); Mazaleski v. Treusdell, 562 F.2d 701, 717 (D.C.Cir.1977). In cases in which the dispositive issue involves the construction of a contract, summary judgment may be appropriate if the provisions of the contract are unambiguous. See, e.g., Parish v. Howard, 459 F.2d 616, 618 (8th Cir. 1972). The meaning of a contract is, however, usually a question of fact; as the Second Circuit noted in Heyman v. Commerce and Industry Insurance Co., 524 F.2d 1317, 1320 (1975), discerning contractual intent is a factual question unless the terms of the contract are “wholly unambiguous.” Accord, Landtect Corp. v. State Farm Mutual Life Insurance Co. of America, 605 F.2d 75, 79-80 (3d Cir. 1979). As the.Heyman court noted: Where contractual language is susceptible of at least two fairly reasonable interpretations, this presents a triable issue of fact, and summary judgment would be improper. Heyman, 524 F.2d at 1320 (quoting Aetna Casualty & Surety Co. v. Giesow, 412 F.2d 468, 471 (2d Cir. 1969)). However the test for determining the clarity of contract terms is formulated, the core notion is clear: summary judgment on a contract is appropriate only when the relevant provisions are so straightforward that they can be read in but one way. The" }, { "docid": "12083969", "title": "", "text": "require that it be “construed in accordance with the laws of the State of Connecticut.” Under Connecticut law extrinsic evidence is not admissible to contradict the unambiguous terms of a writing embodying the parties’ final agreement. Conn.Gen.Stat. § 42a-2-202 (1988); cf., e.g., Fairfield Lease Corp. v. Eastern Sportswear Co., 6 Conn.Cir.Ct. 347, 273 A.2d 300, 302 (1970). We find the language of the guarantee to be unambiguous. Parties desiring to limit liability under a guarantee to the unpaid portion of the first twenty percent would not use the words “20% of the amount due under this Note,” to express that intent. Such language is clearly a guarantee of a percentage of the total amount. Faced with this unambiguous language, we are foreclosed under Connecticut law from considering the extrinsic evidence offered by appellants. Moreover, the evidence proffered in no way aids appellants’ argument. The parties' rejection of “outstanding balance” and use of “amount due” indicates an intent to increase rather than to decrease the exposure of the guarantors. Appellants are therefore liable under the guarantee. The amount for which they are liable, however, cannot be determined on a motion for summary judgment. In the district court, the parties stipulated for purposes of the summary judgment motion that the trademarks were collateral to secure the debt. This stipulation was superfluous because the agreements in question created a security interest as a matter of law under the Connecticut U.C.C. “Regardless of what name the parties give to a transaction, the courts, in general, look beyond the form to the substance, and when one who is called a[n equipment] lessee may become the owner of the leased property at the end of a lease term on full payment of the stipulated rent or by the payment of a small additional amount, the transaction is generally held to be a conditional sale, even though it is couched in the terms of a lease.” Tishman Equipment Leasing, Inc. v. Levin, 152 Conn. 23, 28, 202 A.2d 504, 507 (1964). See also Conn. Gen.Stat. § 42a-l-201(37) (1988). The present case involves the sale of a company’s" }, { "docid": "11970309", "title": "", "text": "Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986) (citation omitted). 3. Rules of contract interpretation Questions of contract interpretation are questions of law that may be resolved by summary judgment. Muniz v. United States, 972 F.2d 1304, 1309 (Fed.Cir. 1992); Fortec Constr. v. United States, 760 F.2d 1288, 1291 (Fed.Cir.1985); P.J. Maffei Bldg. Wrecking Corp. v. United States, 732 F.2d 913, 916 (Fed.Cir.1984). When resolving a question of contract interpretation, the court’s primary purpose is to ascertain the intention of the contracting parties. Beta Sys., Inc. v. United States, 838 F.2d 1179, 1185 (Fed.Cir.1988) (citing S. Williston, A Treatise on the Law of Contracts § 601 (3d ed.1961)). An interpretation that gives a reasonable meaning to all parts of the contract will be preferred to one that leaves portions of the contract meaningless. United States v. Johnson Controls, Inc., 713 F.2d 1541, 1555 (Fed.Cir.1983) (followed in Fortec, 760 F.2d at 1292). An agreement should be read as a whole so as to avoid conflicts between provisions within the contract. Reliance Ins. Co. v. United States, 931 F.2d 863, 865 (Fed.Cir.1991); Hoi-Gar Mfg. Corp. v. United States, 169 Ct.Cl. 384, 395, 351 F.2d 972, 979 (1965). As a matter of contract interpretation, evidence outside the contract only should be considered if the contract is ambiguous. Sylvania Elec. Prods., Inc. v. United States, 198 Ct.Cl. 106, 126, 458 F.2d 994, 1005 (1972). A contract is ambiguous if it is amenable to more than one reasonable interpretation. S.W. Aircraft, Inc. v. United States, 213 Ct.Cl. 206, 212, 551 F.2d 1208, 1212 (1977). A contract is not rendered necessarily ambiguous merely because the parties disagree over the meaning of a particular contract provision. Perry & Wallis, Inc. v. United States, 192 Ct.Cl. 310, 315, 427 F.2d 722, 725 (1970). While the construction of an unambiguous writing is an appropriate matter for summary judgment, language that is reasonably susceptible to more than one interpretation may be considered ambiguous and thus not appropriate for summary judgment. Davis v. Chevy Chase Fin. Ltd., 667 F.2d 160, 169 (D.C.Cir.1981). INSLAW argues that" }, { "docid": "13613321", "title": "", "text": "the conclusory statement that nothing more is due under the finder’s fee contract. Without any indication of the court’s reasoning, we must review the finder’s fee contract and the record to see if Midland and Hudson were entitled to summary judgment, which is proper only if “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). The finder’s fee contract is a letter agreement written on Midland’s stationery, providing specifically that if Williams locates a “new source of supply” and Midland enters into an agreement with that source either while Williams is its consultant or within one year thereafter, Williams is entitled to its $.05 per barrel fee “for as long as that particular supply shall be made available to this company or its assigns even though it may be through exchange(s).” The agreement requires that the crude oil procured be “sweet,” with sour crude acceptable only for exchange. It also provides for termination by either party upon sixty days written notice, a right Midland exercised. If terminated, the agreement has no effect except that for crude oil contracts Midland has already entered into with a source furnished it by Williams (and apparently for contracts Midland enters into with such a source within one year after Williams furnished Midland that source), the agreement declares Midland must tender the finder’s fee “for the period of the contract agreement.” We cannot say that this agreement is so clear on its face, or so clear when read in the context of the stipulations, documents, and depositions in the record, that summary judgment was appropriate. We cannot say whether the parties intended “new source of supply” to refer to a particular contract Midland might enter into, such as Contract I, or more broadly to general sources of supply, such as the entire offshore federal royalty oil program. Affidavits and documents in the record show that before entering into the agreement with Williams, Midland had inquired about the availability of federal royalty oil. Midland asserts Williams knew about" }, { "docid": "18004414", "title": "", "text": "writing is an appropriate matter for summary judgment, language that is reasonably susceptible to more than one interpretation may be considered ambiguous and thus not appropriate for summary judgment. Davis v. Chevy Chase Fin. Ltd, 667 F.2d 160, 169 (D.C.Cir.1981). 1. Failure to comply with USPS regulations Defendant argues that the terms of the alleged oral agreement between the USPS and plaintiff are not binding on the Government because they are contrary to USPS leasing regulations. Plaintiff contends that the oral agreement is a valid contract separate from the lease extensions, so that USPS regulations concerning leases do not control. An examination of the pertinent USPS regulations indicates that plaintiffs position is untenable. USPS Procurement Manual, § 11.4.1 (Feb. 1, 1992), defines a lease as “any written agreement by which the rights of use and occupancy of real estate are transferred from the owner to the Postal Service for a specified period of time in return for a specified rental amount.” USPS Realty Acquisition and Management Handbook, § 314 (Feb. 15, 1991), notes that in order to execute a valid lease extension agreement, the parties must utilize “Form 7415, Lease Extension Agreement (DGS), to extend the provisions of existing lease contracts when the Postal Service cannot occupy proposed new quarters before expiration of the existing lease.” Finally, the USPS Procurement Manual, § 6, If 1.6.2(f) (Feb. 1, 1992), defines a contract modification as: [a] written alteration in the specifications, delivery point, rate of delivery, contract period, price, quantity, or other provisions of an existing contract, whether made unilaterally under a provision in the contract or bilaterally by mutual agreement of the parties to the contract. It includes such bilateral actions as supplemental agreements, and such unilateral actions as change orders, administrative changes, notices of termination, and exercise of options. It is evident that the parties sought to, and did, negotiate a lease extension agreement for the Union Avenue premises. In accordance with USPS regulations, the parties executed the December 2, 1991 agreements on USPS Form 7415. The three agreements each state that the term of the lease is from March" }, { "docid": "15669955", "title": "", "text": "appropriate. A district court’s determination of summary judgment is reviewed anew. See Arbitran, Inc. v. Tralyn Broad., Inc., 400 F.3d 130, 134 (2d Cir.2005). The parties do not dispute that New York law applies here. In New York, if “a contract is straightforward and unambiguous, its interpretation presents a question of law for the court to be made without resort to extrinsic evidence.” Ruttenberg v. Davidge Data Sys. Corp., 215 A.D.2d 191, 192-93, 626 N.Y.S.2d 174 (1st Dep’t 1995) (citation omitted). But summary judgment when interpreting a contract may be granted only when “the intent of the parties can be ascertained from the face of their agreement.” Id. at 197, 626 N.Y.S.2d 174 (quotations omitted). “However, when the meaning of the contract is ambiguous and the intent of the parties becomes a matter of inquiry, a question of fact is presented which cannot be resolved on a motion for summary judgment.” Id. at 193, 626 N.Y.S.2d 174 (quotations omitted). Contracts must be read as a whole, and if possible, courts must interpret them to effect the general purpose of the contract. See Westmoreland Coal Co. v. Entech, Inc., 100 N.Y.2d 352, 358, 763 N.Y.S.2d 525, 794 N.E.2d 667 (2003) (quotations omitted). “It is also important to read the document as a whole to ensure that excessive emphasis is not placed upon particular words or phrases.” South Road Assocs., LLC v. Int’l Bus. Machs. Corp., 4 N.Y.3d 272, 277, 793 N.Y.S.2d 835, 826 N.E.2d 806 (2005) (citation omitted). The parties do not contend that the contract terms in question present an ambiguity— both seek judgment as a matter of law. However, each has a different view of the effect of the contract’s terms on their dispute. Thus, in this case, our determination turns upon the unambiguous language of the publishing agreement. Defendants argue, as the district court concluded below, that paragraph 13 of the publishing agreement, the assignment provision, forecloses the availability of royalties on the assignment of an entire agreement, such as the software agreement, because that assignment provision does not provide for royalties on the assignment of the publishing" }, { "docid": "1733851", "title": "", "text": "counsel who negotiated the agreement would not have included this language without intending to give it some purpose. A patent application may claim and disclose matter not invented by the applicant. In re Clemens, 622 F.2d 1029, 1037 (C.C.P.A.1980). If parties have contracted to consider these disclosures as evidencing a “related” patent, the Court will not interfere with or rewrite their bargain. Seeking to introduce indicia external to the contract in order to interpret the instrument, Fansteel points to asserted ambiguities in the instrument and argues that the intent of the negotiators must be divined before the contract may be understood. Under Pennsylvania law, unambiguous writings are interpreted by the courts. Community College v. Society of the Faculty, 473 Pa. 576, 592, 375 A.2d 1267 (1977), See also Special Jet Services, Inc. v. Federal Insurance Company, 643 F.2d 977, 980 (3d Cir. 1981) Brokers Title Co. v. St. Paul Fire & Marine Insurance Co., 610 F.2d 1174, 1178 (3d Cir. 1980). It is error to leave such questions for the jury. Baltimore Bank for Cooperatives v. Farmers Cheese Cooperative, 612 F.2d 151, 153 (3d Cir. 1979). All contracts are subject to interpretation by courts, including the meaning of the words contained in a patent claim, Methode Electronics, Inc. v. Elco Corp., 385 F.2d 138, 140 (3d Cir. 1967), and counsel’s conflicting reading of the settlement agreement does not by itself create a genuine issue of material fact. Goldinger v. Boron Oil Co., 375 F.Supp. 400 (W.D.Pa.1974), aff’d, 511 F.2d 1393 (3d Cir. 1975). The contract does not contain any ambiguities and parole evidence will not be admitted to aid in its interpretation. See Brezan v. Prudential Insurance Co., 507 F.Supp. 962 (E.D.Pa.1981). The contract,.clearly read and easily understood, grants KBI the right to use those patents owned by Fansteel and “related” to the Pierret process. Under the terms thereof, the contested 007 patent is “related” to the Pierret patent since it “follows, utilizes or incorporates” the methods of making tantalum powder as disclosed by the Pierret patent. Having so found, KBI’s motion for summary judgment will be granted. ORDER AND" }, { "docid": "11970310", "title": "", "text": "Reliance Ins. Co. v. United States, 931 F.2d 863, 865 (Fed.Cir.1991); Hoi-Gar Mfg. Corp. v. United States, 169 Ct.Cl. 384, 395, 351 F.2d 972, 979 (1965). As a matter of contract interpretation, evidence outside the contract only should be considered if the contract is ambiguous. Sylvania Elec. Prods., Inc. v. United States, 198 Ct.Cl. 106, 126, 458 F.2d 994, 1005 (1972). A contract is ambiguous if it is amenable to more than one reasonable interpretation. S.W. Aircraft, Inc. v. United States, 213 Ct.Cl. 206, 212, 551 F.2d 1208, 1212 (1977). A contract is not rendered necessarily ambiguous merely because the parties disagree over the meaning of a particular contract provision. Perry & Wallis, Inc. v. United States, 192 Ct.Cl. 310, 315, 427 F.2d 722, 725 (1970). While the construction of an unambiguous writing is an appropriate matter for summary judgment, language that is reasonably susceptible to more than one interpretation may be considered ambiguous and thus not appropriate for summary judgment. Davis v. Chevy Chase Fin. Ltd., 667 F.2d 160, 169 (D.C.Cir.1981). INSLAW argues that the court must interpret the evidence independently of the contractual provisions, because the Government allegedly obtained INSLAWs property by tortious acts. This argument, however, misconceives the role of a motion in limine or for partial summary judgment in the context of a congressional reference. That Congress referred the matter to the court for fact-finding does not sweep aside the substantial case law that the court and its predecessors have developed both with respect to how the court is to discharge its task to interpret contracts and what legal consequences flow from certain contractual provisions. Nor does a motion in limine or for partial summary judgment short-circuit the procedure that Congress intended to apply to congressional reference cases. INSLAW will have a trial on all contested factual issues, but the meaning of clear, unambiguous English in a contract is not among them. 4. Unlimited and Limited Rights The first issue to be addressed is the nature and extent of the rights to the software given by the contract itself, for the moment excluding consideration of Modification" }, { "docid": "21568848", "title": "", "text": "settlement agreement is not the only possible one, the appellants have failed to show that the district court abused its discretion in denying their motion to enforce the settlement agreement because a “non-abusive rationale,” Maj. op. at 380, is apparent from the face of the agreement. The record shows, however, that no rationale is apparent, because the district court never considered divisibility as a possibility; it made no factual findings regarding the interpretation of the settlement agreement, let alone those that are the predicate of the majority’s holding today. The court below never imagined the theory proposed by the majority that the payment of $3,000 to the Gaineses also involved the release of Continental’s cross-claims against Mitchell and Granse. The district court issued its ruling in the informal setting of a status conference and dismissed the claims against Granse and Mitchell orally in a spontaneous response to a question from appellants’ counsel. Where a district court has “failed to make findings of fact essential to a proper resolution of the legal question,” the proper course is remand, Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 714, 106 S.Ct. 1527, 1530, 89 L.Ed.2d 739 (1986). I conclude that the majority has erred by simply assuming, on the basis of no findings by the district court and no evidence in the record, that the settlement agreement is unitary rather than divisible. A remand to the district court for interpretation of the agreement is necessary because the question of divisibility, like other aspects of contract construction, is a matter of the parties’ intent unless the terms of the contract are wholly unambiguous. See Davis v. Chevy Chase Financial Ltd., 667 F.2d 160, 169-70 (D.C.Cir.1981). Divisibility is an issue of fact that is particularly ill-suited to resolution by an appellate court, because many factors must be considered in determining the parties’ intent as to the divisibility of a contract. As the District of Columbia Court of Appeals has held: There is no set answer to the question of when a contract is divisible and when it is entire. There are merely suggested factors to" }, { "docid": "17326780", "title": "", "text": "to be clear and unambiguous, despite the parties’ divergent views of what the agreement provided.” Goldinger v. Boron Oil Company, 375 F.Supp. 400, 413 (W.D. Pa. 1974); Trans-Fuel Inc. v. Saylor, 440 Pa. 51, 269 A.2d 718 (1970). Summary judgment for defendant is proper on this count because of the evidence that an absolute warranty of collection was repeatedly rejected during the negotiations by American Standard and because the Agreement explicitly limits the warranty to accounts receivable “in the ordinary course of business.” One final point remains to be considered: whether the percentage of uncollected bad debts falls within the definition of “collectible ... in the ordinary course of business.” This issue would appear to be one of material fact, thus precluding summary judgment for American Standard. However, the party opposing summary judgment, Forms, must do more than rely on contrary and conclusory allegations in a well-pleaded complaint. It must set forth specific facts showing that there is a genuinely disputed factual issue for trial. Fed. R. Civ. P. 56(e); see Tunnell v. Wiley, 514 F.2d 971, 976 (1975). Summary Judgment for the movant who has carried his burden of proof is appropriate if the opposing party does not supplement the record. Fed. R. Civ. P. 56(e); See First National Bank v. Cities Service Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968); Tripoli Co., Inc. v. Wella Corp., 425 F.2d 932 (3d Cir. 1970). Summary judgment is granted on this count because Forms failed to direct my attention to any evidence to support its claim that the percentage of uncollected accounts receivable exceeded the industry standard for collectibility in the ordinary course of business. VI. Count IV: David Kercher Claim Plaintiff claims that it was fraudulently induced to exempt David Kercher, the General Manager of Forms, from the employment restriction clause of the Agreement. Both Forms and American Standard have moved for summary judgment. Forms alleges that Kercher and American Standard concocted a “sweetheart deal” in which American Standard surreptitiously agreed to retain Kercher after the sale of Forms and then induced an exemption letter from Weiss" } ]

[ { "docid": "18766618", "title": "", "text": "Race 186-99 (1983); T. Sowell, Race and Economics 150-56 (1975). See generally T. Sowell, Ethnic America (1981). . In this regard, Justice Scalia might well be incorrect in assuming that only white males bear the costs of affirmative action preferences. See Johnson, 107 S.Ct. at 1476 (Scalia, J., dissenting). MIKVA, Circuit Judge, dissenting: I would grant the petition for rehearing; the original decision of the majority was wrong, and the majority’s instant defense of it is more so. The Supreme Court’s recent decision in Johnson v. Transportation Agency, Santa Clara County, California, — U.S. -, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987), has ravaged the majority’s original opinion beyond repair. The Johnson Court’s endorsement of the voluntary affirmative action plan of a public employer vindicates my earlier conviction that the District of Columbia’s affirmative action hiring plan for its Fire Department (the Plan) does not violate Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000-e et seq. (1982 & Supp. Ill 1985). Building upon the analytical framework introduced in United Steelworkers v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979), the Johnson Court established a two-part inquiry which a court must make in determining whether a challenger has sustained his burden in proving that a voluntarily adopted affirmative action plan violates Title VII. See Ledoux v. District of Columbia, 820 F.2d 1293, 1302-03 (D.C.Cir. 1987). As I indicated in my original dissent in this case, the United States did not even begin to demonstrate the Plan’s illegality under this test. See Hammon v. Barry, 813 F.2d 412, 433-47 (D.C.Cir.1987). I write here, therefore, not to elaborate on my reasons for concluding that the Plan withstands Title VII (as well as constitutional) scrutiny. I write instead to spotlight the disturbing gerrymandering of the facts and distortion of the law in which the majority engages in order to appear to survive Johnson’s devastating blow. I pause first, however, to underline the substantial retrenching the majority has done since the panel opinion. A. Constitutional Aspects of the Original Majority Opinion Rattled by the realization of the" } ]

[ { "docid": "6912244", "title": "", "text": "to the MLAAP in this context was inadvertent. . Shea's earlier filing [51] was entitled \"Plaintiff's Opposition to Defendant’s Motion for Summary Judgment, and Cross-Motion for Partial Summary Judgment,” while the later filing is entitled \"Plaintiff’s Motion for Summary Judgment.” In ruling on the earlier cross-motions, Judge Robertson noted “Shea asserts that his cross-motion is. for partial’ summary judgment, but it seems to seek across-the-board relief.” Aug. 11, 2009 Mem. Order [69] at 2 n. 1. Shea notes in his Motion for Summary Judgment that it is not a request for reconsideration of the earlier denial, but does not address Judge Robertson's note. Pl.'s Mem. P. & A. [74-2] at 1 n. 1. Because Shea’s Motion for Summary Judgment is not yet fully briefed and hence not yet before the Court, this discrepancy is simply noted. . The original enactment also included subsection (c), pertaining to reporting requirements, which was repealed in a subsequent reauthorization of the FRAA, when reporting requirements from several sections were consolidated. . State cites to Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 106 S.Ct. 3245, 92 L.Ed.2d 675 (1986), but that case has nothing to do with employment or Title VII, deals only with the language of a specific statute rather than a potential conflict between statutes, and concerns interpretation of the scope of an agency’s rule-making authority under the statute in question. . Arguably § 3922a also includes Title VII by reference, as § 7201 requires reporting on federal affirmative action programs under Title VII’s federal employment provisions. See 5 U.S.C. § 7201(e) (2006). . State failed to bring to the Court’s attention two critical points. First, State failed to note that the 1990 appropriation to which it cites speaks only to the internship program and mentions mid-level employment not at all. Yet State used those congressional findings to bolster its argument regarding how the MLAAP should be interpreted. Second, State failed to mention § 4141a, citing only to § 4141, when both statutory sections were created by the same enactment. As the structure of § 4141a strongly rebuts State’s argument about" }, { "docid": "8311012", "title": "", "text": "and Section 1981. Accord; Setser v. Novack Investment Co., 657 F.2d 962, 967-968 (8th Cir.1981), cert. denied, 454 U.S. 1064, 102 S.Ct. 615, 70 L.Ed.2d 601 (1981) (“in fashioning a substantive body of law under section 1981 the courts should, in an effort to avoid undesirable conflicts, look to the principles of law created under Title VII for direction. Divergent standards under the two statutes would render employers unable to remedy some past discriminatory practices....”) quoting Patterson v. American Tobacco Co., 535 F.2d 257, 270 (4th Cir.), cert. denied, 429 U.S. 920, 97 S.Ct. 314, 50 L.Ed.2d 286 (1976). In this case, Frost alleges both a refusal to enter into a contract (governed by Section 1981) and a failure to hire (governed by Title VII). The Court concludes that both claims are governed by the same standards. The uncontroverted evidence meets Frost’s burden of showing a prima facie case of race discrimination. Frost has shown that she was qualified for the position she sought, that she was rejected on account of her race, and that the position remained open after she was rejected. This shifts to Defendant Chrysler the burden of proffering a legitimate reason for refusing to enter into a contractual/employment relationship with Frost, such as the existence of a valid affirmative action program. Chrysler contends that it rejected Frost’s application for the Edmond Dodge dealership because that dealership had been reserved for a black person as a part of Chrysler’s voluntary affirmative action program. Chrysler cites United Steelworkers of America v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979) and Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987), in support of its position that, in making hiring decisions, an employer may lawfully discriminate in favor of a racial minority pursuant to a valid affirmative action plan. Frost, as Plaintiff, bears the ultimate burden of showing that the race-conscious affirmative action plan is invalid, or that it is a mere pretext for a discriminatory hiring decision. Id. A. “Pursuant to” an Affirmative Action Plan Before addressing the" }, { "docid": "19194320", "title": "", "text": "receive a passing grade on an oral examination, and (e) pass a background cheek. Shea alleged that he would have passed the screening process, but was excluded from consideration solely because of his race, as there was no certification of need. Specifically, Shea alleged harm because his hiring at entry-level rather than mid-level grade has subjected him to lower pay and fewer promotion opportunities than members of minority groups admitted under the MLAAP, in violation of his rights under Title VII. Shea also alleged constitutional violations, but the Court dismissed those claims and Shea did not appeal the dismissal. The Title VII claim is the only one still before the Court. See Shea v. Clinton, 850 F.Supp.2d 153, 156 (D.D.C.2012) (providing factual and procedural history of ease). The Court originally granted State’s Motion to Dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) because the statute of limitations had expired. Mem. & Order, Sept. 30, 2003, ECF Nos. 15 & 16. On appeal, the U.S. Court of Appeals for the D.C. Circuit reversed and remanded. Shea v. Rice, 409 F.3d 448 (D.C.Cir.2005) (holding that each time employer pays employee less than another for discriminatory reason, that pay event is a discrete discriminatory event with own statute of limitations). In light of the Supreme Court’s subsequent decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 127 S.Ct. 2162, 167 L.Ed.2d 982 (2007) — which brought the D.C. Circuit’s analysis into question — this Court granted State’s Motion for Summary Judgment. Shea v. Rice, 587 F.Supp.2d 166 (D.D.C.2008). While this case was again on appeal, Congress passed the Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5 (2009), which abrogated the Supreme Court’s holding in Ledbetter. The D.C. Circuit remanded for reconsideration in light of this intervening change. Shea v. Clinton, No. 08-5491, 2009 WL 1153448, at *1 (D.C.Cir. Apr. 2, 2009). This Court then denied the remaining portions of both parties’ Motions for Summary Judgment. Mem. Order, Aug. 11, 2009, ECF No. 69. The Court also denied" }, { "docid": "7811783", "title": "", "text": "set forth '’employment goals on a category by category basis” and \"distinguishe[d] between skilled and unskilled workers.” But under Weber, a court determines whether a manifest imbalance existed by examining the racial makeup of the labor force. . This two-prong test announced in Weber was reaffirmed in Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987). . We analyze Schurr’s Title VII claim under the approach set forth in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). When a plaintiff establishes a prima facie case, the burden of production shifts to the employer to show a legitimate nondiscriminalory reason for the decision. The decision in Johnson, 480 U.S. at 626, 107 S.Ct. 1442, establishes that one such reason may be an affirmative action plan. If the employer is able to meet this burden of production, the burden shifts back to the employee to demonstrate that the nondiscriminatory reason offered is pretextual, i.e. that the affirmative action plan is invalid. . Evidence that a manifest imbalance existed either before or after Resorts enacted its plan would have sufficed. See Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 291, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986) (O’Connor, J., concurring); Contractors Ass’n of Eastern Penna., Inc. v. City of Philadelphia, 6 F.3d 990, 1004 (3d Cir.1993) (admitting post-enactment evidence); see also Coral Constr. Co. v. King County, 941 F.2d 910, 921 (9th Cir.1991) (explaining that refusing to admit post-enactment evidence places municipalities in the \"dilemma of deciding whether to wait the months necessary for further development of the record, risking ... culpability [to Blacks] due to inaction, or to act and risk liability [to Whites] for acting prematurely but otherwise justifiably.”) . Because we conclude that Resorts’ plan fails the first part of the Weber test, we do not address whether the plan passes the second part of that test; i.e., whether it \"unnecessarily trammel[s] the interests of [non-minority] employees.” Weber, 443 U.S. at 207-08, 99 S.Ct. 2721." }, { "docid": "6912235", "title": "", "text": "reviewing Shea’s Title VII claim, the Court noted that Shea had to satisfy three elements of the claim: (1) that the MLAAP was unlawful, (2) that except for his race, Shea was qualified for the program, and (3) that Shea' was damaged during the period in question by the continuing effects of the MLAAP. Aug. 11, 2009 Mem. Order [69] at 5-6. The threshold issue for a court addressing a Motion for Summary Judgment is to ensure “that there is no genuine dispute as to any material fact.” Fed.R.Civ.P. 56(a). Shea’s requests for reconsideration fail at this point. Shea’s fourth issue for reconsideration is the Court’s finding that the MLAAP must be presumed lawful until Shea demonstrates otherwise. Shea Mot. Recons, at 1. Shea notes that this finding is correct under Supreme Court precedent, and presents his request for reconsideration as a proffer for the record in the event this case is appealed to the Supreme Court. Shea Mot. Recons, at 23. As the Court’s decision was admittedly correct under the law, Shea’s fourth issue for reconsideration will be denied. More importantly, in its original decision, the Court found that “[t]he necessary conclusion is that genuine issues of material fact remain in dispute as to the lawfulness of State’s affirmative action program.” Aug. 11, 2009 Mem. Order [69] at 9. Shea has not contested this conclusion, only the presumption that the program is lawful until proven otherwise. See generally Shea Mot. Recons, at 23-28. Arguably, the Court’s analysis of Shea’s Title VII claim might have ended here, as the summary judgment motion fails for the Title VII claim on this finding alone. But the Court went ahead and addressed the other two prongs of the Title VII test that it enumerated. See Aug. 11, 2009 Mem. Order [69] at 9-11. The first and second issue in Shea’s motion for reconsideration address the Court’s finding with respect to Shea’s demonstration of harm. Were the Court to change its decision on these two issues, Shea’s summary judgment motion would still fail on the unlawfulness element. Shea cannot show that any harm or" }, { "docid": "6912234", "title": "", "text": "strike Shea’s motion will be denied. C. Shea Has Not Met His Burden of Showing that Reconsideration of the Court’s Title VII Analysis is Warranted. Upon remand, the Court denied the parties’ cross-motions for summary judgment. Having addressed the issues State raised for reconsideration, the Court now turns to the issues that Shea has raised. Three of the four issues Shea posits (items numbered 1, 2, and 4) relate to the Court’s analysis of Shea’s Title VII claim: (1) that the Court placed the burden on Shea to establish the amount of damages to which he was entitled, (2) that the Court failed to give conclusive effect to certain requests for admissions, and (4) that the MLAAP must be presumed lawful until Shea demonstrates that it is not. See Shea Mot. Recons, at 1. Because a decision in Shea’s favor here would still not result in the Court granting summary judgment, Shea has not met his burden of demonstrating that harm or injustice would result from the denial of reconsideration of these three issues. In reviewing Shea’s Title VII claim, the Court noted that Shea had to satisfy three elements of the claim: (1) that the MLAAP was unlawful, (2) that except for his race, Shea was qualified for the program, and (3) that Shea' was damaged during the period in question by the continuing effects of the MLAAP. Aug. 11, 2009 Mem. Order [69] at 5-6. The threshold issue for a court addressing a Motion for Summary Judgment is to ensure “that there is no genuine dispute as to any material fact.” Fed.R.Civ.P. 56(a). Shea’s requests for reconsideration fail at this point. Shea’s fourth issue for reconsideration is the Court’s finding that the MLAAP must be presumed lawful until Shea demonstrates otherwise. Shea Mot. Recons, at 1. Shea notes that this finding is correct under Supreme Court precedent, and presents his request for reconsideration as a proffer for the record in the event this case is appealed to the Supreme Court. Shea Mot. Recons, at 23. As the Court’s decision was admittedly correct under the law, Shea’s fourth issue" }, { "docid": "20328595", "title": "", "text": "MEMORANDUM AND ORDER ROYCE C. LAMBERTH, Chief Judge. Pending before the Court is plaintiffs Motion [106] asking the Court to apply judicial estoppel to bar the defendant from filing an Opposition to plaintiffs Mo tion for Summary Judgment [74]. Upon consideration of the Motion [106], the Opposition [115], the Reply [116], the entire record herein and the applicable law, plaintiffs Motion will be DENIED. I. BACKGROUND AND PROCEDURAL HISTORY This is a Title VII reverse discrimination claim brought by pro se plaintiff William Shea (“plaintiff’ or “Shea”), a career foreign service officer, against the State Department (“defendant,” “State,” or “government”). Compl. [1] at 2, Mar. 3, 2002. In 1992, when Shea was offered an appointment to the Foreign Service, the State Department had in place a Mid-Level Affirmative Action Hiring Program (“MLAAP”) that allowed certain candidates to be hired directly into higher, non-entry-level grades. Id. In a nutshell, Shea claims that his career advancement and pay were handicapped by his race because, as a Caucasian of Irish decent, he was ineligible for MLAAP. Compl. [1] at 3-4. In the present motion, Shea asks the Court to apply the doctrine of judicial estoppel to bar defendant from filing an opposition to his Motion for Summary Judgment [74], or from “presenting evidence or argument contradicting the facts and arguments” plaintiff asserted in his Motion [74]. Mot. [106] at 1, Nov. 7, 2011. In what Shea terms as “more-limited” relief, he asks, in the alternative, that the Court bar defendant from “challenging with evidence or argument” both his qualifications to give opinion testimony and the analysis he uses to support his Title VII claim. Id. at 1, 22-23. Shea’s current Motion [106] has its genesis in a status conference held before Judge Robertson on December 18, 2009. At that hearing, the Court ordered that expert and fact discovery close by April 15, 2010, and gave the parties until May 15, 2010, to file Motions for Summary Judgment. Hr’g Tr. [115-1] at 11, Dec. 18, 2009. Judge Robertson specifically advised Shea that he need not wait for the close of discovery to file his" }, { "docid": "11581279", "title": "", "text": "the plan passed muster because it authorized merely that consideration be given to affirmative action concerns when evaluating applicants; gender was a “plus” factor, only one of several criteria that the Agency Director considered in making his decision; no legitimate, firmly rooted expectation on the part of Johnson was denied since the Agency Director could have promoted any of the seven candidates classified as eligible; even though Johnson was refused a promotion, he retained his employment; and the plan was intended to attain a balanced work force, not to maintain one. Id. at 638-40, 107 S.Ct. at 1455-56. III. We analyze Taxman’s claim of employment discrimination under the approach set forth in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Once a plaintiff establishes a prima facie case, the burden of production shifts to the employer to show a legitimate nondiseriminatory reason for the decision; an affir mative action plan may be one such reason. Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 626, 107 S.Ct. 1442, 1449, 94 L.Ed.2d 615 (1987). When the employer satisfies this requirement, the bur den of production shifts back to the employee to show that the asserted nondiscriminatory reason is a pretext and that the affirmative-action plan is invalid. Id. For summary judgment purposes, the parties do not dispute that Taxman has established a prima facie case or that the Board’s decision to terminate her was based on its affirmative action policy. The dispositive liability issue, therefore, is the validity of the Board’s policy under Title VII. IV. Having reviewed the analytical framework for assessing the validity of an affirmative action plan as established in United Steelworkers v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979), and refined in Johnson, 480 U.S. at 616, 107 S.Ct. at 1442, we turn to the facts of this ease in order to determine whether the racial diversity purpose of the Board’s policy mirrors the purposes of the statute. We look for the purposes of Title VII in the plain meaning of the Act’s provisions and in" }, { "docid": "11581336", "title": "", "text": "situation presented here. Moreover, in the only two instances in which the Supreme Court examined under Title VII, without the added scrutiny imposed by the Equal Protection Clause, affirmative action plans voluntarily adopted by employers that gave preference to race or sex as a determinative factor, the Court upheld both plans. In its 1979 decision in United Steelworkers v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979), the Court held that an agreement between a private company and a union that sought to remedy the historical exclusion of Blacks from skilled craft unions by reserving half the openings in an in-house training program for Blacks did not violate Title VIL A scarce decade later, it reached a similar decision in Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987), where the plan that the Court upheld authorized consideration of the gender of a qualified applicant as one of various factors for promoting employees into jobs in which women had been significantly underrepresented. The majority presents Weber and Johnson as if their significance lies in the obstacle course they purportedly establish for any employer adopting an affirmative action program. But, as the Justices of the Supreme Court recognized, the significance of each of those cases is that the Supreme Court sustained the affirmative action plans presented, and in doing so deviated from the- literal interpretation of Title VII precluding use of race or gender in any employment action. As Justice Brennan explained in Weber, “It is a ‘familiar rule that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit nor within the intention of its makers.’ ” Weber, 443 U.S. at 201, 99 S.Ct. at 2726 (quoting Holy Trinity Church v. United States, 143 U.S. 457, 459, 12 S.Ct. 511, 512, 36 L.Ed. 226 (1892)). The Justices dissenting in those cases noted and vigorously objected to the departure. See, e.g., Weber, 443 U.S. at 222, 228, 99 S.Ct. at 2737, 2740 (Rehnquist, J., dissenting) (asserting that the majority" }, { "docid": "23404607", "title": "", "text": "institutions are founded upon the doctrine of equality,” Regents of University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 2748-50, 57 L.Ed.2d 750 (1978), and thus are presumptively unconstitutional. See Personnel Admin. v. Feeney, 442 U.S. 256, 272, 99 S.Ct. 2282, 2292, 60 L.Ed.2d 870 (1979). Nevertheless, many cases on the question of equal protection hold that in order to correct the effects of past discrimination against minorities in this country, a narrowly tailored race-conscious affirmative action program will not, under limited circumstances (such as those explained below), violate the fourteenth amendment. See, e.g., United States v. Paradise, 480 U.S. 149, 107 S.Ct. 1053, 1064, 94 L.Ed.2d 203 (1987) (plurality opinion) (Fourteenth Amendment); United Steelworkers v. Weber, 443 U.S. 193, 208, 99 S.Ct. 2721, 2729, 61 L.Ed.2d 480 (1979) (Title VII). Recently, in Johnson v. Transportation Agency, 480 U.S. 616, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987), the Supreme Court clarified the manner in which the defense of a valid affirmative action program fits within the analytical framework for proof of unlawful racial discrimination set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973): “Once a plaintiff establishes a prima fa-cie case that race or sex has been taken into account in an employer’s employment decision, the burden shifts to the employer to articulate a non-discriminatory rationale for its decision. The existence of an affirmative plan provides such a rationale. If such a plan is articulated as the basis for the employer’s decision, the burden shifts to the plaintiff to prove that the employer’s justification is pre-textual and the plan is invalid. As a practical matter, of course, an employer will generally seek to avoid a charge of pretext by presenting evidence in support of its plan. That does not mean, ... that reliance on an affirmative action plan is to be treated as an affirmative defense requiring the employer to carry the burden of proving the validity of the plan. The burden of proving its invalidity remains on the plaintiff.” Johnson, 107 S.Ct. at 1449. As noted, the jury" }, { "docid": "8311017", "title": "", "text": "Chrysler’s decision to reject Frost’s application was not made pursuant to such a plan. B. Legitimacy of the Affirmative Action Plan Race-conscious, voluntary affirmative action plans are permissible if they meet certain criteria. First, the plan must be justified by a conspicuous imbalance in traditionally segregated job categories; and second, the plan must not unnecessarily trammel the rights of the non-minority or create an absolute bar to their advancement. United Steelworkers of America v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979); Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987). 1. Existence of a Conspicuous Imbalance Chrysler has failed to show a manifest imbalance in a traditionally segregated job category, dealership owners, because it has failed to present evidence of the percentage of blacks in the population who are qualified for such positions. Chrysler expects its dealers to be qualified by “experience, aggressiveness and ability” or to be “familiar with automotive retailing and ha[ve] a record of effective performance,” and to also have the necessary capital resources to purchase such a dealership. Chrysler has produced no evidence from which the Court may compare the percentage of black persons possessing these qualifications with the percentage of dealerships owned by blacks. See Johnson, 480 U.S. at 632, 107 S.Ct. at 1451, 94 L.Ed.2d at 631 (“Where a job requires special training, however, the comparison should be with those in the labor force who possess the relevant qualifications.”) Such a comparison is necessary to support a finding that a conspicuous imbalance exists. Since the MDDP and the MIP address different concerns, (the MDDP addressing lack of training and experience, the MIP addressing lack of financial resources), Chrysler has the evidentiary burden of proving the existence of conspicuous racial imbalances separately. As in Weber, which involved a training program designed to provide expertise, Chrysler’s evidence comparing the percentage of black-owned dealerships and the percentage of blacks in the general population, is arguably sufficient to support the MDDP insofar as it relates to blacks. However, Chrysler has failed to produce evidence showing that," }, { "docid": "2242899", "title": "", "text": "Iona Coll., 521 F.3d 130, 141 (2d Cir.2008) (explaining that “[i]t is not our task, at the second stage of the McDonnell Douglas framework, ... to determine whether the [defendant’s] explanation of its action is convincing” but rather only to “ask whether defendant has introduced evidence that, ‘taken as true, would permit the conclusion that there was a nondiscriminatory reason’”) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509,113 S.Ct. 2742,125 L.Ed.2d 407 (1993) (emphasis in Hicks)). Nor does our decision to remand require us now to decide whether, despite a strong basis in evidence, a defendant’s claimed purpose to avoid disparate-impact liability might be attacked as pretextual. See Ricci v. DeStefano, 129 S.Ct. at 2683 (Alito, J., concurring). Much less need we decide that such a pretext attack occurs at step two of McDonnell Douglas analysis, as the majority indicates. Because defendants’ challenged settlement conduct was plainly animated by race, ethnicity, and gender considerations, here, as in Ricci, any “analysis begins,” not with McDonnell Douglas, but “with this premise: [defendants’] actions would violate the disparate-treatment prohibition of Title VII absent some valid defense.” Id. at 2673 (emphasis added). Thus, in ordering remand, we can leave it to the able district judge to decide in the first instance whether defendants have the strong basis in evidence necessary to pursue a defense of disparate-impact liability. See id. at 2677. Third, the majority engages in an extensive discussion of affirmative-action precedent and strongly suggests that such plans would continue to be judged by reference to standards derived from Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987), and United Steelworkers of America v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979), rather than Ricci. The matter is by no means clear. As the majority recognizes, the Supreme Court in Ricci did not so condition its ruling, signaling that “its core holding applies whenever an employer takes race conscious action ‘for the asserted purpose of avoiding or remedying an unintentional disparate impact.’ ” Ante at [104] (quoting Ricci v. DeStefano," }, { "docid": "7811782", "title": "", "text": "to be entitled to forward-looking relief. That issue is governed by Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 211, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995), a decision that issued shortly after and was therefore not addressed in Bras. Moreover, unlike the situation in Bras, the evidence in this case indicates that Schurr has in fact been repeatedly subject to the challenged regulations, without apparent adverse consequence. . Such evidence is of obvious important to the imminence issue. For example, Sehurr testified at this deposition that he rarely works at \"the Sands\" merely because \"they don’t do much.” The challenged regulations thus played no part in Schurr’s inability to work at the Sands. . Our decision with respect to Schurr’s standing to pursue forward looking relief on his equal protection claim applies as well to any claim for forward-looking relief under Title VII or the related statutes that Schurr asserts. . For example, the District Court concluded the Commission’s affirmative action regulations were enacted to remedy a manifest imbalance because it found the regulations set forth '’employment goals on a category by category basis” and \"distinguishe[d] between skilled and unskilled workers.” But under Weber, a court determines whether a manifest imbalance existed by examining the racial makeup of the labor force. . This two-prong test announced in Weber was reaffirmed in Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987). . We analyze Schurr’s Title VII claim under the approach set forth in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). When a plaintiff establishes a prima facie case, the burden of production shifts to the employer to show a legitimate nondiscriminalory reason for the decision. The decision in Johnson, 480 U.S. at 626, 107 S.Ct. 1442, establishes that one such reason may be an affirmative action plan. If the employer is able to meet this burden of production, the burden shifts back to the employee to demonstrate that the nondiscriminatory reason offered is pretextual, i.e. that the affirmative action plan is invalid. . Evidence" }, { "docid": "23404613", "title": "", "text": "claim of past discrimination, the plurality found that the Board had not established a “compelling interest” for its affirmative action plan. 106 S.Ct. at 1849. In Janowiak we explained that a combination of this plurality ruling, Justice White’s concurrence, id. 106 S.Ct. at 1857, and Justice O’Connor’s concurrence, id. at 1852-57, produced a “lowest common denominator” holding that essentially squares with that of the plurality opinion. 836 F.2d at 1041. We stated: “For our purposes, the lowest common denominator holding of Wygant is that a statistical comparison upon which an affirmative action plan is based must compare the percentage of minorities in the employer’s work force with the percentage of minorities in the relevant qualified area labor pool before it can establish the predicate past discrimination required to justify an affirmative action remedy under the fourteenth amendment.” Id. at 1041-42. More recently, the Supreme Court in Johnson v. Transportation Agency, 480 U.S. 616, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987), applied a slightly less restrictive test for upholding the validity of an affirmative action plan. In finding a Santa Clara County, California, affirmative action plan permissible under Title VII, the Court held that “an employer seeking to justify the adoption of a plan need not point to its own prior discriminatory practices, nor even to evidence of an ‘arguable violation’ on its part.... Rather, it need point only to a ‘conspicuous [or manifest] ... imbalance in traditionally segregated job categories.’ ” 107 S.Ct. at 1451 (quoting Steel Workers v. Weber, 443 U.S. 193, 209, 212, 99 S.Ct. 2721, 2730, 2731, 61 L.Ed.2d 480 (1977)). In determining that such a “conspicuous” imbalance exists as to justify a plan that takes race into account, Johnson confirmed the Wygant plurality’s holding: “A comparison of the percentage of minorities or women in the employer’s work force with the percentage in the area labor market or general population is appropriate in analyzing jobs that require no special expertise, ... or training programs designed to provide expertise, .... Where a job requires special training, however, the comparison should be with those in the labor force who" }, { "docid": "16528833", "title": "", "text": "particularly probative, summary judgment may be granted. Id. at 249-50, 106 S.Ct. at 2510-11. Finally, in passing on such a motion, the court is not at liberty to weigh evidence or resolve factual disputes. Id. at 249, 255, 106 S.Ct. at 2510, 2513; Nathanson v. Medical College of Pennsylvania, 926 F.2d 1368, 1380 (3d Cir.1991). Rather, the court is bound to view the facts in the light most favorable to the nonmoving party and draw all reasonable inferences in that party’s favor. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir.1992). The claims of employment discrimination on the basis of race brought by plaintiff and Taxman are properly analyzed under the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 626, 107 S.Ct. 1442, 1448, 94 L.Ed.2d 615 (1987). There is no dispute that plaintiff and Taxman have established a prima facie case; indeed, the Board’s concession that it took race into account in making the employment decision is sufficient in and of itself to establish a prima facie case. Higgins v. Vallejo, 823 F.2d 351, 355 (9th Cir.1987), cert. denied, 489 U.S. 1051, 109 S.Ct. 1310, 103 L.Ed.2d 579 (1989). The burden, therefore, shifts to the Board to articulate a legitimate, nondiseriminatory reason for its action. Id. “The existence of an affirmative action plan provides such a rationale”. Id. The Board having met its burden of production, the burden shifts back to plaintiff and Taxman to show that the plan is invalid. Id. Plaintiff and Taxman at all times bear the burden of proving the plan’s invalidity. Id. A. Supreme Court Authority on Reverse Discrimination Under Title VII: Weber and Johnson This court’s analysis of the Board’s affirmative action plan must begin with the Supreme Court’s decision in United Steelworkers of America v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979). The Court" }, { "docid": "2242900", "title": "", "text": "violate the disparate-treatment prohibition of Title VII absent some valid defense.” Id. at 2673 (emphasis added). Thus, in ordering remand, we can leave it to the able district judge to decide in the first instance whether defendants have the strong basis in evidence necessary to pursue a defense of disparate-impact liability. See id. at 2677. Third, the majority engages in an extensive discussion of affirmative-action precedent and strongly suggests that such plans would continue to be judged by reference to standards derived from Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987), and United Steelworkers of America v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979), rather than Ricci. The matter is by no means clear. As the majority recognizes, the Supreme Court in Ricci did not so condition its ruling, signaling that “its core holding applies whenever an employer takes race conscious action ‘for the asserted purpose of avoiding or remedying an unintentional disparate impact.’ ” Ante at [104] (quoting Ricci v. DeStefano, 129 S.Ct. at 2677 (emphasis added by majority)). Because this case does not involve an affirmative-action plan, there is no need to “harmonize[]” Ricci with affirmative-action precedent to order remand, much less to do so in a way that could be construed to cabin Ricci to cases challenging make-whole individualized relief. Id. at [102]. To be sure, the majority’s earlier statement that “[i]n light of Ricci,” Johnson/Weber analysis “extends, at most, to circumstances in which an employer has undertaken a race- or gender-conscious affirmative action plan designed to benefit all members of a racial or gender class in a forward-looking manner only,” id. at [72] (emphasis in original), appears properly to leave for another day any controlling resolution of Ricci’s application to affirmative-action challenges. But that is all the more reason for this panel to exercise restraint and to order remand without anticipating cases not now before us. Fourth, the majority attempts to provide the district court with detailed guidance as to how to apply the Ricci strong-basis-in-evidence test to the record facts. This too" }, { "docid": "11581278", "title": "", "text": "of Title VII and the Federal Constitution on voluntarily adopted affirmative action plans are not identical. Johnson, 480 U.S. at 632, 107 S.Ct. at 1452. In this regard, the Court further reasoned that requiring an employer in a Title VII affirmative action case to show that it had discriminated in the past “would be inconsistent with Weber ’s focus on statistical imbalance, and could inappropriately create a significant disincentive for employers to adopt an affirmative action plan”. Id. at 633, 107 S.Ct. at 1453 (footnote omitted). Reviewing Agency statistics which showed that women were concentrated in traditionally female jobs and represented a lower percentage in other jobs than would be expected if traditional segregation had not occurred, the Court concluded that the decision to promote Joyce was made pursuant to a plan designed to eliminate work force imbalances in traditionally segregated job categories and thus satisfied Weber’s first prong. Id. at 634, 107 S.Ct. at 1453. Moving to Weber’s second prong, whether the plan unnecessarily trammeled the rights of male employees, the Court concluded that the plan passed muster because it authorized merely that consideration be given to affirmative action concerns when evaluating applicants; gender was a “plus” factor, only one of several criteria that the Agency Director considered in making his decision; no legitimate, firmly rooted expectation on the part of Johnson was denied since the Agency Director could have promoted any of the seven candidates classified as eligible; even though Johnson was refused a promotion, he retained his employment; and the plan was intended to attain a balanced work force, not to maintain one. Id. at 638-40, 107 S.Ct. at 1455-56. III. We analyze Taxman’s claim of employment discrimination under the approach set forth in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Once a plaintiff establishes a prima facie case, the burden of production shifts to the employer to show a legitimate nondiseriminatory reason for the decision; an affir mative action plan may be one such reason. Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 626, 107 S.Ct. 1442," }, { "docid": "16851751", "title": "", "text": "affirmative action plan. When “such a plan is articulated as the basis for the employer’s decision, the burden shifts to the plaintiff to prove that the employer’s justification is pretextual and the plan is invalid.” Johnson v. Transportation Agency, 480 U.S. 616, 626, 107 S.Ct. 1442, 1449, 94 L.Ed.2d 615 (1987). This case boils down to whether the appellee’s affirmative action plan is valid. Under Title VII, an employer voluntarily may adopt an affirmative action plan to overcome the existence of a “manifest imbalance” in a traditionally segregated job category. Id. at 631, 107 S.Ct. at 1451-52. “In determining whether an imbalance exists that would justify taking sex or race into account, a comparison of the percentage of minorities or women in the employer’s work force with the percentage in the area labor market or general population is appropriate in analyzing jobs that require no special expertise.” Id. at 631-32, 107 S.Ct. at 1452. If the job at issue requires special qualifications, however, “the comparison should be with those in the labor force who possess the relevant qualifications.” Id. at 632,107 S.Ct. at 1452. Additionally, a court must consider whether the plan, in its effort to overcome a manifest imbalance, “unnecessarily trammel[s]” the rights of those not benefitted by it (i.e., nonminorities and men). Id. at 637-38, 107 S.Ct. at 1455; Steelworkers v. Weber, 443 U.S. 193, 208, 99 S.Ct. 2721, 2730, 61 L.Ed.2d 480 (1979). Applying this test, the district court concluded that the appellee’s affirmative action plan was valid. Accordingly, it rejected appellant’s Title VII claim. In my opinion, the district court used a flawed methodology to conclude that there is a manifest imbalance between the percentage of minorities employed by appellee and the percentage of minorities in the relevant labor pool. In reaching this conclusion, “[t]he district court ... simply looked at the percentages of minorities of Dade County, and compared that with the percentages of minorities employed as firefighters in the Department, to decide whether the disparities justified an affirmative action program.” Ante Maj. op. at 1405 (opinion of Brown, J.). The court relied on general" }, { "docid": "2242723", "title": "", "text": "had not been selected for the training program, brought suit under § 703(a) of Title VII, arguing that he had been denied entry into the training program because of his race. The Supreme Court held that “Title VII’s prohibition in § [ ] 703(a) ... against racial discrimination does not condemn all private, voluntary, race-conscious affirmative action plans.” Id. at 208, 99 S.Ct. 2721. The Court did not “define in detail the line of demarcation between permissible and impermissible affirmative action plans.” Id. But the Court noted that the plan was “structured to open employment opportunities for Negroes in occupations which have been traditionally closed to them,” and that it did not “unnecessarily trammel the interests of the white employees” because it was “a temporary measure” that did not “require the discharge of white workers and their replacement with new black hirees” or “create an absolute bar to the advancement of white employees.” Id. The Court therefore held that the affirmative action plan in Weber “f[ell] within the area of discretion left by Title VII to the private sector voluntarily to adopt affirmative action plans designed to eliminate conspicuous racial imbalance in traditionally segregated job categories.” Id. at 209, 99 S.Ct. 2721. The Court reaffirmed its Weber holding, and elaborated upon the requirements for a valid affirmative action plan, in Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987). In Johnson the defendant employer voluntarily adopted an affirmative action plan for promotions of employees, and pursuant to this plan it promoted a female employee over the male plaintiff. The plan took sex into account as one of several factors, including the qualifications of applicants for promotions. The Supreme Court upheld this plan against the male plaintiffs § 708(a) attack because it satisfied two requirements. First, the plan was prompted by a “manifest imbalance that reflected underrepresentation of women in traditionally segregated job categories.” Id. at 631, 107 S.Ct. 1442 (quotations omitted). “A manifest imbalance need not be such that it would support a prima facie case against the employer,” id. 13 at" }, { "docid": "8311013", "title": "", "text": "the position remained open after she was rejected. This shifts to Defendant Chrysler the burden of proffering a legitimate reason for refusing to enter into a contractual/employment relationship with Frost, such as the existence of a valid affirmative action program. Chrysler contends that it rejected Frost’s application for the Edmond Dodge dealership because that dealership had been reserved for a black person as a part of Chrysler’s voluntary affirmative action program. Chrysler cites United Steelworkers of America v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979) and Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987), in support of its position that, in making hiring decisions, an employer may lawfully discriminate in favor of a racial minority pursuant to a valid affirmative action plan. Frost, as Plaintiff, bears the ultimate burden of showing that the race-conscious affirmative action plan is invalid, or that it is a mere pretext for a discriminatory hiring decision. Id. A. “Pursuant to” an Affirmative Action Plan Before addressing the validity of Chrysler’s affirmative action plan, the Court first considers whether Chrysler’s rejection of Frost’s application was, in fact, pursuant to that plan. Title VII and Section 1981 generally protect white persons as well as minorities from racial discrimination in employment. McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976). Employers are permitted to give preferential treatment to racial minorities pursuant to valid, voluntary affirmative action plans. United Steelworkers of America v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979). Chrysler’s voluntary affirmative action plan apparently consists of both the MDDP, a training program limited to certain minorities, and the Fair Share Agreement with its so-called right of first refusal. Although Chrysler relies in part upon the MDDP as its affirmative action program, there is no evidence that Frost was rejected for the dealership because she hadn’t completed the MDDP training program. The undisputed evidence shows that Frost was fully qualified for the position by virtue of her work experience, and that the MDDP" } ]

[ { "docid": "22996250", "title": "", "text": "court remanded to the District Court for further findings on that issue. The Ninth Circuit appears to stand alone in embracing the “eoconspirator exception.” We granted certiorari to resolve the conflict, 506 U. S. 952 (1992), and now reverse. It has long been the rule that a defendant can urge the suppression of evidence obtained in violation of the Fourth Amendment only if that defendant demonstrates that his Fourth Amendment rights were violated by the challenged search or seizure. Alderman v. United States, 394 U. S. 165, 171-172 (1969); Rakas v. Illinois, supra, at 131, n. 1, 133-134; Rawlings v. Kentucky, 448 U. S. 98, 106 (1980). We applied this principle to the case of co-conspirators in Alderman, in which we said: “The established principle is that suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence. Co-conspirators and codefendants have been accorded no special standing.” 894 U. S., at 171-172. In Rakas, supra, a police search of a car yielded a box of rifle shells found in the glove compartment and a sawed-off rifle found under the passenger seat. We held that petitioners, who were passengers in the car and had no ownership interest in the rifle shells or sawed-off rifle, and no legitimate expectation of privacy in the area searched, had suffered no invasion of their Fourth Amendment rights. See also Rawlings, supra; Soldal v. Cook County, 506 U. S. 56, 62-64 (1992) (decided since the Court of Appeals rendered its decision in the present case). The “coconspirator exception” developed by the Ninth Circuit is, therefore, not only contrary to the holding of Aider-man, but at odds with the principle discussed above. Expectations of privacy and property interests govern the analysis of Fourth Amendment search and seizure claims. Participants in a criminal conspiracy may have such expectations or interests, but the conspiracy itself neither adds to nor detracts from them. Neither the fact, for example, that Maria Simpson was the “communication" } ]

[ { "docid": "7600607", "title": "", "text": "court to enable it to consider whether evidence was obtained illegally, his motion to suppress is DENIED. Thus, the district court not only suggested that the defendant amend but invited the defendant to amend his motion to suppress to make the necessary and essential allegations that would reflect standing. The defendant failed to offer such an amendment to his motion and no pretrial hearing on the motion to suppress was conducted. During the government’s case in chief, the seized evidence and other fruits of the search were offered into evidence and received over Sneed’s renewed objection. At this point, Sneed still had not alleged any possessory interest or expectation of privacy in the Pursley Street apartment or the property seized therein. The only issue presented in this appeal is whether the district court erred in denying appellant a full and fair opportunity to litigate his Fourth Amendment claim by not conducting a pretrial hearing on his motion to suppress. Fourth Amendment rights are personal rights that may not be vicariously asserted. Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 967, 22 L.Ed.2d 176 (1969); see also Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 425-426, 58 L.Ed.2d 387 (1978). The first issue confronting a district judge when a motion to suppress evidence is presented is whether the disputed search or seizure has infringed an interest of the defendant. This is the threshold issue of “standing”. Upon an appropriate motion this requires an inquiry into whether the defendant had a legitimate expectation of privacy in the premises searched or the property seized. See Rawlings v. Kentucky, 448 U.S. 98, 104-106, 100 S.Ct. 2556, 2561-2562, 65 L.Ed.2d 633 (1980); Rakas v. Illinois, supra. During this inquiry, the defendant as the movant to suppress evidence has the burden of establishing his “legitimate expectation of privacy.” However, it is basic that prior to reaching this point in the inquiry, it is necessary for the movant to allege that he has an expectation of privacy in the premises searched or in some other manner allege that he has standing to" }, { "docid": "12108791", "title": "", "text": "Fourth Amendment protection. Thus, in Katz v. United States, supra, the Court concluded that the expectations of privacy entertained by a person talking in a public telephone booth required protection from electronic surveillance of his conversations. Recently, however, the lack of a reasonable expectation of privacy has been used to justify rejection of several complaints against allegedly unreasonable searches. Thus, installation of a pen register is not a search, because a telephone subscriber has no reasonable expectation of privacy in the telephone numbers that he dials. Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979); cf. United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976). An allegedly unreasonable search of a car cannot be contested by one who is only a passenger, since he lacks a reasonable expectation of privacy as to that car. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1979). And someone who slips narcotics into the purse of a friend cannot contest the legality of a search of the purse, since he lacks any reasonable expectation of privacy as to its contents. Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980). Having identified these basic themes in the Supreme Court’s interpretation of the Fourth Amendment, we next examine their counterparts in the military law of search and seizure. Not until 1949 did a Manual for Courts-Martial discuss searches and seizures. However, long before that time military law had dealt with the subject. As early as 1924, The Judge Advocate General of the Army gave an opinion that: (27) Property seized without warrant. —Search, by a member of the military police, of a soldier’s private dwelling, not on a military reservation, without the soldier’s consent and without a search warrant, and seizure therein of property believed to have been stolen are illegal and an unwarranted invasion of the soldier’s constitutional rights; and upon a subsequent prosecution of such soldier for larceny, the property so seized is not admissible in evidence. CM 161760 Dig. Ops. JAG, 1912-40, § 395(27). On July" }, { "docid": "10495222", "title": "", "text": "appellant to establish the identity of the charged substance. This issue was decided contrary to the appellant’s position in the subsequent case of United States v. Strangstalien, 7 M.J. 225 (C.M.A.1979), and need not detain us further. . It is unnecessary to determine in this case whether the military judge or the Court of Military Review was correct on the question of the appellant’s automatic standing to challenge these searches and seizures. See United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed. 619 (1980). Moreover, since the appellant’s trial in May 1978, the Supreme Court has abandoned a standing approach to these Fourth Amendment issues and required instead that a petitioner demonstrate that he had a legitimate “expectation of privacy in the area searched” as well as the property seized. Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 2560-62, 65 L.Ed.2d 633 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). At the present time, the pertinent inquiry would be whether the appellant had a reasonable expectation of privacy in the area underneath the automobile seat and in the plastic bag contained therein. See Rawlings v. Kentucky, supra; see also United States v. Benson, 631 F.2d 1336 (8th Cir. 1980); United States v. Ross, 27 Cr.L. 2169, 655 F.2d 1159 (D.C. Cir. Apr. 17, 1980). At the hearing on the motion, the government’s evidence indicated that the . automobile was loaned to the three individuals. After denial of the motion, the appellant testified at trial on the merits that the automobile had been loaned to Stiles alone and the plastic bag and its contents were also the latter’s property. See United States v. Portillo, 633 F.2d 1313, 1315-17 (9th Cir. 1980). . The government witness Stiles later testified at trial that Agent Campbell approached the vehicle with his gun. This testimony was given at trial after the military judge first ruled on the suppression motion. Nevertheless, appellate courts, in reviewing the correctness of this ruling, may consider any evidence presented in the trial of the case. Carroll v. United States, 267" }, { "docid": "23169703", "title": "", "text": "be invalid by District Judge Aldon J. Anderson on a motion to suppress filed in criminal proceedings against the principals of the clearinghouses. Appellants argue that use of the illegally seized evidence violates the due process rights guaranteed them by the fifth and tenth amendments. They do not, however, explain the impact of such an argument on this case. We hold that appellants’ argument is without merit and that, in any event, appellants have no standing to raise such a claim. The evidence in question was not improperly seized. Since appellants’ brief was filed, the Tenth Circuit Court of Appeals has reversed Judge Anderson’s holding and has held that the fourth amendment rights of the criminal* defendants in that proceeding were not violated. United States v. Cardall, 773 F.2d 1128 (10th Cir.1985). Given the Tenth Circuit’s holding, we find no merit in appellants’ claim of fourth amendment violations. Had appellants been able to demonstrate that a fourth amendment violation had occurred, their argument would not be well taken because they have not demonstrated the “expectation of privacy” necessary for standing to challenge the legality of the searches involved. In Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the Supreme Court held that in order to challenge the legality of a search or seizure, a person must show that he had a “legitimate expectation of privacy in the invaded place.” Id. at 143, 99 S.Ct. at 430. See also, United States v. Payner, 447 U.S. 727, 731, 100 S.Ct. 2439, 2444, 65 L.Ed.2d 468 (1980). There has been no showing, and we believe appellants would be hard pressed to demonstrate, that they had any expectation of privacy in either the business offices of the clearinghouses or in the business records seized. See Rawlings v. Kentucky, 448 U.S. 98, 105, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980); United States v. Salvucci, 448 U.S. 83, 90, 100 S.Ct. 2547, 2552, 65 L.Ed.2d 619 (1980). Because the evidence at issue was seized legally and because appellants have no standing to challenge the legality of the searches, we hold" }, { "docid": "22806826", "title": "", "text": "does not require suppression of the contents of the suitcase here. As a threshold matter, appellant lacks standing to object to the search of the bag. Appellant has insisted throughout the trial and the appeal that the suitcase is not his and that he was duped into claiming it. By his own admission, therefore, appellant could not have had any expectation of privacy as to the suitcase’s contents. Thus, even if the search was illegal, it did not violate appellant’s Fourth Amendment rights. See Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 2561-62, 65 L.Ed.2d 633 (1980); United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 2552-55, 65 L.Ed.2d 619 (1980); Rakas v. Illinois, 439 U.S. 128, 133-40, 99 S.Ct. 421, 425-29, 58 L.Ed.2d 387 (1978); United States v. Goshorn, 628 F.2d 697, 699-701 (1st Cir. 1980). The rationale of Robbins, moreover, is inapplicable to this case. In Robbins, the warrantless search of the luggage compartment was permissible under the “automobile exception”; but the Court held that the two factors underlying that exception — the inherent mobility of an automobile and the diminished expectation of privacy that surrounds it — do not justify warrantless searches of closed containers inside the automobile. -U.S. at-, 101 S.Ct. at 2845. Here, by contrast, the warrantless search of appellant’s automobile was permissible because the car was subject to statutory forfeiture. Once the automobile was seized, appellant lost any expectation of privacy, at least as to the very article contained in the car that justified the forfeiture. Cf. United States v. Zaicek, 519 F.2d 412, 414-15 (2d Cir. 1975) (reversing suppression of contents of attache ease found in trunk; search was permissible because car was properly seized). In fact, the heroin and the suitcase were themselves subject to forfeiture as a controlled substance and its container, and therefore “no property right . . . existfed] in them.” 21 U.S.C. § 881(a)(1), (3); see United States v. Ledesma, 499 F.2d 36, 39-40 (9th Cir.), cert. denied, 419 U.S. 1024, 95 S.Ct. 501, 42 L.Ed.2d 298 (1974). ’ Finally, even if Robbins were construed or" }, { "docid": "10495221", "title": "", "text": "by and unrestrained. He still had to be removed from the vehicle, searched and handcuffed. A weapon had just been found on one of appellant’s companions who also attempted to hide some other contraband. Under these circumstances there was still danger that the appellant might gain access to the plastic bag to seize a weapon or destroy evidence. United States v. Portillo, 633 F.2d 1313, 1320 (9th Cir. 1980). Cf. United States v. Chadwick, supra. In such a situation we are not inclined to enter into the speculative review of the “quick ad hoc judgment” of a police officer. United States v. Robinson, supra 414 U.S. at 234-36, 94 S.Ct. at 476-77. The immediate search of the plastic bag incident to the arrest of the appellant was lawful. See Draper v. United States, supra. The decision of the United States Army Court of Military Review is affirmed. . A second issue was granted for review in this case. 7 M.J. 249 (1979). It involved the question of whether a laboratory report was admissible against the appellant to establish the identity of the charged substance. This issue was decided contrary to the appellant’s position in the subsequent case of United States v. Strangstalien, 7 M.J. 225 (C.M.A.1979), and need not detain us further. . It is unnecessary to determine in this case whether the military judge or the Court of Military Review was correct on the question of the appellant’s automatic standing to challenge these searches and seizures. See United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed. 619 (1980). Moreover, since the appellant’s trial in May 1978, the Supreme Court has abandoned a standing approach to these Fourth Amendment issues and required instead that a petitioner demonstrate that he had a legitimate “expectation of privacy in the area searched” as well as the property seized. Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 2560-62, 65 L.Ed.2d 633 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). At the present time, the pertinent inquiry would be whether the appellant had a reasonable" }, { "docid": "4026605", "title": "", "text": "passengers in the car. All three were later charged with criminal possession of a weapon. Officer Walsh later learned that both Buicks were purchased several days apart by the same individual from a Bronx dealership, but the officer was unable to “trace” the owner. B. Defendant Aulicino Has Failed to Carry His Burden to Demonstrate Standing to Challenge the Warrant-less Search of the Automobile in Which He Was Riding Defendant Aulicino’s motion to suppress the evidence seized from the second Buick automobile must be denied, because he has failed to establish that he has standing to challenge the contested search. It is well established that in order to challenge a search, a defendant must submit an affidavit from someone with personal knowledge demonstrating sufficient facts to show that he had a legally cognizable privacy interest in the searched premises at the time of the search. See Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980); United States v. Paulino, 850 F.2d 93, 96 (2d Cir. 1988), cert. denied, 490 U.S. 1052, 109 S.Ct. 1967, 104 L.Ed.2d 435 (1989); United States v. Arboleda, 633 F.2d 985, 991 (2d Cir.1980), cert. denied, 450 U.S. 917, 101 S.Ct. 1362, 67 L.Ed.2d 343 (1981). Aulicino does not claim any property or proprietary interest in the vehicle seized. He does not claim that he owned the vehicle, or had the permission of the owner to use it. A showing of standing is required under the law because a “person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s premises or property has not had any of his Fourth Amendment rights infringed.” Rakas v. Illinois, 439 U.S. 128, 134, 99 S.Ct. 421, 425, 58 L.Ed.2d 387 (1978). “Only a defendant whose own privacy has been invaded can exclude evidence taken during the invasion.” United States v. Saint Prix, 672 F.2d 1077, 1082 (2d Cir.), cert. denied, 456 U.S. 992, 102 S.Ct. 2274, 73" }, { "docid": "21037445", "title": "", "text": "search warrant failed to satisfy the particularity requirement of the Fourth Amendment, and that the manner in which the agents entered the premises violated the “knock and announce” requirement of 18 U.S.C. § 3109. The district court granted the defendants’ motions to suppress, and this appeal followed. II Whether a defendant has standing to contest the legality of a search presents a mixed question of fact and law. United States v. Singleton, 987 F.2d 1444, 1447 (9th Cir.1993). We review de novo the district court’s ultimate legal conclusion regarding standing, but the court’s findings of fact underlying that conclusion are reviewed for clear error. Id. A defendant has standing to challenge the legality of a search on Fourth Amendment grounds only if he has a “legitimate expectation of privacy” in the place searched. Rakas v. Illinois, 439 U.S. 128, 148, 99 S.Ct. 421, 433, 58 L.Ed.2d 387 (1978). The defendant bears the burden of establishing his legitimate expectation of privacy. Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980). The district court concluded that Zermeno had met his burden of establishing standing. As to Silva-Sosa, the district court stated “[h]e has been charged with possession in these matters, and he’s entitled to standing.” Silva-Sosa concedes that a mere possessory interest in the item seized does not by itself confer standing to challenge the search of the place in which the item was found. Legal “possession of a seized good [is not] a substitute for a factual finding that the owner of the good had a legitimate expectation of privacy in the area searched.” United States v. Salvucci, 448 U.S. 83, 92, 100 S.Ct. 2547, 2553, 65 L.Ed.2d 619 (1980). Thus, Silva-Sosa did not have standing simply because he was charged with a possesso-ry crime. Silva-Sosa contends, however, that he is entitled to standing based on a theory of estoppel. He contends the government’s theory of the case was that he frequented the Adrienne Street house and stored contraband there. He argues the government should not now be permitted to take the contradictory position that" }, { "docid": "12529071", "title": "", "text": "99 S.Ct. 421, 424-25, 58 L.Ed.2d 387 (1978); United States v. Donahue, 764 F.3d 293, 298-99 (3d Cir.2014). To demonstrate that he had a subjective expectation of privacy, the defendant must show that he “took normal precautions to maintain his privacy.” Rawlings v. Kentucky, 448 U.S. 98, 105, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980). In light of these principles, “[i]t is clear that a passenger in a car that he neither owns nor leases typically has no standing to challenge a search of the car.” United States v. Baker, 221 F.3d 438, 441-42 (3d Cir.2000) (citing Rakas, 439 U.S. at 133-34, 99 S.Ct. at 424-25). As the Supreme Court explained, “[a] person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s premises or property has not had any of his Fourth Amendment rights infringed.” Rakas, 439 U.S. at 134, 99 S.Ct. at 425. Burnett has failed to demonstrate that he had a reasonable expectation of privacy in the Honda or its contents. Adams, the owner of the Honda, did not know Burnett, and she did not give him permission to occupy her car. Hankerson borrowed the car on the morning of the robbery and picked Burnett up on the way to Poland Jewelers. To the extent that Burnett concedes he was a passenger in the Honda on the ride to and from the robbery, it is clear that he and Hankerson abandoned the car on a dead-end street with the stolen loot and other items still in its trunk. As we have indicated, Burnett attempts to defend his claim that he had a privacy interest in the Honda and its contents by arguing that he ceased being a “passenger” when he walked away from the car, so the line of cases addressing a passenger’s expectation of privacy is inapplicable here. But even adopting his argument that he ceased being a “passenger” once he left the car, it does not follow that, by leaving the car, he acquired an otherwise nonexistent privacy interest in" }, { "docid": "14049442", "title": "", "text": "was found in a box in the backseat. The Government challenges Hall’s standing to seek suppression of the marijuana seized from the car because he has not claimed that the marijuana was his and because he did not have a reasonable expectation of privacy in the car. For evidence to be suppressed, it is not sufficient for a criminal defendant to merely claim prejudice from the introduction of evidence seized in violation of the Fourth Amendment. The defendant must himself have been a victim of the illegal search. Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); United States v. Haqq, 278 F.3d 44, 47 (2d Cir.2002); see generally 3 Wayne R. LaFave et al., Criminal Procedure § 9.1(a). For the defendant to be a “victim” of the illegal search, it must have intruded on his own reasonable expectation of privacy. See Rakas, 439 U.S. at 143, 99 S.Ct. 421 (“[C]apacity to claim the protection of the Fourth Amendment depends ... upon whether the person who claim the protection of the Amendment has a legitimate expectation of privacy in the invaded place.”). The defendant bears the burden of proving that he had a legitimate expectation of privacy. Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980). In Rakas the Supreme Court held that a car passenger could not assert the protection of the Fourth Amendment against the seizure of evidence he did not own from a car in which he was merely a passenger. Id. at 139-40, 99 S.Ct. 421; see also Minnesota v. Carter, 525 U.S. 83, 87-88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) (discussing Rakas); 3 LaFave, supra at § 9.1(d) (discussing whether passengers have standing to move to suppress evidence seized during a search of the car). The Supreme Court extended Rakas in Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980). In Rawlings, the Court held that even where the defendant owned the property seized, he must demonstrate a reasonable expectation of privacy in the location searched. Id. at 105-06, 100" }, { "docid": "23036669", "title": "", "text": "claim; (2) the warrant was sufficiently particular in specifying the items to be seized; (3) the warrant was supported by probable cause; and (4) even if the warrant is found upon review to be invalid, reliance on the warrant was “objectively reasonable” and the evidence should not be suppressed under the reasoning of Leon. II. Standing In Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) the Supreme Court abandoned a separate analysis of “standing” for claims of violations of the fourth amendment in favor of an analysis focusing on the “substantive question of whether or not the proponent of the motion to suppress has had his own Fourth Amendment rights infringed by the search and seizure which he seeks to challenge.” Id. at 133, 99 S.Ct. at 425. See Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980); United States v. Hansen, 652 F.2d 1374, 1379 n. 2 (10th Cir.1981). “Whether a person has standing to contest a search on fourth amendment grounds turns on whether the person had a legitimate expectation of privacy in the area searched, not merely in the items seized.” United States v. Skowronski, 827 F.2d 1414, 1418 (10th Cir.1987) (citing United States v. Salvucci, 448 U.S. 83, 93, 100 S.Ct. 2547, 2554, 65 L.Ed.2d 619 (1980)). Determining whether a legitimate or justifiable expectation of privacy exists, in turn, involves two inquiries. First, the claimant must show a subjective expectation of privacy in the area searched, and second, that expectation must be one that “society is prepared to recognize as ‘reasonable.’ ” Hudson v. Palmer, 468 U.S. 517, 525, 104 S.Ct. 3194, 3199, 82 L.Ed.2d 393 (1984) (quoting in part Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring)); see also United States v. Owens, 782 F.2d 146, 150 (10th Cir.1986). The “ultimate question” is “whether one’s claim to privacy from government intrusion is reasonable in light of all the surrounding circumstances.” Rakas, 439 U.S. at 152, 99 S.Ct. at 435 (Powell, J., concurring). Finally," }, { "docid": "9930329", "title": "", "text": "a fruit of the search. The District Judge denied the motion without stating any reasons. The Nadlers did not request findings or any clarification. The fact that the Government did not specifically raise the expectation of privacy issue during the course of the hearing on the motions to suppress is of no consequence. It was the Nadlers who had “the burden of proving not only that the search ... was illegal, but also that [they] had a legitimate expectation of privacy in [the area searched].” Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980). See also Rakas v. Illinois, 439 U.S. 128, 131 n. 1, 99 S.Ct. 421, 424 n. 1, 58 L.Ed.2d 387 (1978); Simmons v. United States, 390 U.S. 377, 389-90, 88 S.Ct. 967, 973, 19 L.Ed.2d 1247 (1968). The supplemental briefings by the Nadlers rely on the evidentiary record made before the District Court to support their claim that they had a legitimate expectation of privacy which was invaded by the search. They make no offer of proof of additional evidence to augment the record on this issue. “Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.” Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 966, 22 L.Ed.2d 176 (1969). Only defendants whose personal Fourth Amendment rights have been violated may benefit from the exclusionary rule’s protections. Rakas v. Illinois, 439 U.S. at 134, 99 S.Ct. at 425. To establish that his Fourth Amendment rights have been violated by an unlawful search, a defendant must show that he had a legitimate “expectation of privacy in the area searched.” United States v. Salvucci, 448 U.S. 83, 93, 100 S.Ct. 2547, 2553, 65 L.Ed.2d 619 (1980) (emphasis added). The inquiry focuses on the place searched, and while the defendant’s possessory interests in either the premises or the seized goods are relevant, they are not dispositive. -The Supreme Court has “emphatically rejected the notion that ‘arcane’ concepts of property law ought to control the ability to claim the protections of the Fourth Amendment.”" }, { "docid": "4109201", "title": "", "text": "Downing seek suppression of statements made by them, together with the fruits of such statements, because the statements are inadmissible under the doctrine of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Defendants’ Fourth Amendment challenges focus on: (1) Agent Cunniff’s observation of the license number on the Georgia Jeep during his warrantless entry onto Lot # 3 on the night of June 2-3; (2) Cunniff’s warrantless stop and search of the Georgia Jeep and arrest of Case and Hubbard on the evening of June 3; (3) the officers’ warrantless entry and search of Lot # 3, seizure of the SUNSHINE and the vehicles found there, and arrest of Storey, Standley, Duke and Downing; and (4) allegedly false statements and material omissions in Steadman’s affidavit in support of the search warrant for Lot # 3. Defendants Case and Downing assert that their Fifth Amendment rights were violated because the officers continued to question them after they had been given Miranda warnings and had invoked their right to remain silent. The Court first will consider which, if any, of the defendants have standing to raise their various challenges. The Court then will treat separately each of defendants’ contentions. A. The Defendants’ Standing In order to contest a search or seizure on Fourth Amendment grounds, a defendant has the burden of establishing that he had a legitimate and reasonable expectation of privacy in the premises searched or the property seized. Rawlings v. Kentucky, 448 U.S. 98,104-105,100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980); Rakas v. Illinois, 439 U.S. 128, 130-31 n.1, 139, 148-49, 99 S.Ct. 421, 423 n.1, 433, 58 L.Ed.2d 387 (1978). See United States v. Salvucci, 448 U.S. 83, 91, 93, 100 S.Ct. 2547, 2552 and n.6, 2554 n.7, 65 L.Ed.2d 619 (1980). Although all the defendants have joined in a single omnibus motion to suppress, not all have the requisite standing to raise Fourth Amendment objections to each of the searches and seizures of which they complain. Fourth Amendment rights may not be vicariously asserted. Alderman v. United States, 394 U.S. 165, 174, 89" }, { "docid": "804454", "title": "", "text": "the defendants occurred on March 21. The Supreme Court has repeatedly emphasized that “a court may not exclude evidence under the Fourth Amendment unless it finds that an unlawful search or seizure violated the defendant’s own constitutional rights.” United States v. Payner, -U.S.-,-, 100 S.Ct. 2439, 2442, 65 L.Ed.2d 468 (1980). See Rakas v. Illinois, 439 U.S. 128, 133-140, 99 S.Ct. 421, 425-429, 58 L.Ed.2d 387 (1978). The Court in United States v. Payner, supra 100 S.Ct. at 2442, stated that the defendant’s Fourth Amendment rights are violated only when the challenged conduct invaded his legitimate expectation of privacy rather than that of a third party. In United States v. Salvucci, - U.S. -, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980), the Supreme Court abandoned the rule of automatic standing, which permitted a defendant charged with a possessory offense to challenge the legality of a search without claiming possession of evidence illegally seized. In order to determine whether a defendant has standing, a court must assess not merely whether the defendant had a possessory interest in the items seized, but whether he had an expectation of privacy in the area searched. Id. at 2553. In Salvucci, the Court held that a defendant did not have standing to challenge the legality of the seizure of stolen property from his mother’s apartment. In Rawlings v. Kentucky, supra,-U.S. -, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980), the police seized illegal drugs belonging to the defendant from a woman’s handbag. Nevertheless the Court held that the defendant’s own Fourth Amendment rights had not been violated since he had no legitimate expectation of privacy in the purse. The defendants do not satisfy either branch of the Rakas test for assertion of a Fourth Amendment right. First, they have claimed no property interest in the seized marijuana and thus cannot claim to be aggrieved by its seizure. United States v. Salvucci, supra. Second, the defendants have not demonstrated a reasonable expectation of privacy in the hold of the JOSE GREGORIO. The factors relevant to determination of a legitimate expectation of privacy include the right to exclude" }, { "docid": "3240716", "title": "", "text": "Fifth Amendment in response to all questions. Defense counsel never made a specific proffer of what Herbst’s testimony would disclose. Appellants Herbst, McGowan and Griffin all appeal the denial of their motion to suppress; McGowan and Griffin also appeal the district court’s failure to grant use immunity to Herbst. The Search It is well settled that McGowan and Griffin cannot challenge the constitutionality of the search of co-defendant Herbst because they failed to prove any legitimate expectation of privacy regarding a personal search of Herbst. Rawlings v. Kentucky, 448 U.S. 98, 106, 100 S.Ct. 2556, 2562, 65 L.Ed.2d 633 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); United States v. Evans, 572 F.2d 455, 486 (5th Cir.), cert. denied, 439 U.S. 870, 99 S.Ct. 200, 58 L.Ed.2d 182 (1978). McGowan and Griffin were both charged with possession of the cocaine found taped to Herbst’s leg; they could claim the benefit of the exclusionary rule only if their Fourth Amendment rights were in fact violated by the agents’ search of Herbst. Rakas v. Illinois, supra, 439 U.S. at 131-34, 99 S.Ct. at 424-26. McGowan adopted Herbst’s pretrial motion to suppress and further alleged that he had automatic standing to challenge Herbst’s search since he was charged with possession.1 ** Moreover, McGowan contends on appeal that his Fourth Amendment rights were violated because the DEA agents, operating only on the basis of certain manifestations of the drug courier profile, lacked probable cause to stop, question and search him or his co-defendants. Our review of the record reveals that the initial investigative stop of appellants McGowan and Griffin by DEA Agents Mathewson and Chapman did not violate their constitutional rights. It is clear that, if the agents had searched or seized McGowan and Griffin without their consent solely on the basis of the information in the agents’ possession prior to the stop, McGowan’s argument would have merit. Reid v. Georgia, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980) (per curiam) held that profile characteristics alone will not give rise to the requisite reasonable suspicion necessary" }, { "docid": "19375332", "title": "", "text": "seizure and therefore cannot be used to justify it. Contrast Rawlings v. Kentucky, 448 U.S. 98, 111 & n. 6, 100 S.Ct. 2556, 2564 & n. 6, 65 L.Ed.2d 633 (1980) (noting that search was valid because of probable cause to arrest, and emphasizing that “[t]he fruits of the search ... were ... not necessary to support probable cause to arrest”). We conclude that the search of Manikowski violated the fourth amendment, and the fruits of the search were not admissible against him. Ill Whether the evidence seized as a result of the illegal search of Manikowski may nevertheless be used against Brown is more difficult. Although it may seem anomalous if the evidence is inadmissible against Manikowski, who actually carried the cocaine, but admissible against Brown, who did not, it is established that fourth amendment rights are personal, and therefore cannot be asserted vicariously. See, e.g., Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 967, 22 L.Ed.2d 176 (1969). The government argues that Brown lacks standing to challenge the constitutionality of the search and seizure because he was not the subject of the search. Treating the question as one of standing, an approach the Supreme Court once employed, see Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), invites the conclusion that one cannot challenge the legality of a search directed at another. The notion of “standing” to invoke the fourth amendment, implying that “targets” of searches are entitled to challenge the searches’ constitutionality, was rejected by the Court, see Rakas v. Illinois, 439 U.S. 128, 132-38, 99 S.Ct. 421, 424-27, 58 L.Ed.2d 387 (1978), however, in favor of the concept that fourth amendment rights are personal, see id. at 138-40, 99 S.Ct. at 427-28; the proper question is whether one’s own rights have been violated, a question of substantive fourth amendment law rather than one of procedure. As the Court has made clear, that question turns on whether one has a “legitimate expectation of privacy” in the place searched. Rawlings, 448 U.S. at 104-06, 100 S.Ct. at 2561-62; United States" }, { "docid": "19709092", "title": "", "text": "Wiretapping. Plaintiff alleges that Wilentz authorized warrantless wiretaps of the telephones of “defense personnel and others.” Second Amended Complaint ¶ 60-10. The only allegation which approaches any detail at all is the statement that the police “tapp[ed] the telephone of a defense investigator and intercepted] conversations between he [sic], his spouse, and others.” Id. ¶ 33-4(2). Plaintiff asserts that the alleged wiretapping violated Hauptmann’s first, fourth, fifth, sixth and fourteenth amendment rights. The claim based on a fourth amendment violation is the most plausible of these; it must be dismissed,, however, for a number of reasons. First, plaintiff lacks standing to assert this claim. • Fourth amendment rights are personal rights that may not be vicariously asserted. Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 425, 58 L.Ed.2d 387 (1978); Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 967, 22 L.Ed.2d 176 (1969). In Rakas, supra, the Supreme Court unequivocally rejected the argument that any criminal defendant at whom a search was directed would have standing to contest the validity of the search; the Court held, instead, that a person claiming the protection of the fourth amendment must have a “legitimate expectation of privacy” in the invaded place. 439 U.S. at 143, 99 S.Ct. at 430. See also United States v. Knotts, - U.S. -, 103 S.Ct. 1081, 1085, 75 L.Ed.2d 55 (1983); Rawlings v. Kentucky, 448 U.S. 98, 104-06, 100 S.Ct. 2556, 2561-62, 65 L.Ed.2d 633 (1980); United States v. Chadwick, 433 U.S. 1, 7, 97 S.Ct. 2476, 2481, 53 L.Ed.2d 538 (1977); Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 512, 19 L.Ed.2d 576 (1967). Even assuming that plaintiff could assert Hauptmann’s rights, supra n. 7, she does not allege that Hauptmann’s own telephone conversations were monitored, but only those of an unnamed defense investigator with unnamed “others.” Hauptmann would have had no expectation of privacy in the investigator’s telephone, and plaintiff cannot assert the defense investigator’s rights merely because her husband may have been the target of the surveillance of conversations between the investigator and third parties. Assuming arguendo" }, { "docid": "12529070", "title": "", "text": "the same legal rule and the same facts as the argument presented in the district court). In the District Court, Burnett’s counsel, treating Burnett as a passenger, actually conceded that Burnett lacked standing under current law. And, while he opined that this was “fundamentally unfair,” he recognized that the Court was bound by this precedent. Thus, Burnett waived his claim that he had a privacy interest in the Honda and/or the packages it contained on any theory. That said, even if Burnett had preserved his “abandonment” claim, he would not have demonstrated that he had standing to challenge the search of the vehicle. An individual challenging a search has the burden of establishing that he had a reasonable expectation of privacy in the property searched and the item seized. Minnesota v. Olson, 495 U.S. 91, 95-97, 110 S.Ct. 1684, 1687-88, 109 L.Ed.2d 85 (1990). A person must show both that he had a subjective expectation of privacy in the area searched and that his expectation was objectively reasonable. Rakas v. Illinois, 439 U.S. 128, 143-44, 99 S.Ct. 421, 424-25, 58 L.Ed.2d 387 (1978); United States v. Donahue, 764 F.3d 293, 298-99 (3d Cir.2014). To demonstrate that he had a subjective expectation of privacy, the defendant must show that he “took normal precautions to maintain his privacy.” Rawlings v. Kentucky, 448 U.S. 98, 105, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980). In light of these principles, “[i]t is clear that a passenger in a car that he neither owns nor leases typically has no standing to challenge a search of the car.” United States v. Baker, 221 F.3d 438, 441-42 (3d Cir.2000) (citing Rakas, 439 U.S. at 133-34, 99 S.Ct. at 424-25). As the Supreme Court explained, “[a] person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s premises or property has not had any of his Fourth Amendment rights infringed.” Rakas, 439 U.S. at 134, 99 S.Ct. at 425. Burnett has failed to demonstrate that he had a reasonable expectation of privacy in the" }, { "docid": "23403290", "title": "", "text": "12,000 doses of heroin did not intend to use the supply merely for personal euphoria. If, therefore, the warrantless post-delivery search was constitutionally proper and the evidence derived from it was properly admitted, the essential elements of the crime were proved. III. Search of the Package Richards does not challenge the admissibility of evidence obtained from the initial search of the package in New York and the field test that first disclosed its contents. He stipulated that the package contained heroin when searched in New York and that the chain of custody between New York and Miami Springs was complete. Because the initial test did not establish the quantity of heroin in the package, however, the second search was crucial to proving his intent to distribute. A. Standing to Assert Fourth Amendment Rights The question of Richards’ standing to contest the search was not raised in the court below. On appeal the government argued proleptically that the Supreme Court decision in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), foretold the coming demise of the concept of “automatic standing” for possessory crimes. In United States v. Salvucci, -U.S.-, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980), the Court followed the intimations of Rakas v. Illinois, 439 U.S. at 135 n.4, 99 S.Ct. at 426 n.4, 58 L.Ed.2d at 396 n.4, and Brown v. United States, 411 U.S. 223, 229, 93 S.Ct. 1565, 1568-69, 36 L.Ed.2d 208, 214 (1973), and held that automatic standing does not justify the assertion of fourth amendment protection. Fourth amendment protection is accorded only to a person who has a privacy interest in the area searched, Rawlings v. Kentucky,-U.S.-, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980), Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), a rubric adopted from a phrase used in Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 512, 19 L.Ed.2d 576, 583 (1967). Instead of conducting a separate inquiry into standing, we now focus directly on whether the defendant possesses a legitimate expectation of privacy in the area searched. Rawlings v." }, { "docid": "4109202", "title": "", "text": "Court first will consider which, if any, of the defendants have standing to raise their various challenges. The Court then will treat separately each of defendants’ contentions. A. The Defendants’ Standing In order to contest a search or seizure on Fourth Amendment grounds, a defendant has the burden of establishing that he had a legitimate and reasonable expectation of privacy in the premises searched or the property seized. Rawlings v. Kentucky, 448 U.S. 98,104-105,100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980); Rakas v. Illinois, 439 U.S. 128, 130-31 n.1, 139, 148-49, 99 S.Ct. 421, 423 n.1, 433, 58 L.Ed.2d 387 (1978). See United States v. Salvucci, 448 U.S. 83, 91, 93, 100 S.Ct. 2547, 2552 and n.6, 2554 n.7, 65 L.Ed.2d 619 (1980). Although all the defendants have joined in a single omnibus motion to suppress, not all have the requisite standing to raise Fourth Amendment objections to each of the searches and seizures of which they complain. Fourth Amendment rights may not be vicariously asserted. Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 966, 22 L.Ed.2d 176 (1969). Like Fourth Amendment rights, Fifth Amendment rights also are personal and may not be vicariously asserted. Couch v. United States, 409 U.S. 322, 328-29, 93 S.Ct. 611, 615, 34 L.Ed.2d 548 (1973). See Fisher v. United States, 425 U.S. 391, 398-401, 96 S.Ct. 1569, 1574, 48 L.Ed.2d 39 (1976). Applying the foregoing principles, the Court concludes that no defendant has standing to challenge Agent Cunniff’s observation of the license plate of the Georgia Jeep parked on the driveway of Lot # 3 on the night of June 2-3; that only defendants Case and Hubbard have standing to contest Cunniff’s stop and search of the Georgia Jeep on the evening of June 3; that only defendants Storey, Standley, Duke and Downing have standing to object to the officers’ entry into and search of Lot # 3 on the night of June 3; that no defendant, other than Downing (the owner of the Cessna airplane), Standley (the owner of the orange leather travel bag found in a garbage bag), Duke" } ]

[ { "docid": "16018068", "title": "", "text": "shall be in force in said Choctaw and Chickasaw Nations,” and, further (§ 73, p. 657), that \"this agreement shall be binding upon the United States and upon the Choctaw and Chickasaw Nations and all the Choctaws and Chickasaws, when ratified by Congress and by a majority of the whole number of votes cast by the legal voters of the Choctaw and Chickasaw Tribes in the manner following: .. . .” It is conceded by plaintiffs in error that an act of Congress can supersede a prior treaty, but they insist that it is well settled “that Congress, is without power to change a contract or agreement for a valuable consideration with an individual Indian allottee.” Choate v. Trapp, 224 U. S. 665, and Jones v. Meehan, 175 U. S. 1, are cited, and incidentally Tiger v. Western Investment Co., 221 U. S. 286, and Mullen v. United States, 224 U. S. 448. The cases do not apply. It has often been decided that the Indians are wards of the Nation and that Congress has plenary control over tribal relations and property and that this power continues after the Indians are made citizens, and may be exercised as to restrictions upon alienation. Tiger v. Western Investment Co., supra. Against this ruling Choate v. Trapp does not militate. In the latter case it was decided that taxation could not be imposed upon allotted land a patent to which was issued under an act of Congress containing a provision “ that the land should be non-taxable” for a limited time; and, excluding the application of the Tiger Case, it was said, p. 673, that exemption from taxation “and non-alienability were two separate and distinct objects.” And further, “Oné conveyed a right and the other imposed a limitation.” The power to do the latter was declared, and it was said “the right to remove the restriction [limitation upon alienation] was in pursuance of the power under; which Congress could legislate as to the status of the ward and lengthen or shorten the period of disability. But the provision that the land should be" } ]

[ { "docid": "6771140", "title": "", "text": "United States are protected by the fifth amendment to the Constitution against deprivation of property, life, or liberty without due process of law. No act of Congress or legislative fiat constitutes due process of law, whereby a vested right in or title to property may be either seriously impaired or destroyed. Choate v. Trapp, 224 U. S. 665, 670, 677, 32 Sup. Ct. 565, 56 L. Ed. 941; Jones v. Meehan, 175 U. S. 1, 20 Sup. Ct. 1, 44 L. Ed. 49; In re Heff, 197 U. S. 488, 504, 25 Sup. Ct. 506, 49 L. Ed. 848; Cherokee Nation v. Hitchcock, 187 U. S. 294, 307, 23 Sup. Ct. 115, 47 L. Ed. 183; Jackson v. Goodell, 20 Johns. (N. Y.) 188; Lowry v. Weaver, 4 McLean, 82, Fed. Cas. No. 8,584; Whirlwind v. Von der Ahe, 67 Mo. App. 628; Taylor v. Drew, 21 Ark. 485, 487. Second. Except in political cases, and this case is not a political case, Congress has no power under the Constitution of the United 'States to affect rights or titles granted by a treaty, or to determine what rights were granted thereby. Nor may the character of the right or interest granted to Clarissa Chase by the treaty of 1865 be determined by the opinion of Congress that that right or interest was revocable and negligible, though it be evidenced by its declaration in the act of 1882 that after the new allotments were made under that act the certificates of right and title issued by the Commissioner of Indian Affairs under the treaty of 1865 should be null and void. The construction-of treaties and the determination of the character and extent of the rights and titles granted under them is a judicial, and not a legislative function, and by the Constitution the power is granted, and the duty, which may not be renounced, is imposed upon, the courts to form and enforce their independent judgments upoj> these questions, although these judgments may differ from the opinions of the Congress or its members. Jones v. Meehan, 175 U. S. 1-32, 20" }, { "docid": "4705629", "title": "", "text": "of the nation, and dependent wholly upon its protection and good faith. This rule of construction has been recognized, without exception, for more than a hundred years * * (Choate v. Trapp, 1912, 224 U.S. 665, 675, 32 S. Ct. 565, 569, 56 L.Ed. 941. See also Starr v. Long Jim, 1913, 227 U.S. 613, 623, 33 S.Ct. 358, 57 L.Ed. 670; Jones v. Meehan, 1899, 175 U.S. 1, 11, 20 S.Ct. 1, 44 L.Ed. 49. The foregoing equitable principles foundationing this suit in equity, with a guardian and ward relationship attaching thereto, are set out in order that there cannot be any misunderstanding about the equitable rules of jurisprudence that must be applied by this Chancellor to a solution of the problems involved herein; and the Government must be compelled to act toward its Indian wards not merely bona fide but cum uberrima fide. As the court views the issues in this case, there is but one question of fact and three principles of law to be determined by the court, and they will be set out for a logical solution, as follows: (1) Did the Indians fulfill all of the conditions exacted of them by the Acts of Congress as conditions precedent to entitle them to allotment certificates and trust patents; (2) Was the issuance of allotment certificates and trust patents, on the part of the Secretary of the Interior, after the Indians had complied with all of the conditions precedent laid down by the Acts of Congress, mandatory and a ministerial act or purely discretionary and uncontrolled by Congress ; (3) Did the right of a deceased Indian to an allotment certificate and a trust patent to the land allotted to him descend to his heirs at law and next of kin; (4) Will a subsequent act of Congress, or the Indian Reorganization Act of June 18th, 1934, 48 Stat. 984, 25 U.S.C.A. § 461, et seq., vitiate a vested right? The answers to these questions should determine the correct solution to the problem in this case, and each question will now be taken up by the" }, { "docid": "13152561", "title": "", "text": "the land to the Indians in fee, discharged of the trust and free from all charge and incumbrance whatsoever. If there is doubt as to the meaning of the trust patent, the doubt should be resolved in favor of the Indians. Choate v. Trapp, 224 U. S. 665, 32 Sup. Ct. 565, 56 L. Ed. 941. In that case the court said: “Doubtful expressions, instead of being resolved in favor of tbe United States, are to be resolved in favor of a weak and defenseless people, wbo are wards of tbe nation, and dependent wholly upon its protection and good faith.” There can be no serious question of the authority of Congress to remove restrictions upon the alienation of the lands .of allottees with or without the latter’s consent. Williams v. Johnson, 239 U. S. 414, 36 Sup. Ct. 150, 60 L. Ed. 358. But to remove restriction upon alienation is a different thing from depriving Indian allottees of the immunity from taxation conferred upon them by their trust patents. The Indians were guaranteed nontaxable land for the period of 25 years after the issuance of the trust patents. In Choate v. Trapp the court gave consideration to the fact that the Indians were offered the allotments on the conditions proposed, and that by accepting the terms and relinquishing their claims they furnished a consideration which was sufficient to entitle them to enforce whatever rights were conferred. One of those rights was exemption from taxation. The court held that the provision that the land should be nontaxable was a property right, which Congress undoubtedly had the power to grant. So in the present case the right of the Indians to have their allotments held in trust by the United States free from taxation by local authorities for a period of 25 years was a valuable right. Once vested as it was, it could only be divested by due process of law. The provision of the Act of May 8, 1906, 34 Stat. 182, authorizing the Secretary of the Interior, “whenever he shall be satisfied that any Indian allottee is competent" }, { "docid": "18950556", "title": "", "text": "must regard it as an ultimatum. With the president’s approval, however, I will add two hundred thousand dollars to the consideration money on that account.’ To this letter the Russian minister made reply that he believed himself ‘authorized to accede literally to this request on the conditions indicated’, in the note of the secretary.” We agree with the appellee that “by no stretch of the imagination can [original] Indian title be considered the equivalent of private individual property.” In Cherokee Nation v. Hitchcock, 187 U.S. 294, 307, 23 S.Ct. 115, 120, 47 L.Ed. 183, the Court said: “Whatever title the Indians have is in the tribe, and not in the individuals, although held by the tribe for the common use and equal benefit of all the members.” See also Choate v. Trapp, 224 U.S. 665, 667, 32 S.Ct. 565, 56 L.Ed. 941. It seems quite clear, therefore, that whatever “possession” the Tlingit Indians had “from time immemorial prior to” the year 1867 was a tribal and not an individual right, and did not come within the classification of the excepted “private individual property” specified in the Russian treaty. Consequently, the Tlingits’ “original Indian title” to the tidelands in question was extinguished by that state paper. ■Nevertheless, the appellants are not without a right of possession in the tidelands that the appellee has sought to have condemned. This right has been repeatedly accorded the Congressional “recognition\" on which the Government was vainly insisting in the Tillamook case, supra, as a sine qua non of Indian title. That insistence has been reaffirmed by the appellee in the instant case. On May 17, 1884, there was approved “An act providing a civil government for Alaska,” 23 Stat. 24. A proviso in § 8 of that act sets forth: “Provided, That the Indians or other persons in said district [territory] shall not be disturbed in the possession of any lands actually in their use or occupation or now claimed by them but the terms under which such persons may acquire title to such lands is reserved for future legislation by Congress.” No such future" }, { "docid": "4173169", "title": "", "text": "its conclusions. It is pertinent to remember that the sovereign State of Oklahoma has plenary power to tax all property within its domain, unless specifically restrained by force of Federal law. Indians residing in Oklahoma are citizens of that State, and they are amenable to its civil and criminal laws. Their property, unless exempt, is subject to taxation in the same manner as property belonging to other citizens of that State. Matter of Heff, 197 U.S. 488, 25 S.Ct. 506, 49 L.Ed. 848; Goudy v. Meath, 203 U.S. 146, 27 S.Ct. 48, 51 L.Ed. 130. After the effective date of the Act of May 10, 1928, the allottee, Lucinda Amos, designated one hundred and sixty acres of her allotment as tax exempt, in pursuance of Section 4 of the Act, and the remainder of the land, which is involved here, became subject to taxation by the State of Oklahoma after April 26, 1931, and was accordingly placed upon the tax rolls of McClain County prior to her death on June 4, 1932. In other words, the lands involved here had attained a taxable status at the time of her death in virtue of the 1928 Act, and the lands therefore descended to her heirs subject to taxation by the State of Oklahoma, under and in accordance with the laws of that State. There is no contractual right to tax immunity — no treaty obligation, or Federal law to respect. Cf. Worchester v. Georgia, 6 Pet. 515, 8 L.Ed. 483; Kansas Indians, 5 Wall. 737, 18 L.Ed. 667; New York Indians, 5 Wall. 761, 18 L.Ed. 708; Choate v, Trapp, 224 U.S. 665, 32 S.Ct. 565, 56 L.Ed. 941; Bryan County v. United States, 10 Cir., 123 F.2d 782. The power of the State of Oklahoma to subject these lands to taxation is conceded, only the power to enforce the tax under and in accordance with its laws is challenged here. There is nothing in the text or in the legislative history of the Act to indicate that Congress intended to retain any measure of control over the power of the" }, { "docid": "9741480", "title": "", "text": "vested, even it cannot alter. Williams v. Johnson, 239 U. S. 414, 420, 36 Sup. Ct. 150, 60 L. Ed. 358; Sizemore v. Brady, 235 U. S. 441, 449, 35 Sup. Ct. 135, 59 L. Ed. 308; Choate v. Trapp, 224 U. S. 665, 32 Sup. Ct. 565, 56 L. Ed. 941; English v. Richardson, 224 U. S. 680, 32 Sup. Ct. 571, 56 L. Ed. 949; Jones v. Meehan, 175 U. S. 1, 20 Sup. Ct. 1, 44 L. Ed. 49; Chase v. U. S., 222 Fed. 593, 596, 138 C. C. A. 117. Such property rights may result from agreements between the government and the Indian. Whether the transaction takes the form of 'a treaty or of a statute is immaterial; the important considerations are that there should be the essentials of a binding agreement between the government and the Indian and the resultant vesting of a property right in the Indian. That exemption of land from taxation is a property right is established. Choate v. Trapp, supra. That this Indian had taken possession of and was enjoying this land under such an exemption at the time the Clapp Amendment was passed is undisputed. Therefore, if this exemption came to him as a legal right, it had fully vested. It came as such legal right if it rested on the solid basis of a binding agreement. If there was such an agreement here, it is to be found in the terms of the Nelson Act, read in the light of attendant circumstances. These circumstances are revealed in the communication of the Interior Department recounting the negotiations between the Commissioners and these Indians (Doc. 247, published in volume 32, House Exec. Doc. 51st Cong. 1st. Sess). At the passage of that act, the Chippewa Indians were scattered* over several reservations in the state of Minnesota. Much of their land was held as tribal by different bands or communities while some was held in severalty. The Indians were in dire need from crop failures. Their condition generally was very unsatisfactory. Their reservations included some supposedly valuable mineral land and much" }, { "docid": "7492539", "title": "", "text": "Act is unconstitutional and any taxes assessed by its authority would therefore be invalid and so there never existed any taxes for the lessee to pay. The premise underlying appellants’ argument is that Indian' lands, as a matter of cessation, treaty and allotment rights, are entitled to immunity from any taxation, so long as they are held under trust patents. This proposition is said to be definitely established by Choate v. Trapp, 224 U.S. 665, 32 S.Ct. 565, 56 L.Ed. 941, as well as by cases in the Circuits, such as Morrow v. United States, 8 Cir., 243 F. 854; United States v. Benewah County, Idaho, 9 Cir., 290 F. 628; Board of Com’rs of Caddo County, Oklahoma v. United States, 10 Cir., 87 F.2d 55; United States v. Nez Perce County, Idaho, 9 Cir., 95 F.2d 232; and Glacier County, Montana v. United States, 9 Cir., 99 F.2d 733. The United States in turn argues inter alia that whatever vested right may have been created generally in favor of an Indian under a restricted trust allotment to the immunity of his land from taxation endures only for the initial period of such trust and does not as a matter of course carry over 'to a subsequent extension thereof (as here), unless it is made to do so by some provision of law or agreement existing in the particular situation; that in the case of the Winnebago allotments there was no such obligation by law or agreement as could be claimed to have carried over any original tax immunity to extensions made of the trust period, and hence the' only duty owed by the United States- to an allottee upon the making of an extension was to be in position upon its expiration and a termination of the trust to furnish the allottee with a fee title to the land, “free of all charge or incumbrance whatsoever,” 25 U.S.C.A. § 348, with which right of the allottee to a clear ' title the authorizing by the Brown-Stephens Act of non-lienable taxes could in no way interfere; that even if it" }, { "docid": "9344707", "title": "", "text": "Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498, 506, 106 S.Ct. 2039, 2044, 90 L.Ed.2d 490 (1986) (citing, among others, Rice v. Rehner, 463 U.S. 713, 732, 103 S.Ct. 3291, 3302-03, 77 L.Ed.2d 961 (1983)). Thus, courts do not always adopt the construction or interpretation put forth by an Indian tribe. See, for example, United States v. Cherokee Nation of Oklahoma, 480 U.S. 700, 107 S.Ct. 1487, 94 L.Ed.2d 704 (1987) (Federal navigational servitude is superior to Indian tribe’s title to river bed.). The Oneida Tribe argues it is entitled to a liberal, favorable construction or interpretation of the Act because (1) the term “lotto” as used in the Act is ambiguous, (2) the controversy is between the government and an Indian tribe, and (3) ambiguities in federal statutes dealing with Indian matters should be resolved in the Indians’ favor. In support of their argument the Oneida Tribe cites Choate v. Trapp, 224 U.S. 665, 32 S.Ct. 565, 56 L.Ed. 941 (1912). That Court stated: [I]n Jones v. Meehan, 175 U.S. 1[, 11, 20 S.Ct. 1, 5, 44 L.Ed. 49 (1899) ], it was held that “Indian treaties must be construed, not according to the technical meaning of their words, but in the sense in which they would naturally be understood by the Indians.” In view of the universality of this rule, Congress is conclusively presumed to have intended that the legislation under which the allotments were made to the Indians should be liberally construed in their favor in determining the rights granted to the Choctaws and Chiekasaws. Choate, 224 U.S. at 675, 32 S.Ct. at 569 (emphasis and bracketed matter added). Accordingly, it is the traditional, dictionary definition of “lotto” that would be naturally understood, not the technical usage of the term by the contemporary gaming-industry. This negates the Oneida Tribe’s complaint that the district court used “an outdated dictionary definition ... rather than the contemporary meaning of' the term as used in the gaming industry.” Both our use and the district court’s use of the dictionary definition of “lotto” fully comply with the principle enunciated in Choate." }, { "docid": "7492538", "title": "", "text": "without any need or room for interpretation, arid if in this situation an artificial interpretation could nevertheless have become binding through a mutual adoption, there was involved here no resolving of any dispute or recognition of some assumed performance ' position or o.ther equivalently' affecting circumstance that' might have, tended to give it such a significance. Appellants’ second contention, that no suit to recover the taxes involved could be maintained because the Brown-Stephens Act did not provide for such a remedy, calls for only a passing comment. The implied exclusiveness as a remedy of the means provided in tax statutes for collecting taxes is universally treated as having application only to the .actions of tax-collecting authorities. They do not prevent parties from making, agreements dealing with taxes as rental or other form of contract obligation and from being entitled to resort to the traditional remedies of the law for vindication of the rights created between them. These principles are too well established to require any further consideration. The final contention made is that the Brown-Stephens Act is unconstitutional and any taxes assessed by its authority would therefore be invalid and so there never existed any taxes for the lessee to pay. The premise underlying appellants’ argument is that Indian' lands, as a matter of cessation, treaty and allotment rights, are entitled to immunity from any taxation, so long as they are held under trust patents. This proposition is said to be definitely established by Choate v. Trapp, 224 U.S. 665, 32 S.Ct. 565, 56 L.Ed. 941, as well as by cases in the Circuits, such as Morrow v. United States, 8 Cir., 243 F. 854; United States v. Benewah County, Idaho, 9 Cir., 290 F. 628; Board of Com’rs of Caddo County, Oklahoma v. United States, 10 Cir., 87 F.2d 55; United States v. Nez Perce County, Idaho, 9 Cir., 95 F.2d 232; and Glacier County, Montana v. United States, 9 Cir., 99 F.2d 733. The United States in turn argues inter alia that whatever vested right may have been created generally in favor of an Indian under a restricted" }, { "docid": "13753061", "title": "", "text": "the result of a previous treaty with the Indians or the duty that was created in the United States by virtue of its superior bargain ing position in relation to a weak and defenseless people. In Lone Wolf v. Hitchcock, 1903, 187 U.S. 553, 566, 23 S.Ct. 216, 221, 47 L.Ed. 299, the Court said: “The power exists to abrogate the provisions of an Indian treaty, though presumably such power will be exercised only when circumstances arise which will not only justify the government in disregarding the stipulations of the treaty, but may demand, in the interest of the country and the Indians themselves, that it should do so. When, therefore, treaties were entered into between the United States and a tribe of Indians it was never doubted that the power to abrogate existed in Congress, and that in a contingency such power might be availed of from considerations of governmental policy, particularly if consistent with perfect good faith towards the Indians. * * * ” Treaties with the Indians are no different than any other public laws and are subject to contrary legislation by the Congress when it is felt to be in the interest of the country. By the same token, treaties with foreign countries can be breached by legislation from the Congress if it is deemed to be in the best interests of'the country. The Court further said in Lone Wolf v. Hitchcock, supra, 187 U.S. at pages 565, 566, 23 S.Ct. at page 221: «* * * Until the year 1871 the policy was pursued of dealing with the Indian tribes by means of treaties, and, of course, a moral obligation rested upon Congress to act in good faith in performing the stipulations entered into on its behalf. But, as with treaties made with foreign nations, [Chae Chan Ping v. U. S.] Chinese Exclusion Case, 130 U. S. 581, 600, 9 S.Ct. 623, 32 L.Ed. 1068, 1073, the legislative power might pass laws in conflict with treaties made with the Indians. [Citations omitted.] The Supreme Court, in Choate v. Trapp, 1912, 224 U.S. 665, 671, 32" }, { "docid": "9585189", "title": "", "text": "obliged to construe the treaty as including the southerly half of the lake. Choate v. Trapp, 224 U.S. 665, 32 S.Ct. 565, 56 L.Ed. 941; Winters v. United States, 207 U.S. 564, 577, 28 S. Ct. 207, 52 L.Ed. 340; United States v. Shoshone Tribe, 304 U.S. 111, 116, 58 S.Ct. 794, 82 L.Ed. 1213; Alaska Pacific Fisheries v. United States, 248 U. S. 78, 39 S.Ct. 40, 63 L.Ed. 138. The cases of Taylor v. United States, 9 Cir., 44 F.2d 531; United States v. Ashton, C.C., 170 F. 509, and Fish v. Wise, 10 Cir., 52 F.2d 544, are distinguishable. 43 U.S.C.A. § 931; Shively v. Bowl-by, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331; United States v. Pacheco, 2 Wall. 587, 17 L.Ed. 865. Act of February 8, 1887, 24 Stat. 390, as amended, by Act of May 8, 1906, 34 Stat. 182, 25 U.S.C.A. § 349. As contained in § 6 of the original Act, this provision read as follows: “Upon the completion of said allotments and the patenting of the lands to said allottees, each and every member of the respective bands or tribes of Indians to whom allotments have been made shall have the benefit of and be subject to the laws, both civil and criminal, of the State or Territory in which they may reside; and no Territory shall pass or enforce any law denying any such Indian within its jurisdiction the equal protection of the law.” In United States v. Boynton, 9 Cir., 53 F.2d 297, 298, involving lands in the Bummi Reservation, it was conceded that the allotee took only to the high water mark, and that “the purpose when the allotments were made was to reserve for the common use of the tribe the land over which the tides flowed.”" }, { "docid": "13753062", "title": "", "text": "other public laws and are subject to contrary legislation by the Congress when it is felt to be in the interest of the country. By the same token, treaties with foreign countries can be breached by legislation from the Congress if it is deemed to be in the best interests of'the country. The Court further said in Lone Wolf v. Hitchcock, supra, 187 U.S. at pages 565, 566, 23 S.Ct. at page 221: «* * * Until the year 1871 the policy was pursued of dealing with the Indian tribes by means of treaties, and, of course, a moral obligation rested upon Congress to act in good faith in performing the stipulations entered into on its behalf. But, as with treaties made with foreign nations, [Chae Chan Ping v. U. S.] Chinese Exclusion Case, 130 U. S. 581, 600, 9 S.Ct. 623, 32 L.Ed. 1068, 1073, the legislative power might pass laws in conflict with treaties made with the Indians. [Citations omitted.] The Supreme Court, in Choate v. Trapp, 1912, 224 U.S. 665, 671, 32 S.Ct. 565, 567, 56 L.Ed. 941, while speaking on this subject, stated as follows: “ * * * the plenary power of Congress over the Indian Tribes and tribal property cannot be limited by treaties so as to prevent repeal or amendment by a later statute. The Tribes have been regarded as dependent nations, and treaties with them have been looked upon not as contracts, but as public laws which could be abrogated at the will of the United States.” The state of the law being thus, the fact that the defendant did not secure the required 75 percent of the male adult signatures on the 1876 agreement with the Indians is immaterial. The Government was free to legislate in spite of this and, in fact could have legislated without even attempting to negotiate an agreement. The only standard the Government had to observe was that it be in the best interests of the country to enact such contrary legislation, and that the Indians be treated fairly by it in view of the fact that" }, { "docid": "9741479", "title": "", "text": "discharged of said trust and free of all charge or encumbrance whatsoever.” 24 Stat. 388, § 5. Appellants properly concede that there was no right of taxation while the land was held solely under such trust patent. They contend that the Clapp Amendment enacted four years subsequent to the issue and during the life of this trust patent had the effect of terminating it and of vesting a complete fee title in the allottee irrespective of his consent to such a change. An answering contention of the government isj that Congress had no power to alter this “trust patent” status without the consent of such patentee, because such trust patent, issued under the Nelson Act, conveyed a property right to this patentee which had become vested. The property right intended being the separate beneficial use of the land free from taxation and involuntary alienation 'for 25 years from date of trust patent, with fee title thereafter. There is no question that the government may, in its dealings with the Indians, create property rights which, once vested, even it cannot alter. Williams v. Johnson, 239 U. S. 414, 420, 36 Sup. Ct. 150, 60 L. Ed. 358; Sizemore v. Brady, 235 U. S. 441, 449, 35 Sup. Ct. 135, 59 L. Ed. 308; Choate v. Trapp, 224 U. S. 665, 32 Sup. Ct. 565, 56 L. Ed. 941; English v. Richardson, 224 U. S. 680, 32 Sup. Ct. 571, 56 L. Ed. 949; Jones v. Meehan, 175 U. S. 1, 20 Sup. Ct. 1, 44 L. Ed. 49; Chase v. U. S., 222 Fed. 593, 596, 138 C. C. A. 117. Such property rights may result from agreements between the government and the Indian. Whether the transaction takes the form of 'a treaty or of a statute is immaterial; the important considerations are that there should be the essentials of a binding agreement between the government and the Indian and the resultant vesting of a property right in the Indian. That exemption of land from taxation is a property right is established. Choate v. Trapp, supra. That this Indian had taken" }, { "docid": "2153724", "title": "", "text": "language. We are of the opinion that the amendment of Section 6 of the General Allotment Act was not intended as a change of prior law as to taxation of allotted lands. We hold that Section 5 of the Mission Indian Act has the same effect as Section 6 of the General Allotment Act as to taxability of allotted lands; and therefore property of the Agua Caliente Band of Mission Indians, held under trust patents, is exempt from direct taxation, including inheritance taxes. For Ninth Circuit cases in accord with our interpretation of the words “free of all charge or incumbrance whatsoever” see United States v. Nez Perce County, Idaho, 9 Cir., 95 F.2d 232, 235; Glacier County, Montana v. United States, 9 Cir., 1938, 99 F.2d 733; United States v. Benewah County, Idaho, 9 Cir., 1923, 290 F. 628. See also Morrow v. United States, 8 Cir., 243 F. 854; Choate v. Trapp, 224 U.S. 665, 32 S.Ct. 565, 56 L.Ed. 941; United States v. Spaeth, D.C. Minn., 24 F.Supp. 465. The judgment of the District Court is affirmed. . Mission Indian Act, 26 Stat. 712, Act Jan. 12, 1891. . General Allotment Act of 1887, 24 Stat. 388, 25 U.S.C.A. § 331 et seq. . The United States, in a memorandum brief, calls our attention to a Joint Resolution of June 19, 1902, by the Senate and House of Representatives, which we hold is also persuasive that the two Acts should be construed in pari materia. That resolution states: “Insofar as not otherwise specially provided, all allotments in severalty to Indians, outside of the Indian Territory, shall be made in conformity to the provisions of the Act approved February eighth, eighteen hundred and eighty-seven, entitled ‘An Act to provide for the allotments of lands in severalty to Indians on the various reservations, and to extend the protection of the laws of the United States and the Territories over the Indians, and for other purposes [General Allotment Act of 1887],’ and other general Acts amendatory thereof or supplemental thereto, and shall be subject to all the restrictions and carry" }, { "docid": "12746811", "title": "", "text": "More important still, it ignores the terms of the General Allotment Act of • 1887, and the wording of the trust patent itself. The Allotment Act, as well as the trust patent, by plain implication granted the Indian immunity from taxation during the trust period or any extension of it, and he had the right finally to receive his lands “free of all “charge or incumbrance whatsoever.” The authorities are uniform to the effect that this right of exemption is a vested right, as much a part of the grant as the land itself, and the Indian may not be deprived of it by the unwanted issuance to him of a fee patent prior to the end of the trust period. Choate v. Trapp, 224 U.S. 665, 32 S.Ct. 565, 56 L.Ed. 941; Ward v. Love County, 253 U.S. 17, 40 S.Ct. 419, 64 L.Ed. 751; United States v. Benewah County, 9 Cir., 290 F. 628; Morrow v. United States, 8 Cir., 243 F. 854; Board of Com’rs of Caddo County v. United States, 10 Cir., 87 F.2d 55; United States v. Dewey County, D.C., 14 F.2d 784; United States v. Comanche County, D.C., 6 F.Supp. 401; United States v. Chehalis County, D.C., 217 F. 281. Treaties with the Indians and acts of Congress relative to their rights in property reserved to them have always been liberally construed by the courts. The dependent condition of these wards of the Government makes it imperative that doubtful provisions in treaties and statutes be resolved in their favor. This court in United States v. Benewah County, supra, as early as 1923 declared that the Act of May 8, 1906, should be held to mean that the action of the Secretary of the Interior authorized by it can be had only on the application of the allottee or with his consent. The Act of February 26, 1927, was little more than a statutory recognition of the principle there announced. The fee patent in the present instance was issued during the trust period, or at least during an extension of that period. It follows from" }, { "docid": "2153723", "title": "", "text": "■» •* “ * * The literal language of the proviso evinces a congressional intent to subject an Indian allotment to all taxes only after a patent in fee is issued to the allottee * * * ” In order to satisfy ourselves that we are correct, we have made an exhaustive search of the Congressional Record to determine whether Congress, in amending Section 6 of the General Allotment Act, Title 25, U.S.C.A. § 349, meant to change existing law as to the taxation of the allotments merely because under the amended section the Secretary of the Interior is authorized to issue a fee simple with “all restrictions as to sale, incumbrance, or taxation removed. It is still provided in Section 5 of the General Allotment Act, Title 25, U.S.C.A. § 348, that the United States will issue at the end of the trust period a fee “discharged of said trust and free of all charge or incumbrance.” Section 5 of the Mission Indian Act and Section 5 of the General Allotment Act contain identical language. We are of the opinion that the amendment of Section 6 of the General Allotment Act was not intended as a change of prior law as to taxation of allotted lands. We hold that Section 5 of the Mission Indian Act has the same effect as Section 6 of the General Allotment Act as to taxability of allotted lands; and therefore property of the Agua Caliente Band of Mission Indians, held under trust patents, is exempt from direct taxation, including inheritance taxes. For Ninth Circuit cases in accord with our interpretation of the words “free of all charge or incumbrance whatsoever” see United States v. Nez Perce County, Idaho, 9 Cir., 95 F.2d 232, 235; Glacier County, Montana v. United States, 9 Cir., 1938, 99 F.2d 733; United States v. Benewah County, Idaho, 9 Cir., 1923, 290 F. 628. See also Morrow v. United States, 8 Cir., 243 F. 854; Choate v. Trapp, 224 U.S. 665, 32 S.Ct. 565, 56 L.Ed. 941; United States v. Spaeth, D.C. Minn., 24 F.Supp. 465. The judgment of" }, { "docid": "1472375", "title": "", "text": "of that Act has any relation to the taxation of homestead allotments. It is entitled an Act to amend Section 3 of the Act of June 28, 1906, which reserved to the Osage Tribe for a period of 25 years from and after April 8, 1906, all-the oil, gas,, coal and other mineral under the. allotted lands. All of the Act of 1921 relates to that subject, except its third section. It is observed that the section puts all Osage Indians having less than one-half .Indian blood in a class by themselves as to competency to manage their affairs, and as to them removes all restrictions against alienation of their allotments, both homestead and surplus lands. Nothing is said in that respect of those who have half or more Indian blood and to whom certificates of competency have not issued. Clearly, as to them restrictions against alienation were not removed; but counsel for appellees argue that the last sentence of the section removed exemption from taxation of all homesteads, saving only those that might be held by the allottee, regardless of his degree of Indian blood, or his competency or ineompeteney. This would have been an unusual thing to do, and contrary to precedent. The homesteads of Cherokees and Creeks were made alienable but non-taxable. Choate v. Trapp, 224 U. S. 665, 32 S. Ct. 565, 56 L. Ed. 941. Moreover, the manner of expressing that purpose is not apt in view of the exemption from taxation of all homesteads given by the Act of June 28, 1906. The section does not in terms remove exemption of homesteads of all allottees. The whole subject matter of the earlier Act in this respect is not covered by this section, therefore it cannot be taken as a substitute for paragraphs 4 and 7 of section 2 of the Act of 1906, and both statutes must stand and be brought into reconciliation. United States v. Claflin, 97 U. S. 546, 24 L. Ed. 1082, and cases supra on repeals by implication. The purpose of Congress seems plain, and it is reasonable, practicable and" }, { "docid": "12746810", "title": "", "text": "orally and in some detail concerning the circumstances surrounding his receipt of the patent and his attitude toward it. The trial court was in a better position than we are, with only the cold record before us, to determine the degree of the Indian’s intelligence and understanding and to gauge the frankness and honesty of his testimony. For this reason it becomes necessary to remand the cause for a finding of the ultimate fact of consent. It was the view of the trial court that the treaty with the Nez Perce granted exemption from taxation only “until otherwise provided by law,” and that the Act of May 8, 1906, terminated the immunity in all cases where fee patents were issued thereunder. The cancellation of Carter’s patent under authority of the later 1927 act was thought to restore the exempt status, but the statute was believed to have no retroactive effect; hence, during the period while the fee was in the Indian, the land was taxable. This view disregards other assurances contained in the 1863 treaty. More important still, it ignores the terms of the General Allotment Act of • 1887, and the wording of the trust patent itself. The Allotment Act, as well as the trust patent, by plain implication granted the Indian immunity from taxation during the trust period or any extension of it, and he had the right finally to receive his lands “free of all “charge or incumbrance whatsoever.” The authorities are uniform to the effect that this right of exemption is a vested right, as much a part of the grant as the land itself, and the Indian may not be deprived of it by the unwanted issuance to him of a fee patent prior to the end of the trust period. Choate v. Trapp, 224 U.S. 665, 32 S.Ct. 565, 56 L.Ed. 941; Ward v. Love County, 253 U.S. 17, 40 S.Ct. 419, 64 L.Ed. 751; United States v. Benewah County, 9 Cir., 290 F. 628; Morrow v. United States, 8 Cir., 243 F. 854; Board of Com’rs of Caddo County v. United States, 10" }, { "docid": "4173170", "title": "", "text": "the lands involved here had attained a taxable status at the time of her death in virtue of the 1928 Act, and the lands therefore descended to her heirs subject to taxation by the State of Oklahoma, under and in accordance with the laws of that State. There is no contractual right to tax immunity — no treaty obligation, or Federal law to respect. Cf. Worchester v. Georgia, 6 Pet. 515, 8 L.Ed. 483; Kansas Indians, 5 Wall. 737, 18 L.Ed. 667; New York Indians, 5 Wall. 761, 18 L.Ed. 708; Choate v, Trapp, 224 U.S. 665, 32 S.Ct. 565, 56 L.Ed. 941; Bryan County v. United States, 10 Cir., 123 F.2d 782. The power of the State of Oklahoma to subject these lands to taxation is conceded, only the power to enforce the tax under and in accordance with its laws is challenged here. There is nothing in the text or in the legislative history of the Act to indicate that Congress intended to retain any measure of control over the power of the State to tax the lands, or to qualify or limit its power to enforce the collection of the tax in accordance with its uniform laws. Indeed, it would be difficult to find words more expressive of a Congressional will to permit the full sweep of the State taxing laws over the property in question, and the legislative history amply supports this textual construction. True the property involved here is restricted against alienation by force of the same Act which subjects it to taxation by the State of Oklahoma (§§ 1 & 4, Act of May 10, 1928), but restrictions against alienation and non-taxability are separate and distinct subjects. Choate v. Trapp, supra; Superintendent v. Commissioner, 295 U.S. 418, 55 S.Ct. 820, 79 L.Ed. 1517; Oklahoma Tax Commission v. United States, 63 S.Ct. 1284, 87 L.Ed. -. Restrictions against alienation, without more, do not render the restricted lands immune from the operation of the taxing laws of the State of Oklahoma. Landman v. Commissioner, 10 Cir., 123 F.2d 787; Superintendent v. Commissioner, supra, page 123 F.2d" }, { "docid": "6771139", "title": "", "text": "of the license, and the title of Rose Wolf Setter is the superior one. If the former, the act of 1887 is ineffective to impair or destroy the right and title of Chase, and his title and right of possession must prevail over the claim of Rose Wolf Setter, the Omaha Tribe, and the United States, which has no pecuniary interest in the action or the property involved, and no higher or better right than Rose Wolf Setter, whom it represents. United States v. Beebe, 127 U. S. 338, 346, 8 Sup. Ct. 1083, 32 L. Ed. 121; United States v. Winona & St. Peter R. R. Co., 67 Fed. 969, 972, 15 C. C. A. 117, 120. If by the treaty of 1865 a substantial right in or title to the land in question was granted to or vested in Clarissa Chase and her heirs, the subsequent act of Congress of 1882 was ineffective to impair or destroy that right or title because: First, Indians as -well as other residents and citizens of the United States are protected by the fifth amendment to the Constitution against deprivation of property, life, or liberty without due process of law. No act of Congress or legislative fiat constitutes due process of law, whereby a vested right in or title to property may be either seriously impaired or destroyed. Choate v. Trapp, 224 U. S. 665, 670, 677, 32 Sup. Ct. 565, 56 L. Ed. 941; Jones v. Meehan, 175 U. S. 1, 20 Sup. Ct. 1, 44 L. Ed. 49; In re Heff, 197 U. S. 488, 504, 25 Sup. Ct. 506, 49 L. Ed. 848; Cherokee Nation v. Hitchcock, 187 U. S. 294, 307, 23 Sup. Ct. 115, 47 L. Ed. 183; Jackson v. Goodell, 20 Johns. (N. Y.) 188; Lowry v. Weaver, 4 McLean, 82, Fed. Cas. No. 8,584; Whirlwind v. Von der Ahe, 67 Mo. App. 628; Taylor v. Drew, 21 Ark. 485, 487. Second. Except in political cases, and this case is not a political case, Congress has no power under the Constitution of the United 'States to" } ]

[ { "docid": "15666425", "title": "", "text": "were likely to be held unconstitutional. Union Township also eliminated other provisions that were not found to be suspect by the district court. Deja Vu appealed, claiming that the district court erred in denying in part its motion for a preliminary injunction. The Ohio Attorney General, who intervened in the lawsuit to defend the constitutionality of Ohio’s enabling statute, filed a cross-appeal. A divided panel of this court ruled in favor of Deja Vu on the following two points: (1) that the resolution was an unconstitutional prior restraint on protected First Amendment expression because it failed to provide for prompt judicial review of an adverse licensing decision, and (2) that the resolution’s more restrictive closing times for adult cabarets without liquor licenses as compared to those with liquor licenses was a violation of the First and Fourteenth Amendments. Deja Vu of Cincinnati, L.L.C. v. Union Township Bd. of Trs., 326 F.3d 791 (6th Cir.2008). We granted a rehearing en banc to reconsider whether the resolution is consonant with both the First and Fourteenth Amendments. For the reasons set forth below, we AFFIRM the district court’s decision to deny in part the preliminary injunction, express NO OPINION on the district court’s decision to grant in part the preliminary injunction in light of Union Township’s subsequent modification of the resolution, and REMAND the case for further proceedings consistent with this opinion. I. BACKGROUND Deja Vu began operating an adult cabaret in Union Township in April of 1999. The nightclub features performances by clothed, semi-nude, and nude dancers. In August of 1999, the Board of Trustees of Union Township (the Board) enacted Resolution No. 99-15 to regulate the licensing of cabaret-style nightclubs that feature adult entertainment. The resolution was enacted pursuant to the authority granted to Union Township by Ohio Revised Code § 503.51-59 for the purpose of protecting the “public health, safety and welfare.” Resolution No. 99-15 § A. In particular, the resolution states that it was passed on the basis of the Board’s “review of other cities’ studies and citizen comments regarding the secondary effects of sexually oriented businesses,” which provided" } ]

[ { "docid": "5562736", "title": "", "text": "11, 2002, the Board had its first meeting and determined that the 120-day grace period for establishments already in existence would begin on that day. On July 19, 2002, the Decatur County Attorney informed Odie by letter that the county would seek to enforce the licensing provision against him if he had not obtained a license within 120 days of July 11, 2002, i.e., by November 8, 2002. Odie did not and has not applied for a license from the Board. Instead, on November 7, 2002, he and his co-plaintiffs filed a complaint in the Western District of Tennessee, naming the county, the Commission, and the Board as defendants. The complaint alleged a number of claims, only some of which are on appeal and at least one of which was deemed waived at the summary judgment stage for failure to present a discernable argument. The claims on appeal are as follows: that the Act’s licensing scheme amounts to an unconstitutional prior restraint on protected expression; that unspecified substantive provisions of the Act would infringe on Plaintiffs’ freedom of expression; and that the ordinance is unconstitutionally overbroad or alternatively includes substantive provisions that would violate the First Amendment if applied to adult-oriented establishments. Plaintiffs sought a declaratory judgment to the effect that the Act and ordinance are unconstitutional. The relief requested was a temporary restraining order barring enforcement of the Act and the ordinance and, ultimately, permanent injunctive relief against enforcement of both. On December 3, 2002, the district court issued a temporary restraining order, by mutual consent of the parties, precluding enforcement of the Act and the ordinance for 90 days, or until the court ruled on the motion for a preliminary injunction. On February 3, 2003, the court granted Defendant State of Tennessee’s motion to intervene to defend the constitutionality of the Act. Plaintiffs filed an amended complaint on June 17, 2003, raising claims that are not at issue in this appeal. During July and August 2003, the parties engaged in discovery. The parties then filed cross-motions for summary judgment, with Plaintiffs renewing their request for permanent injunctions against" }, { "docid": "5130836", "title": "", "text": "215, 4 L.Ed.2d 205 (1959). “Although ordinarily ‘[a] plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others,’ we have relaxed that requirement in the First Amendment context, permitting plaintiffs to argue that a statute is overbroad because it is unclear whether it regulates a substantial amount of protected speech.” Williams, 128 S.Ct. at 1845 (quoting Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95 & nn. 6 & 7, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982)). This court has not shied away from invalidating a regulatory scheme in its entirety when the threat of impermissible applications and the consequent chilling effect unambiguously warranted this remedy. See Odle v. Decatur County, 421 F.3d 386, 395, 399 (6th Cir.2005) (holding that a Decatur County ordinance, which prohibited, inter alia, nudity and the performance of arguably sexually suggestive acts in any place where liquor was sold, served or consumed, was overbroad because “it reache[d] a wide swath of public places likely to present performances not usually attended by harmful secondary effects”); Triplett Grille, 40 F.3d at 136 (holding that the Akron public indecency ordinance was unconstitutionally overbroad because it prohibited nudity in all public places, without excepting “live performances with serious literary, artistic, or political value”). Our decisions are also in harmony with other circuits’ disposition of similar challenges. See, e.g., Conchatta Inc. v. Miller, 458 F.3d 258, 266 (3d Cir.2006) (holding that a Pennsylvania regulation prohibiting “lewd” entertainment is unconstitutionally overbroad because it applied to all venues holding liquor licenses as well as those “operating] in connection” with the licensed premises, sweeping in “a variety of performances that are entitled to the full protection of the First Amendment”); Giovani Carandola, Ltd. v. Bason, 303 F.3d 507, 510, 516 (4th Cir.2002) (holding that plaintiffs are likely to succeed in their overbreadth challenge to a North Carolina secondary-effects regulation because it applied to all establishments licensed to sell alcohol, “sweep[ing] far beyond bars and nude dancing establishments” and reaching “much other mainstream entertainment,” with no evidence" }, { "docid": "15225158", "title": "", "text": "OPINION GILMAN, Circuit Judge. In 1995, Richland Bookmart, Inc. (Book-mart), the operator of an adult-oriented video and book store, brought suit against Randall E. Nichols, the District Attorney for Knox County, Tennessee, challenging Tennessee’s Adult Oriented Establishments Act of 1995 (the Act) on the grounds that it violated both the First Amendment and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. The Act requires that all adult-oriented establishments be closed on Sundays and state holidays, .restricts the hours of operation for certain of these establishments, and mandates that all of them remove doors or other obstructions from the booths in which patrons watch sexually-explicit videos or live entertainment. Concluding that the operating-hour restrictions violated the First Amendment and that the Act was unconstitutionally vague and overbroad, the district court issued a permanent injunction to enjoin enforcement of the Act. On appeal, this court reversed the district court’s conclusion that the Act violated the First Amendment, and remanded the case for further proceedings to consider Book-mart’s equal protection argument under •the Fourteenth Amendment. See Rich-land Bookmart, Inc. v. Nichols, 137 F.3d 435 (6th Cir.1998) (Bookmart I). Both parties subsequently filed motions for summary judgment. In denying Book-mart’s equal protection challenge, the district court concluded that the exclusion of live-entertainment establishments from the time restrictions of the Act was rationally related to Tennessee’s legitimate interest in combating the harmful secondary effects of such establishments through a step-by-step legislative reform effort. Bookmart now challenges that ruling. For the reasons set forth below, we AFFIRM the judgment of the district court. I. BACKGROUND A. Factual background Bookmart operates a video and book store in Knoxville, Tennessee. Restricting access to adults only, it sells, rents, and distributes sexually oriented books, magazines, and videos. The videos are for off-premises viewing only. In May of 1995, the Tennessee legislature passed the Adult Oriented Establishments Act of 1995, Tenn.Code Ann. § 7-51-1401. The Act defines an “adult-oriented establishment” as “any commercial establishment, business or service, or portion thereof, which offers, as its principal or predominant stock or trade, sexually oriented material, devices, or" }, { "docid": "5562735", "title": "", "text": "business where nude and semi-nude dancing is presented for entertainment and beer is sold. Sports Club is located in a rural portion of Decatur County, Tennessee. Plaintiffs Jenifer Cosimano and Sherill Douglas are dancers employed by Sports Club; as are Plaintiffs Jane Doe I and II. On May 22, 2000, the Decatur County Commission adopted for local effect the Tennessee Adult-Oriented Establishment Registration Act, Tenn.Code Ann. §§ 7-51-1101 et seg., and pursuant to it, established the Decatur County Adult-Oriented Establishment Board. In addition, the Commission passed an ordinance (the “ordinance”) prohibiting nudity and sexually suggestive conduct at a wide range of public places where alcohol is sold, served, or consumed. The Act requires all operators of “adult-oriented establishments,” which Sports Club is conceded to be, to obtain licenses from the Board. The Act also regulates the entertainment offered at adult establishments. Establishments in existence at the time the Act was adopted are afforded a 120-day grace period during which to apply for a license and pursue judicial review should the license be denied. On July 11, 2002, the Board had its first meeting and determined that the 120-day grace period for establishments already in existence would begin on that day. On July 19, 2002, the Decatur County Attorney informed Odie by letter that the county would seek to enforce the licensing provision against him if he had not obtained a license within 120 days of July 11, 2002, i.e., by November 8, 2002. Odie did not and has not applied for a license from the Board. Instead, on November 7, 2002, he and his co-plaintiffs filed a complaint in the Western District of Tennessee, naming the county, the Commission, and the Board as defendants. The complaint alleged a number of claims, only some of which are on appeal and at least one of which was deemed waived at the summary judgment stage for failure to present a discernable argument. The claims on appeal are as follows: that the Act’s licensing scheme amounts to an unconstitutional prior restraint on protected expression; that unspecified substantive provisions of the Act would infringe on" }, { "docid": "21389346", "title": "", "text": "274 F.3d at 400. This Court has recognized that “any system of prior restraint carries a heavy presumption against its validity.” Id. at 391. “Licensing schemes in a city ordinance regulating sexually oriented businesses constitute a prior restraint that must incorporate at least the first two Freedman [v. Maryland, 380 U.S. 51, 59, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965)] procedural safeguards” in order to avoid being deemed an impermissible prior restraint. Id. at 400-01. The first Freedman safeguard requires the issuance of a license within a “specified and reasonable time period during which the status quo is maintained.” Deja Vu of Cincinnati, L.L. C. v. Union Township Board of Trustees, 411 F.3d 777, 786 (6th Cir.2005) (en banc) (quoting FW/ PBS Inc. v. City of Dallas, 493 U.S. 215, 228, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990)). The second Freedman safeguard requires the assurance of a “prompt final judicial decision” when an applicant appeals an adverse licensing action. Freedman, 380 U.S. at 59, 85 S.Ct. 734. The Supreme Court has recently clarified that this second factor will in most cases be satisfied by allowing applicants to appeal license denials through a state’s ordinary judicial review process. City of Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774, 124 S.Ct. 2219, 159 L.Ed.2d 84 (2004). Thus, in order for a licensing ordinance regulating sexually oriented businesses to be constitutional, it must ensure the maintenance of the status quo until a prompt final judicial decision is reached regarding an adverse licensing decision. Deja Vu of Cincinnati, 411 F.3d at 786. Accord Odle v. Decatur County, Tennessee, 421 F.3d 386, 389 (6th Cir.2005). Kenton County Ordinance No. 451.12 acts as an unconstitutional prior restraint on speech inasmuch as it does not allow for prompt judicial review of license suspensions and revocations and does not provide for the maintenance of the status quo in some cases. Section 17 governs hearings regarding violations of the ordinance. Ordinance No. 451.12 § 17. These hearings are distinct from hearings governed by Section 16 to determine whether points should be assessed for ordinance violations. Section 17 provides" }, { "docid": "18622424", "title": "", "text": "MEMORANDUM I. EDGAR, District Judge. Plaintiff DLS, Inc. (“DLS”), a Tennessee corporation, operates an “adult cabaret” in Chattanooga, Tennessee, which offers the public live semi-nude dancing by females. Plaintiff Ann Martin is the sole stockholder of DLS. Plaintiffs Karen Chadwick and Kim Tyndall are employees of DLS. The business operated by DLS is known as “Diamonds and Lace.” The plaintiffs bring this action under 42 U.S.C. § 1983 for damages as a consequence of deprivation of their constitutional rights. They seek a declaratory judgment that Chattanooga’s adult-oriented establishment ordinance, Ordinance 8601, as amended (herein sometimes called the “Ordinance”) is unconstitutional. They also seek injunctive and other relief. Evidence and argument have been presented to the Court. In general, the Ordinance establishes procedures for licensing of certain adult-oriented establishments and a permitting procedure for employees and entertainers at those businesses. The Ordinance also regulates certain sexual conduct at these businesses and specifies certain physical structural requirements for them. This is not the first time this Court has had occasion to review the Ordinance. In Broadway Books, Inc. v. Roberts, 642 F.Supp. 486 (E.D.Tenn.1986), this Court, with some exceptions, upheld the constitutionality of the Ordinance against a challenge presented by an “adult bookstore,” which along with “adult cabarets,” “adult motion picture theaters,” and “adult mini-motion picture theaters” are “adult-oriented establishments” under the terms of the Ordinance. See Chattanooga City Code § 11422(a) (defining “adult-oriented establishment”). While this Court in Broadway Books did address the Ordinance in general, many of the Court’s findings related to law enforcement problems and health conditions at adult bookstores, not adult cabarets. Since the Court’s Broadway Books decision, the Ordinance has been amended several times, although its general structure remains intact. II. Although the plaintiffs in this case have asserted in part that their First Amendment rights have been “chilled” because they have not been permitted to engage in totally nude dancing, this ease is not about nude dancing. Ordinance 8601 does not prohibit nude dancing. While nude dancing is proscribed by another Chattanooga ordinance, § 25-85 of the Chattanooga City Code, and by the state indecent exposure" }, { "docid": "5562773", "title": "", "text": "only as \"the ordinance.” The Decatur County Commission adopted the ordinance pursuant to Tenn. Code Ann. § 57-5-105, which authorizes Tennessee's county legislatures to regulate beer-selling establishments so that the sale of beer does not \"interfere with public health, safety and morals ....”§ 105(b)(1). . In their brief, Plaintiffs also present vague and general assertions to the effect that the Act includes substantive provisions that violate their First Amendment right to freedom of expression. But Plaintiffs have not identified which provisions of the Act they object to (there are many) and, in ■ any event, to the extent they offer argument on the constitutionality of the Act's substantive provisions their argument is so vague and perfunctory that, like the district court, we consider this claim waived. See United States v. Demjanjuk, 367 F.3d 623, 638 (6th Cir.2004); United States v. Crozier, 259 F.3d 503, 517 (6th Cir.2001); McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir.1997). .The ordinance defines \"Public place” as: [A]ny location frequented by the public, or where the public is present or likely to be present, or where a person may reasonably be expected to be observed by members of the public. \"Public places” includes, but is not limited to, streets, sidewalks, parks, business and commercial establishments (whether for profit or not-for-profit and whether open to the public at large or where entrance is limited by a cover charge or membership requirement and/or both), bottle clubs, hotels, motels, restaurants, night clubs, country clubs, cabarets and meeting facilities utilized by any religious, social, fraternal or similar ■organizations. Premises used solely as a private residence, whether permanent or temporary in nature are not deemed to be a public place. \"Public places\" does not include enclosed single sex public restrooms, enclosed single sex functional showers, locker and/or dressing room facilities, enclosed motel rooms and hotel rooms designed and intended for sleeping accommodations, doctors’ offices, portions of hospitals and similar places in which nudity or exposure is necessarily or customarily expected outside of the home and the sphere of privacy constitutionally protected therein; nor does it include a person appearing in" }, { "docid": "10863870", "title": "", "text": "reach plaintiffs equal protection argument. For the reasons stated below, the judgment of the district court is reversed and the case is remanded to the district court with instructions to vacate the permanent injunction. I. The Statute in Question On June 26,1995, plaintiff, Richland Book-mart, Inc., a seller of sexually-explicit books, magazines and videos, filed a complaint for preliminary injunction, permanent injunction and declaratory judgment requesting that the district court declare Tennessee’s Adult Oriented Establishment Act (1995 Tenn. Pub. Act 421, codified at Tenn.Code Ann. §§ 7-51-1401 et seq.) to be unconstitutional on its face or as applied to plaintiff. After a hearing on the preliminary injunction, the district court issued a preliminary injunction enjoining enforcement of the act. The injunction was made permanent on September 26,1996, and defendant, District Attorney General for Knox County Randall Nichols, appealed to this Court. Presumably in anticipation of expected First Amendment challenges, the act contains a lengthy preamble. Because the district court carefully summarized the long preamble, we will highlight only relevant portions here. The preamble discusses the need to outlaw closed video booths because these booths are often used by patrons to stimulate themselves sexually, creating a public health problem. This provision does not apply to plaintiff. It does not have closed booths on its premises. Plaintiff sells adult books and magazines and sells and rents adult videos for off-premises viewing only. The preamble also lists detrimental health, safety and welfare problems caused by shops selling graphic sexual material—the so-called “secondary effects,” of the establishments on the communities that surround them—and cites specific land-use studies done by other cities on the subject. The “secondary effects” identified include “increased crime, downgrading of property values and spread of sexually transmitted and communicable diseases.” The preamble continues with a list of “unlawful and/or dangerous sexual activities” associated with adult-oriented establishments and ends with a-list of citations to judicial decisions supporting such legislation. The act defines “adult-oriented establishment” as “any commercial establishment ... or-portion thereof’ selling as its “predominant stock or trade ... sexually oriented material.” “Sexually-oriented material” is defined as any publication “which depicts sexual" }, { "docid": "9853011", "title": "", "text": "MARCUS, Circuit Judge: Plaintiff Ranch House, Inc. (“Ranch House”) appeals the district court’s order dismissing its complaint and finding after a bench trial that two recent Alabama statutes regulating nude entertainment pass First Amendment muster. One statute, Alabama Code § 13A-12-200.il, broadly prohibits any business from allowing nudity to be shown for entertainment purposes; the other statute, Alabama Code § 13A-12-200.5(4), prohibits operation of an adult-oriented business within 1,000 feet of various buildings such as churches or schools. Ranch House contends that these statutes proscribe too much protected expression, and that the Defendants should be prohibited from enforcing them. Although we agree that on this record there may be real questions about the constitutionality of these statutes, we conclude that the wisest course is to remand this case to permit further argument and development of the record on several critical issues, including Defendants’ claim that § 200.11 is intended to combat the “secondary effects” of nude entertainment. We therefore vacate the district court’s orders and remand for further proceedings consistent with this opinion. We also continue this Court’s existing injunction prohibiting enforcement of §§ 200.11 and 200.5(4) with respect to Ranch House’s existing businesses. I. The parties stipulated to the following facts before the district court. See Ranch House v. Amerson, 22 F.Supp.2d 1296, 1297 (N.D.Ala.1998). Ranch House is an Alabama corporation doing business as the Platinum Club (“Club”) and the Platinum Sports Bar (“Bar”). The Club offers topless and nude female dancing, and is not licensed to sell or provide alcohol in connection with the dancing. The Bar is adjacent to the Club and is licensed to sell beer and wine. At no time have Ranch House or its employees been arrested or prosecuted for obscenity. Both businesses are located in an unincorporated area of Calhoun County, Alabama. The Defendants, the Calhoun County Commission and Larry Amerson, Sheriff of Calhoun County, will attempt to enforce the statutes at issue with respect to Ranch House’s businesses if those provisions are upheld in this case. The two statutes at issue are recent amendments to the Alabama Anti-Obscenity Enforcement Act, Ala.Code §" }, { "docid": "5130857", "title": "", "text": "overbreadth analysis is whether protected expression will be burdened by the actual enforcement of the Act or chilled by virtue of its sheer presence on the books. With regard to the former, we are persuaded that the risk of actual enforcement of the Act against mainstream artistic establishments is quite low: unlike the lawmakers of Akron in Triplett Grille, 40 F.3d at 131, and Decatur County in Odle, 421 F.3d at 396, who conceded that their regulatory schemes applied to mainstream artistic performances, Tennessee and Shelby County disavow such a broad reading of this Act, see Appellees’ Br. at 38-39. With regard to the latter risk, we seriously doubt that operators of any mainstream artistic venue are likely to scrutinize the provisions of a regulatory scheme aimed at “adult-oriented businesses,” conclude that the scheme will require their venues to obtain a license if certain performances are offered, and be thereby deterred from staging Salomé, Prodigal Son, or Bugaku — on the basis of a single comma. We think that the definition of “adult-oriented establishment” is “readily susceptible” to the narrowing construction that Defendants advocate. We recognize that this does not automatically address the second problem with the definition of “adult entertainment”' — the apparent self-sufficiency of a predominant emphasis on “pantomime,” “modeling,” or “any other personal service offered customers” to transform a performance or exhibition into “adult entertainment.” “[T]he risk that this definition might chill a range of protected speech” may have led us “to find it unconstitutionally overbroad if it stood alone.” Deja Vu of Nashville, Inc., 274 F.3d at 388 (emphasis added). If we read “adult entertainment” in conjunction with the narrowly construed definition of “adult-oriented establishment,” the hypothesized unconstitutional applications dwindle in number, if not disappear. One cannot readily imagine a non-adult modeling session or non-erotic pantomime performance taking place in individualized booths anymore than one can imagine Balanchine’s ballets screened routinely in such a setting. The domain of expressive activities triggering the “adult entertainment” label may be limited in yet another manner. In two decisions analyzing the Tennessee Act, a federal district court found that the" }, { "docid": "5562765", "title": "", "text": "even simulated caressing or incidental touching while clothed. It was against this peculiar backdrop that the SOB court considered the County Attorney’s affidavit representing that there were no theaters in the county and that no prosecutions would be brought against theaters if any emerged. Id. Given the express exception to the nudity ban, we think the SOB court’s decision to read into the ordinance an analogous exception to the genital-fondling ban is a construction of an entirely different character than the one proposed by Defendants in this case, in which we confront an ordinance that lacks exceptions of any kind. SOB is also distinguishable because the prosecutor in that case affirmatively represented that prosecutions would not be brought under the genital-fondling provision against theaters that fell within the exception to the nudity ban. While we have said that such a promise is not in any sense a “construction” of the ordinance, it is more than what Defendants have produced on this record — namely, a representation that Decatur County’s admittedly overbroad ordinance, if permitted to stand, would have no present unconstitutional effect. Finally, we consider Defendants’ argument that under LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972), the ordinance is not overbroad. In LaRue, the Court considered a challenge to California regulations substantially similar to the ordinance at issue here. Id. at 111-12, 93 S.Ct. 390. The regulations were adopted pursuant to the state’s power to regulate the sale of liquor and they applied only to establishments holding liquor licenses. Id. The plaintiffs, proprietors of and dancers at liquor-licensed nude-dancing establishments, did not challenge the regulations under the overbreadth doctrine but rather on the theory that the regulations were facially violative of the First Amendment to the extent they would be applied to establishments like those operated by the plaintiffs. The Supreme Court rejected this claim, noting that the record in the case was “sordid” and filled with instances of “bacchanalian revelries” (e.g., oral copulation, masturbation, and other sexual contact) occurring at liquor-serving nude-dancing establishments. Id. at 111, 118, 93 S.Ct. 390. In addition to states’ inherent" }, { "docid": "5130827", "title": "", "text": "This ease presents a constitutional challenge to the Tennessee Adult-Oriented Establishment Registration Act of 1998, Tenn.Code Ann. § 7-51-1101 et seq. The Tennessee Act is a county-option state law, enacted to address the recognized negative secondary effects associated with “adult” or sexually oriented businesses, including crime, spread of sexually transmitted diseases, lowering of property values, and other related public welfare and safety issues. The Act sets up a licensing scheme for sexually oriented businesses, prohibits certain activities on the premises of such businesses, and regulates the manner in which entertainment may be presented therein. The Act enters into effect in a particular county after “a two-thirds (2/3) vote of the county legislative body adopting this part.” Tenn.Code Ann. § 7-51-1120. On September 13, 2007, Shelby County’s Ordinance 344 (“Ordinance”) adopted the Tennessee Act in Shelby County. The Ordinance relied on Tennes see’s legislative findings of “deleterious secondary effects commonly associated with adult-oriented establishments, including but not limited to an increase in crime, the spread of sexually-transmitted diseases, the downgrading of property values, and other public health, safety, and welfare issues.” Pursuant to the Ordinance, the Act entered into effect in Shelby County on January 1, 2008, but provided a 120-day “grace period” to allow businesses and employees to obtain licenses required by the Act. The Act regulates all establishments that conform to a statutory definition of “adult-oriented establishment” in two general ways. First, all businesses subject to the Act, as well as their employees and entertainers, must obtain a license or a permit. Second, the Act regulates the manner in which entertainment may be provided by adult-oriented establishments: it prohibits nudity, certain sexual activities, certain kinds of physical contact, and requires that all performances take place on a stage at least 18 inches above floor level and that all performers stay at least six feet away from customers, employees and other performers. Plaintiffs operate a “substantial fraction” of the nightclubs in Memphis, Shelby County. On January 25, 2008 — prior to the expiration of the 120-day grace period for obtaining licenses — Plaintiffs filed suit in the United States District" }, { "docid": "5130826", "title": "", "text": "OPINION BOGGS, Circuit Judge. Plaintiffs-Appellants Entertainment Productions, Inc., et al. filed suit to challenge the constitutionality of the Tennessee AdulNOriented Establishment Registration Act (“Act” or “Tennessee Act”) on First Amendment grounds. Plaintiffs appeal from a district court’s denial of a preliminary injunction against the enforcement of the Tennessee Act in Shelby County. Plaintiffs claim that the Tennessee Act is unconstitutional on four grounds. First, Plaintiffs contend that the definitions of “adult cabaret,” “adult-oriented establishment,” and “adult entertainment” render the Act unconstitutionally overbroad, and second, that these definitions are vague. Third, Plaintiffs argue that prohibitions on certain kind of physical contact on the premises of an adult-oriented establishment are overbroad. Fourth, Plaintiffs claim that the Tennessee Act will substantially diminish the availability of adult speech in Memphis, Shelby County. Plaintiffs conclude that the district court erred in determining both that Plaintiffs did not demonstrate a substantial likelihood of success on the merits of their claims and that the balancing of equities disfavored a preliminary injunction. We affirm the district court’s denial of the preliminary injunction. I This ease presents a constitutional challenge to the Tennessee Adult-Oriented Establishment Registration Act of 1998, Tenn.Code Ann. § 7-51-1101 et seq. The Tennessee Act is a county-option state law, enacted to address the recognized negative secondary effects associated with “adult” or sexually oriented businesses, including crime, spread of sexually transmitted diseases, lowering of property values, and other related public welfare and safety issues. The Act sets up a licensing scheme for sexually oriented businesses, prohibits certain activities on the premises of such businesses, and regulates the manner in which entertainment may be presented therein. The Act enters into effect in a particular county after “a two-thirds (2/3) vote of the county legislative body adopting this part.” Tenn.Code Ann. § 7-51-1120. On September 13, 2007, Shelby County’s Ordinance 344 (“Ordinance”) adopted the Tennessee Act in Shelby County. The Ordinance relied on Tennes see’s legislative findings of “deleterious secondary effects commonly associated with adult-oriented establishments, including but not limited to an increase in crime, the spread of sexually-transmitted diseases, the downgrading of property values, and other public" }, { "docid": "6711548", "title": "", "text": "away from their patrons (the “two-foot rule”). Ordinance, §§ 4, 7. The Appellants are Bill Badi Gammoh, the owner of an adult establishment in the City, several dancers at Gammoh’s club, and a dancer who has been offered employment at Gammoh’s club but has not yet accepted it. Gam-moh’s establishment, which does not serve alcoholic beverages, features entertainment by dancers who perform nude on stage and then dress in minimal clothing before offering one-on-one offstage dances. The Appellants do not challenge the provisions of the Ordinance governing on-stage dancing and other aspects of the operation of an adult cabaret; they challenge only the two-foot rule. Three weeks after the City Council passed the Ordinance, the Appellants filed their constitutional challenge in the Superior Court of California for Orange County. The case was subsequently removed to the United States District Court for the Central' District of California. The Appellants were unsuccessful before the district court. In addition to' other rulings that the Appellants do not challenge on appeal, the district court dismissed the Appellants’ overbreadth argument and part of their vagueness challenge with prejudice, and entered summary judgment in favor of the City on their regulatory takings claim, a First Amendment challenge, and the remaining vagueness argument. The Appellants pursue their vagueness, overbreadth, takings, and free speech and expression claims on appeal. II The Ordinance’s two-foot rule applies exclusively to “adult cabaret dancers.” The Ordinance defines an “adult cabaret dancer” as: any person who is an employee or independent contractor of an “adult cabaret” or “adult business” and who, with or without any compensation or other form of consideration, performs as a sexually-oriented dancer, exotic dancer, stripper, go-go dancer or similar dancer whose performance on a regular and substantial basis focuses on or emphasizes the adult cabaret dancer’s breasts, genitals, and or buttocks, but does not involve exposure of “specified anatomical areas” or depicting or engaging in “specified sexual activities.” Adult cabaret dancer does not include a patron. Ordinance, § 4. The district court rejected the Appellants’ assertion that this definition is vague and overbroad because it contains subjective terms. We" }, { "docid": "5562772", "title": "", "text": "Supreme Court and our Court sitting en banc have approved similar criteria. See Littleton, 541 U.S. at 783, 124 S.Ct. 2219; Deja Vu, 411 F.3d at 787-88. . The initial application review process, culminating in the Board's first decision on the application, could last at most 60 days. See Tenn.Code Ann. §§ 7-51-1105(d), -1106(4). A final Board decision on the applicant’s appeal would usually issue no more than 15 days later, depending on how soon the applicant filed a request for a hearing, and in no event more than 22 days later. See id. § 1110(b). Within five days of the Board's final decision adjudicating the applicant's appeal, the county attorney would be required to institute an action under § 1110(c), and, within two days after joinder of issue, the court would be required to hold a hearing to culminate, no later than two days thereafter, in the issuance of a final decision on the merits. Id. § 1110(d). . The ordinance lacks a citation (it appears at JA 36-39), so we refer to it only as \"the ordinance.” The Decatur County Commission adopted the ordinance pursuant to Tenn. Code Ann. § 57-5-105, which authorizes Tennessee's county legislatures to regulate beer-selling establishments so that the sale of beer does not \"interfere with public health, safety and morals ....”§ 105(b)(1). . In their brief, Plaintiffs also present vague and general assertions to the effect that the Act includes substantive provisions that violate their First Amendment right to freedom of expression. But Plaintiffs have not identified which provisions of the Act they object to (there are many) and, in ■ any event, to the extent they offer argument on the constitutionality of the Act's substantive provisions their argument is so vague and perfunctory that, like the district court, we consider this claim waived. See United States v. Demjanjuk, 367 F.3d 623, 638 (6th Cir.2004); United States v. Crozier, 259 F.3d 503, 517 (6th Cir.2001); McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir.1997). .The ordinance defines \"Public place” as: [A]ny location frequented by the public, or where the public is present or" }, { "docid": "21051788", "title": "", "text": "MANION, Circuit Judge. Ben’s Bar, Inc. operates a tavern in the Village of Somerset, Wisconsin, that formerly served as a venue for nude and semi-nude dancing. After the Village enacted an ordinance that, in part, prohibited the sale, use, or consumption of alcohol on the premises of “Sexually Oriented Businesses,” Ben’s Bar and two of its dancers filed suit under. 42 U.S.C. § 1983, seeking declaratory and injunctive relief against the enforcement of the ordinance. The plaintiffs’ complaint alleged, among other things, that the ordinance’s alcohol prohibition violated their right to freedom of expression under the First and Fourteenth Amendments to the United States Constitution. Shortly thereafter, plaintiffs filed a motion for a preliminary injunction, which the district court denied. The Village then filed a motion for summary judgment, which the district court granted. Ben’s Bar appeals this decision. Because we conclude that the record sufficiently supports the Village’s claim that the liquor prohibition is a reasonable attempt to reduce or eliminate the undesirable “secondary effects” associated with barroom adult entertainment, rather than an attempt to regulate the expressive content of nude dancing, we affirm the district court’s judgment. I. On October 24, 2000, the Village of Somerset, a municipal corporation located in St. Croix County, Wisconsin (“Village”), enacted Ordinance A-472, entitled “Sexu ally Oriented Business Ordinance” (“Ordinance”), for the purpose of regulating “Sexually Oriented Businesses and related activities to promote the health, safety, and general welfare of the citizens of the Village of Somerset, and to establish reasonable and uniform regulations to prevent the deleterious location and concentration of Sexually Oriented Businesses within the Village of Somerset.” The Ordinance regulates hours of operation, location, distance between patrons and performers, and other aspects concerning the operations of Sexually Oriented Businesses. In the legislative findings section of the Ordinance, the Village noted that: Based on evidence concerning the adverse secondary effects of Sexually Oriented Businesses on the community in reports made available to the Village Board, and on the holdings and findings in [numerous Supreme Court, federal appellate, and state appellate judicial decisions], as well as studies and summaries of studies" }, { "docid": "5562734", "title": "", "text": "OPINION CLAY, Circuit Judge. Herbert Odie and four dancers at his adult business (collectively “Plaintiffs”) appeal the district court’s grant of summary judgment in favor of Defendants Decatur County, Tennessee (the “county” or “Decatur County”), the Decatur County Commission (the “Commission”), the Decatur County Adult-Oriented Establishment Board (the “Board”) and Intervenor-De-fendant the State of Tennessee. Plaintiffs assert that on its face Tennessee’s Adulfi-Oriented Establishment Registration Act, Tenn.Code Ann. §§ 7-51-1101 et seq. (the “Act”), amounts to an unconstitutional pri- or restraint on protected expression. They also assert that a related county ordinance is overbroad and, even if not overbroad, includes substantive regulations that violate the First Amendment. After hearing oral argument, we held the case in abeyance pending the release of the en banc Court’s decision in Deja Vu of Cincinnati, L.L.C. v. The Union Township Bd. of Trs., 411 F.3d 777 (6th Cir.2005), a decision that bears on Plaintiffs’ prior restraint claim. We now AFFIRM in part and REVERSE in part. I. BACKGROUND In April 2000, Plaintiff Herbert Odie began operating Sports Club, a business where nude and semi-nude dancing is presented for entertainment and beer is sold. Sports Club is located in a rural portion of Decatur County, Tennessee. Plaintiffs Jenifer Cosimano and Sherill Douglas are dancers employed by Sports Club; as are Plaintiffs Jane Doe I and II. On May 22, 2000, the Decatur County Commission adopted for local effect the Tennessee Adult-Oriented Establishment Registration Act, Tenn.Code Ann. §§ 7-51-1101 et seg., and pursuant to it, established the Decatur County Adult-Oriented Establishment Board. In addition, the Commission passed an ordinance (the “ordinance”) prohibiting nudity and sexually suggestive conduct at a wide range of public places where alcohol is sold, served, or consumed. The Act requires all operators of “adult-oriented establishments,” which Sports Club is conceded to be, to obtain licenses from the Board. The Act also regulates the entertainment offered at adult establishments. Establishments in existence at the time the Act was adopted are afforded a 120-day grace period during which to apply for a license and pursue judicial review should the license be denied. On July" }, { "docid": "10863869", "title": "", "text": "OPINION MERRITT, Circuit Judge. The defendant below, Randall E. Nichols, District Attorney for Knox County, Tennes see, appeals a permanent injunction entered by the district court against enforcement of statutory amendments to the Tennessee Adult-Oriented Establishment Act. The new statute limits the hours and days during which adult entertainment establishments can be open and requires such establishments to eliminate the closed booths in which patrons watch sexually-explicit videos or live entertainment. The injunction was entered after plaintiff, Richland Bookmart, Inc., an adult bookstore in Knox County, Tennessee, challenged the constitutionality of the state law on the grounds that it violates the First Amendment and the Equal Protection Clause of the United States Constitution, The district court held that although the statute was content-neutral, the hours and days limitation violated the First Amendment because it was not narrowly tailored to address the stated goal of the statute—the alleged deleterious “secondary effects” on neighborhoods and families caused by the presence of adult establishments. Having decided the case on the First Amendment, ground, the district court did not reach plaintiffs equal protection argument. For the reasons stated below, the judgment of the district court is reversed and the case is remanded to the district court with instructions to vacate the permanent injunction. I. The Statute in Question On June 26,1995, plaintiff, Richland Book-mart, Inc., a seller of sexually-explicit books, magazines and videos, filed a complaint for preliminary injunction, permanent injunction and declaratory judgment requesting that the district court declare Tennessee’s Adult Oriented Establishment Act (1995 Tenn. Pub. Act 421, codified at Tenn.Code Ann. §§ 7-51-1401 et seq.) to be unconstitutional on its face or as applied to plaintiff. After a hearing on the preliminary injunction, the district court issued a preliminary injunction enjoining enforcement of the act. The injunction was made permanent on September 26,1996, and defendant, District Attorney General for Knox County Randall Nichols, appealed to this Court. Presumably in anticipation of expected First Amendment challenges, the act contains a lengthy preamble. Because the district court carefully summarized the long preamble, we will highlight only relevant portions here. The preamble discusses the" }, { "docid": "10627429", "title": "", "text": "courts may not fashion exceptions to § 1738 to provide a federal forum to plaintiffs who otherwise would be without one. See San Remo Hotel v. City and County of San Francisco, 545 U.S. 323, 125 S.Ct. 2491, 162 L.Ed.2d 315 (2005). . On November 15, 2005, a panel of this circuit denied Bates’s motion to remand her case to the district court for reconsideration in light of Odie v. Decatur County, Tennessee, 421 F.3d 386 (6th Cir.2005), and Deja Vu of Nashville, Inc. v. Metro. Gov't of Nashville and Davidson County, Tennessee, 421 F.3d 417 (6th Cir.2005). Bates v. Twp. of Van Burén, No. 05-2137 (6th Cir. Nov. 15, 2005). The panel noted, \"Upon consideration, we conclude this argument [regarding Odie or Deja Vu ] should be presented as part of the merits of this appeal.” In Odie, the court struck down as unconstitutionally overbroad a Tennessee county ordinance that \"prohibited] nudity and sexually suggestive conduct at a wide range of public places where alcohol is sold, served, or consumed\" on the ground that the county failed to support the breadth of the ordinance. 421 F.3d at 388. In Deja Vu, the court affirmed the principle that Odie should be given retroactive effect in all cases on direct review. 421 F.3d at 420. Neither case concerned Michigan’s res judicata rules. Because we affirm the district court’s judgment on that basis, we do not address Odie, Deja Vu, or in any other way the merits of Bates’s claims. . \"The records and judicial proceedings of any court of any such State ... shall have the same full faith and credit in every court within the United States ... as they have by law or usage in the courts of such State ... from which they are taken.” . See Phinisee, 582 N.W.2d at 855 (“We also agree with those courts that have recognized that an illegitimate child's interests in establishing paternity, which may extend not only to immediate support payments but also to future social security benefits and inheritance through the biological father, differ from the mother's interests in establishing" }, { "docid": "5562737", "title": "", "text": "Plaintiffs’ freedom of expression; and that the ordinance is unconstitutionally overbroad or alternatively includes substantive provisions that would violate the First Amendment if applied to adult-oriented establishments. Plaintiffs sought a declaratory judgment to the effect that the Act and ordinance are unconstitutional. The relief requested was a temporary restraining order barring enforcement of the Act and the ordinance and, ultimately, permanent injunctive relief against enforcement of both. On December 3, 2002, the district court issued a temporary restraining order, by mutual consent of the parties, precluding enforcement of the Act and the ordinance for 90 days, or until the court ruled on the motion for a preliminary injunction. On February 3, 2003, the court granted Defendant State of Tennessee’s motion to intervene to defend the constitutionality of the Act. Plaintiffs filed an amended complaint on June 17, 2003, raising claims that are not at issue in this appeal. During July and August 2003, the parties engaged in discovery. The parties then filed cross-motions for summary judgment, with Plaintiffs renewing their request for permanent injunctions against enforcement of the Act and ordinance. Another temporary restraining order issued on September 2, 2003, by consent of the parties. On October 14, 2003, the court granted Defendants’ motion for summary judgment, finding each of Plaintiffs’ constitutional challenges to the Act and ordinance unpersuasive; judgment was entered on October 20, 2003. Plaintiffs timely filed a notice of appeal on November 13, 2003 and the next day the district court denied their motion for a stay pending appeal. A motions panel of this Court denied Plaintiffs’ motion for a stay of enforcement of the Act and ordinance on March 19, 2004. The Act and ordinance became enforceable on that day, so we may assume Plaintiffs are not operating Sports Club, at least not as an adult-oriented establishment. II. STANDARD OF REVIEW We review a district court’s grant of summary judgment de novo. Kalamazoo Acquisitions, L.L.C. v. Westfield Insurance Co., Inc., 395 F.3d 338, 341 (6th Cir.2005); Cockrel v. Shelby County Sch. Dist., 270 F.3d 1036, 1048 (6th Cir.2001). Summary judgment shall be granted when “the pleadings," } ]

[ { "docid": "4677855", "title": "", "text": "Plaintiffs’ argument has been rejected in the Ninth and the Eleventh Circuits, see Carpenters Southern Cal. Admin. Corp. v. D & L Camp Const., 738 F.2d 999, 1000-01 (9th Cir.1984) (also rejecting pendent party jurisdiction over the claim); Carpenters Southern Cal. Admin. Corp. v. Majestic Housing, 743 F.2d 1341, 1346 (9th Cir.1984); Xaros v. U.S. Fidelity and Guar. Co., 820 F.2d 1176, 1180 (11th Cir.1987); Local 938 Joint Health & Welfare Trust Fund v. B.R. Starnes Co., 827 F.2d 1454 (11th Cir.1987); Giardiello v. Balboa Insurance Co., 837 F.2d 1566, 1569 (11th Cir.1988), on the grounds that a surety, not being a signatory to the collective bargaining agreement, cannot be an employer under ERISA of the unionized workers. The issue has not arisen for consideration in this Circuit. Regardless of the cases cited above, the Plaintiffs’ position is adopted. Based on the reasoning in these cases, the Defendants make three arguments: that sureties have not been named as employers either in the legislative history or in the statute, that the sureties cannot be liable for obligations in the collective bargaining agreement without being signatories, and that sureties do not bond the employers’ obligation solely for the benefit of the employees. This Court is not persuaded by the first two, and in this instance the third does not seem to apply. The argument based on legislative history is put most succinctly by the court in Xaros: Neither the legislative history of ERISA, see 1974 U.S.Code Cong. & Adm.News 4639, nor of its 1980 amendments, see 1980 U.S.Code Cong. & Ad.News 2918, indicate that Congress meant to expand the concept of employer or the jurisdiction of the federal courts to include sureties, whose obligations are fixed by contract____ Xaros, 820 F.2d at 1179. While nothing in the legislative history directly expands federal jurisdiction under ERISA over private sureties, nothing in the legislative history excludes them either. Congress enacted ERISA in 1974 to regulate employers’ pension plans in order to ensure that employees would receive their vested retirement benefits. Nachman Corp. v. Pension Benefit Guaranty Corp., 446 U.S. 359, 361-362, 374-375, 100 S.Ct." } ]

[ { "docid": "9675723", "title": "", "text": "Camp Construction Co., 738 F.2d 999, 1000-01 (9th Cir.1984)). Although this case differs factually from Xaros and Laborers Local 938 in that it involves the immediate employer’s surety rather than a surety of an employer’s subcontractor, the emphasis of those cases dictates the same result here. The Xaros court focused on two aspects of the employer-surety relationship in excluding the surety from ERISA’s coverage: (1) the surety was not a signatory to the collective bargaining agreement giving rise to the ERISA claim, and (2) the surety could not be said to have acted “indirectly in the interest of an employer, in relation to an employee benefit plan” when its purpose was to protect those the employer might harm. See id. at 1180; see also Laborers Local 938, 827 F.2d at 1457. Balboa was likewise not a signatory to the collective bargaining agreement mandating contribution to the funds, and the surety bond it issued was, in each instance, expressly for the protection of the general contractor, not FHM. The surety thus falls squarely under the rationale of Xaros and Laborers Local 938, and the ERISA claim against it should have been dismissed. The issue of the validity of appellants’ ERISA claims against Dade County, its officials and agencies, the banks, and the general contractors’ sureties is somewhat more difficult, for there are no Fifth or Eleventh Circuit cases similar on their facts to those here. Even so, we are again bound by Xaros and Laborers Local 938. As noted earlier, Xaros found that a surety could not be an employer for three reasons, one of which was the fact that the surety had not signed the collective bargaining agreement calling for the contributions at issue. We might earlier have assumed that the sureties’ non-signatory status was merely a factor in the Xaros court’s decision, but this court in Laborers Local 938 established that signatory status is now a prerequisite for being held a § 1002(5) employer: “We [in Xaros ] rejected the argument that § 1002(5)’s phrase ‘Any person acting indirectly as an employer, or indirectly in the interests of an" }, { "docid": "4150401", "title": "", "text": "Local 478 operating engineers whom Testa employed on the Project. Neither Cristwood nor NIC were signatories to this agreement. Testa failed to pay $13,671.96 in benefits for the period of July 1, 1992 through November 14, 1992. DISCUSSION This case presents the question of whether a general contractor and its surety, neither of which are signatories to a collective bargaining agreement between a subcontractor and its employees, are “employers” under ERISA and thus liable to pay the subcontractor’s unpaid contributions under the collective bargaining agreement. NIC, the surety, argues that it is not an “employer” under ERISA and therefore cannot be liable for unpaid contributions to the collective bargaining agreement between the Benefit Funds and Testa. Conversely, Bleiler argues that NIC falls within ERISA’s definition of “employer.” Under ERISA, Every employer who is obligated to make contributions to a multiemployer plan under the terms of the plan or under the terms of a collectively bargained agreement shall, to the extent not inconsistent with law, make such contributions in accordance with the terms and conditions of such plan or such agreement. 29 U.S.C.A. § 1145. ERISA defines an “employer” as “any person acting directly as an employer or indirectly in the interest of an employer, in relation to an employee benefit plan.” 29 U.S.C.A. § 1002(5) (West Supp. 1994). Courts deciding whether a surety is an employer under ERISA routinely have declined to enlarge ERISA’s definition of “employer” to include a surety that was not a signatory to the collective bargaining agreement at issue. See Giardiello, 837 F.2d at 1566; B.R. Starnes, 827 F.2d at 1457; Xaros, 820 F.2d at 1180. As the Ninth Circuit has stated, “[n]either the legislative history of ERISA nor its 1980 amendments indicate that Congress meant to expand the concept of employer or the jurisdiction of the federal courts to include sureties, whose obligations are fixed by contract and regulated by state law for the protection of the public.” Carpenters S. Cal. Admin. Corp. v. D & L Camp Constr. Co., 738 F.2d 999, 1000 (9th Cir.1984) (citations omitted). The Eleventh Circuit also has addressed this" }, { "docid": "4150406", "title": "", "text": "agreement expressly required the employer to bond its pension obligations. See id. at 629. Further, the Greenblatt court reasoned that, because the collective bargaining agreement could not have been reached without the bond, the surety benefited both the employer, who sought the benefit of the agreement, as well as the employees, whose benefit payments were guaranteed. See id. In reaching that decision, the court distinguished Greenblatt from Carpenters, where the employer was statutorily required under California law to bond the project. The Greenblatt court also acknowledged that the facts in Carpenters “‘could create a galaxy of problems arising under California law,’ including compliance with various other California statutes and the union’s position in relation to the claims of other claimants on the bond.” Id. at 629 (quoting Carpenters, 738 F.2d at 1000). The factors the Greenblatt court relied upon to determine that the surety acted indirectly in the interests of the employer are absent here. First, Bleiler does not allege that the collective bargaining agreement between Testa and Benefits Funds expressly obligated Testa to take out a surety bond. Second, like the employer in Carpenters, Cristwood was required to bond the Project under Connecticut law. Consequently, Bleiler’s reliance on Greenblatt is misplaced. Just as NIC is not an “employer” under ERISA, neither is Cristwood, the general contractor. Cristwood was not a signatory to the collective bargaining agreement between Testa and Testa’s employees and therefore is not an “employer” under ERISA. See Chicago Dist. Council of Carpenters Pension Fund v. Strom, 634 F.Supp. 163, 171-172 (N.D.Ill.1986) (general contractor who is not signatory to collective bargaining agreement is not “employer” under ERISA). Accordingly, the court lacks subject matter jurisdiction over Bleiler’s claim against Cristwood. In sum, the court lacks subject matter jurisdiction over Bleiler’s claims against both Cristwood and NIC. CONCLUSION Based on the foregoing, the plaintiffs motion to amend [doc. # 12] is GRANTED. The defendants’ motion to dismiss the Second Amended Complaint [doc. #9] also is GRANTED. The action is dismissed in its entirety and the Clerk shall enter judgment accordingly. SO ORDERED. . Section 49-42(a) provides in relevant part:" }, { "docid": "4150403", "title": "", "text": "issue. In excluding sureties from coverage under ERISA, the Eleventh Circuit has focused on two aspects of the employer-surety relationship: (1) whether the surety was a signatory to the collective bargaining agreement and (2) whether the surety acted indirectly in the employer’s interest in relation to the collective bargaining agreement. See Xaros, 820 F.2d at 1180. For example, in Xaros, the plaintiffs brought ERISA claims against their employer’s subcontractor and the subcontractor’s surety to recover unpaid fund contributions to the plaintiffs’ employee benefit plans pursuant to a collective bargaining agreement between the plaintiffs and their employer. The Xaros court held that “nonsignator ... sureties are not employers as defined in section 1002(5) of ERISA and as incorporated into section 1145 of the Act, thereby precluding federal subject matter jurisdiction over claims against these nonsignatories for a signatory’s failure to make contributions to employee benefit plans.” Id. The Xaros court further held that a “surety does not act indirectly in the interests of the employer, but rather acts directly in the interests of employees damaged by the employer’s failure to pay.” Id. (citation omitted). Similarly, the Giardiello plaintiffs brought an ERISA claim against a subcontractor’s surety to recover contributions allegedly owed by the subcontractor under a collective bargaining agreement between the subcontractor and the plaintiffs. The court held that it lacked subject matter jurisdiction to hear the claim against the surety because the surety was not a signatory to the collective bargaining agreement and because the surety bond it issued was not for the protection of the subcontractor. See Giardiello, 837 F.2d at 1569-70; see also B.R. Starnes, 827 F.2d at 1456-57 (nonsignatory sureties do not act indirectly in the interests of employers and are not employers under ERISA). Although the present case is factually distinguishable from Xaros and Giardiello because it involves the surety of a general contractor whose subcontractor is a party to a collective bargaining agreement, the principles underlying Xaros and Giardiello nonetheless apply here. NIC was not a signatory to the collective bargaining agreement between Testa and Benefit Funds. Moreover, Bleiler has not alleged that NIC issued" }, { "docid": "19869914", "title": "", "text": "a collectively bargained agreement shall, to the extent not inconsistent with law, make such contributions in accordance with the terms and conditions of such plan or such agreement. 29 U.S.C. § 1145. ERISA defines an “employer” as “any person acting directly as an employer, or indirectly in the interest of an employer.” 29 U.S.C. § 1002(5). The district court held that neither Cristwood nor NIC fell within this definition. We agree. Bleiler argues that because Cristwood and NIC guaranteed Testa’s ERISA obligations, they were “acting indirectly in the interest of an employer.” Id. However, our recent decision in Greenblatt v. Delta Plumbing & Heating Corp., 68 F.3d 561 (2d Cir.1995), forecloses Bleiler’s argument with respect to NIC. Greenblatt expressly held that for ERISA purposes, “a surety is not an ‘employer,’ ” id. at 576, at least absent some type of agency or ownership relationship or an assumption of the employer’s functions with regard to the administration of an ERISA plan, id. at 575. Bleiler’s amended complaint contains no suggestion that any of the latter circumstances exist. Instead, as in Greenblatt, “[w]e are confronted only with a contractual relationship separate from the collective bargaining agreement by which the surety guaranteed payment of a certain sum if the contractor defaulted on its obligations.” Id. We thus affirm the dismissal of Bleiler’s ERISA claim against NIC. Greenblatt informs our discussion of the ERISA claims against Cristwood as well. Cristwood, like NIC, was not a signatory to the collective agreement between Testa Excavating and Local 478. As alleged in the amended complaint, Cristwood’s obligation to pay Testa’s delinquent contributions is entirely the result of the joint and several liability established in the bond contract between Cristwood and NIC. The complaint does not suggest that Cristwood owned Tes-ta, functioned as its agent, or assumed its functions with regard to an ERISA plan. Indeed, in all relevant respects, Cristwood’s position is identical to that of NIC with re gard to Testa and the funds. We therefore affirm the dismissal of the ERISA claims against Cristwood. Our decision is consistent with decisions of other circuits that contractors" }, { "docid": "4150397", "title": "", "text": "but this concern may be alleviated if the new claim arises from a similar set of operative facts and a similar time as the existing claims. See Ansam Assocs., Inc. v. Cola Petroleum, Ltd., 760 F.2d 442, 446 (2d Cir. 1985); see also State Teachers Retirement Bd. v. Fluor Corp., 654 F.2d 843, 856 (2d Cir.1981). Here, the court finds that granting Bleiler’s motion to amend the complaint would not prejudice the defendants. Bleiler’s claim against Cristwood arises from similar facts and a similar time as the existing claims against NIC. Further, although the defendants’ motion to dismiss is directed at Bleiler’s original complaint, the defendants have addressed the issue of whether Cristwood is hable in their supporting papers. (See Mem. Defs.’ Mot. Dismiss Compl, at 5-6 [doc. # 10].) Accordingly, Bleiler’s motion to amend is GRANTED and the court will treat the defendants’ motion to dismiss' as if it were directed towards Bleiler’s Second Amended Complaint. II. Motion to Dismiss The defendants challenge Bleiler’s authority to maintain this action under ERISA and move to dismiss under Rule 12(b)(6), Fed.R.Civ.P. (See Mot. Dismiss Compl. [doc. # 10].) Bringing this motion under Rule 12(b)(6), however, is technically inaccurate. Instead, the motion should be presented as a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. A motion to dismiss under Rule 12(b)(1) “challenges the court’s statutory or constitutional power to adjudicate the case ...” and “[t]ypically ... alleges that the federal court lacks either federal question or diversity jurisdiction over the action.” 2A James W. Moore et al, Moore’s Federal Practice, ¶ 12.07, at 12-49 (2d ed. 1994). Here, because the court will be unable to exercise subject matter a jurisdiction over Bleiler’s claims unless NIC and Cristwood fall within ERISA’s definition of “employer”, a motion to dismiss pursuant to Rule 12(b)(1) is proper. Significantly, other courts also have considered the issue presented here — a plaintiffs authority under ERISA to sue a nonsignatory surety to a collective bargaining agreement — as a challenge to their subject matter jurisdiction. See, e.g., Giardiello v. Balboa Ins. Co., 837 F.2d 1566" }, { "docid": "19869916", "title": "", "text": "who are not signatories to collective agreements, but who assume financial guarantees of contribution payments, do not qualify as ERISA employers. See, e.g., Carpenters Health & Welfare Trust Fund v. Tri Capital Corp., 25 F.3d 849 (9th Cir.), cert. denied, — U.S. -, 115 S.Ct. 580, 130 L.Ed.2d 495 (1994) (declining to impose ERISA liability on nonsignatory general contractor who contracted separately with signatory to pay signatory’s plan contributions by joint check); Laborers Local 938 Joint Health & Welfare Trust Fund v. B.R. Starnes Co., 827 F.2d 1454 (11th Cir.1987) (nonsignatory subcontractor not an “employer” under ERISA); Carpenters Southern California Admin. Corp. v. Majestic Housing, 743 F.2d 1341, 1346 (9th Cir.1984) (no ERISA liability where contractor was “a non-party to the bargaining agreement that is made responsible by the operation of state [mechanic’s lien] law for the failed obligations of the employer”), undermined on other grounds, Trustees of Elec. Workers Health & Welfare Trust v. Marjo Corp., 988 F.2d 865 (9th Cir.1993). We turn now to the question of whether the Connecticut bond statute, Conn. Gen.Stat. § 49^42, is preempted by ERISA. Greenblatt disposes of this issue also because it held that a state contract claim on a surety bond was not preempted by ERISA and thus was not a ground for removal. In so holding, we noted that such a claim neither related to any employee benefit plan nor conflicted with any enforcement mechanism specified in ERISA. 68 F.3d at 572-75. This reasoning is entirely applicable to Bleiler’s claim under the Connecticut bond statute, and we therefore reverse the dismissal of that claim. We remand to the district court for further proceedings. We offer no opinion on the viability of the unfair trade practices, unfair insurance practices, and breach of implied covenants of good faith and fair dealing claims asserted against NIC. For reasons noted above, the district court never addressed these claims either with regard to preemption or on the merits. There are now only state claims left in the case. The district court should, on remand, determine whether they should be adjudicated in a federal forum, dismissed" }, { "docid": "4150407", "title": "", "text": "out a surety bond. Second, like the employer in Carpenters, Cristwood was required to bond the Project under Connecticut law. Consequently, Bleiler’s reliance on Greenblatt is misplaced. Just as NIC is not an “employer” under ERISA, neither is Cristwood, the general contractor. Cristwood was not a signatory to the collective bargaining agreement between Testa and Testa’s employees and therefore is not an “employer” under ERISA. See Chicago Dist. Council of Carpenters Pension Fund v. Strom, 634 F.Supp. 163, 171-172 (N.D.Ill.1986) (general contractor who is not signatory to collective bargaining agreement is not “employer” under ERISA). Accordingly, the court lacks subject matter jurisdiction over Bleiler’s claim against Cristwood. In sum, the court lacks subject matter jurisdiction over Bleiler’s claims against both Cristwood and NIC. CONCLUSION Based on the foregoing, the plaintiffs motion to amend [doc. # 12] is GRANTED. The defendants’ motion to dismiss the Second Amended Complaint [doc. #9] also is GRANTED. The action is dismissed in its entirety and the Clerk shall enter judgment accordingly. SO ORDERED. . Section 49-42(a) provides in relevant part: Every person who has furnished labor or material in the prosecution of the work provided for in such contract in respect of which a payment bond is furnished under the provisions of section 49-41 and who has not been paid in full ... may enforce his right to payment under the bond by serving notice of claim ... on the surety that issued the bond.... . This court recently cited Greenblatt to support the proposition that federal courts are expanding the definition of \"employer” under ERISA due to the increasing complexity of the corporate structure. See Christensen v. Chesebrough-Pond's Inc., 862 F.Supp. 22 (AHN) (D.Conn.1994). In Christensen, the court found that a parent corporation that was a signatory to a severance plan covering employees of its subsidiary qualified as an \"employer\" under ERISA. Christensen, however, is distinguishable from the present action. Unlike the parent corporation in Christensen, NIC was not a signatory to the collective bargaining agreement." }, { "docid": "4150402", "title": "", "text": "such plan or such agreement. 29 U.S.C.A. § 1145. ERISA defines an “employer” as “any person acting directly as an employer or indirectly in the interest of an employer, in relation to an employee benefit plan.” 29 U.S.C.A. § 1002(5) (West Supp. 1994). Courts deciding whether a surety is an employer under ERISA routinely have declined to enlarge ERISA’s definition of “employer” to include a surety that was not a signatory to the collective bargaining agreement at issue. See Giardiello, 837 F.2d at 1566; B.R. Starnes, 827 F.2d at 1457; Xaros, 820 F.2d at 1180. As the Ninth Circuit has stated, “[n]either the legislative history of ERISA nor its 1980 amendments indicate that Congress meant to expand the concept of employer or the jurisdiction of the federal courts to include sureties, whose obligations are fixed by contract and regulated by state law for the protection of the public.” Carpenters S. Cal. Admin. Corp. v. D & L Camp Constr. Co., 738 F.2d 999, 1000 (9th Cir.1984) (citations omitted). The Eleventh Circuit also has addressed this issue. In excluding sureties from coverage under ERISA, the Eleventh Circuit has focused on two aspects of the employer-surety relationship: (1) whether the surety was a signatory to the collective bargaining agreement and (2) whether the surety acted indirectly in the employer’s interest in relation to the collective bargaining agreement. See Xaros, 820 F.2d at 1180. For example, in Xaros, the plaintiffs brought ERISA claims against their employer’s subcontractor and the subcontractor’s surety to recover unpaid fund contributions to the plaintiffs’ employee benefit plans pursuant to a collective bargaining agreement between the plaintiffs and their employer. The Xaros court held that “nonsignator ... sureties are not employers as defined in section 1002(5) of ERISA and as incorporated into section 1145 of the Act, thereby precluding federal subject matter jurisdiction over claims against these nonsignatories for a signatory’s failure to make contributions to employee benefit plans.” Id. The Xaros court further held that a “surety does not act indirectly in the interests of the employer, but rather acts directly in the interests of employees damaged by" }, { "docid": "19869911", "title": "", "text": "health and benefit funds operated for the members of Local 478 of the International Union of Operating Engineers A.F.L.-C.I.O. Cristwood Construction, Inc. was the general contractor on a project in a municipal park in Waterbury, Connecticut. Cristwood hired as a subcontractor Testa Excavating, which agreed with Local 478 to pay certain amounts to the funds for each hour that it employed operating engineers. Cristwood obtained from The Netherlands Insurance Company (“NIC”) a payment bond guaranteeing certain obligations in connection with the project, presumably including Testa’s payments to the funds. The bond provided that Cristwood and NIC would be joint and severally liable for such obligations. Testa failed to make the payments required for the period July 1, 1992 through November 14, 1992. On October 19, 1993, Bleiler brought this action in Hartford Superior Court to recover sums due the funds under the agreement between Local 478 and Testa. Bleiler’s state court complaint sought relief against Crist-, wood under a Connecticut bond statute, Conn.Gen.Stat. § 49^12. Bleiler sought relief against NIC under: (i) the Connecticut bond statute, id,.; (ii) the Connecticut Unfair Trade Practices Act, Conn.Gen.Stat. § 42-110a et seq.; (iii) the Connecticut Unfair Insurance Practices Act, Conn.Gen.Stat. § 38a-815 et seq.; and (iv) common law breach of implied covenants of good faith and fair dealing. On December 2, 1993, Cristwood and NIC removed this action to federal district court pursuant to 28 U.S.C. § 1441, on the ground that the complaint arose out of ERISA and thus fell within the district court’s original jurisdiction under 28 U.S.C. § 1331. Bleiler thereafter sought to have the case remanded, but the district court denied his motion on the ground that Bleiler’s state law claims under the Connecticut bond statute, Conn. Gen.Stat. § 49-42, were preempted by ERISA. No mention was made of the other state law claims asserted against NIC. The district court suggested, however, that it “may very well be able to grant the relief Bleiler seeks under ERISA.” Acting on that suggestion, Bleiler amended his complaint to include ERISA claims against Cristwood and NIC. Cristwood and NIC moved to dismiss" }, { "docid": "23698467", "title": "", "text": "jurisdiction. We hold that none of these bases provided subject matter jurisdiction over the Board’s claim on the bond against New York Surety. I. Jurisdiction under Section 515 The district court held that “subject matter jurisdiction is granted to this court by Section 515 of ERISA (29 U.S.C. § 1145).” Greenblatt, 818 F.Supp. at 625. Section 515 provides: Every employer who is obligated to make contributions to a multiemployer plan under the terms of the plan or under the terms of a collectively bargained agreement shall, to the extent not inconsistent with law, make such contributions in accordance with the terms and conditions of such plan or such agreement. 29 U.S.C. § 1145. In addressing the applicability of § 515 to this action, the district court held that New York Surety fell within the definition of “employer” in § 3 of ERISA as “any person acting ... indirectly in the interest of an employer[ ] in relation to an employee benefit plan,” 29 U.S.C. § 1002(5). Greenblatt, 818 F.Supp. at 627. The district court reasoned that Delta bonded its pension obligations because the Agreement required it to take out a surety bond “to the benefit of the Joint Plumbing Industry Board.” New York Surety thereby became a person acting indirectly in the interest of the employer since without the bond there would have been no agreement between Delta and Local Union No. 2. Id. at 629. In the district court’s view, the common benefit conferred by the surety arrangement on the employees and Delta did not alter the fact that New York Surety was acting indirectly in Delta’s interest and thus was an ERISA employer. Id. Because New York Surety was an employer under § 3 of ERISA, the district court reasoned, it was subject to the strictures of § 515. The district court held that it was “permissible” to construe § 515 to cover a party acting in the interests of an employer if that party “promised to make contributions according to the ‘terms’ of the collective bargaining agreement,” even if it was not a signatory to the agreement" }, { "docid": "19869910", "title": "", "text": "WINTER, Circuit Judge: This is an action by the trustee of several union benefit funds against a general contractor and its surety to collect unpaid contributions owed by a subcontractor. The action was originally brought in state court and asserted only state law claims. It was removed by the defendants to the district court on the ground that it arose under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. (“ERISA”), where Judge Nevas denied a motion to remand, After permitting the trustee to amend his complaint to allege ERISA claims, the district court dismissed the complaint. We hold that the district court properly dismissed the trustee’s ERISA claims on the ground that neither the general contractor nor its surety was an ERISA “employer.” However, we reverse the dismissal of the state law claims and remand. BACKGROUND We of course view the allegations of the complaint in the light most favorable to the plaintiff. Paulemon v. Tobin, 30 F.3d 307, 308 (2d Cir.1994). Douglas Bleiler is the trustee of three health and benefit funds operated for the members of Local 478 of the International Union of Operating Engineers A.F.L.-C.I.O. Cristwood Construction, Inc. was the general contractor on a project in a municipal park in Waterbury, Connecticut. Cristwood hired as a subcontractor Testa Excavating, which agreed with Local 478 to pay certain amounts to the funds for each hour that it employed operating engineers. Cristwood obtained from The Netherlands Insurance Company (“NIC”) a payment bond guaranteeing certain obligations in connection with the project, presumably including Testa’s payments to the funds. The bond provided that Cristwood and NIC would be joint and severally liable for such obligations. Testa failed to make the payments required for the period July 1, 1992 through November 14, 1992. On October 19, 1993, Bleiler brought this action in Hartford Superior Court to recover sums due the funds under the agreement between Local 478 and Testa. Bleiler’s state court complaint sought relief against Crist-, wood under a Connecticut bond statute, Conn.Gen.Stat. § 49^12. Bleiler sought relief against NIC under: (i) the Connecticut bond" }, { "docid": "4150405", "title": "", "text": "the surety bond for any reason other than its intended statutory purpose — to “ ‘protect and benefit those who furnish materials and labor to the contractor on public work, in that they may be sure of payment of their just claims without defeat or undue delay.’ ” American Masons’ Supply Co. v. F.W. Brown Co., 174 Conn. 219, 227 (1978) (citations omitted). Accordingly, NIC does not qualify as an “employer” under ERISA and the court thus lacks subject matter jurisdiction over Bleiler’s claim against NIC. Bleiler cites Greenblatt v. Delta Plumbing & Heating Corp., 818 F.Supp. 623 (S.D.N.Y. 1993), to support its position that NIC is an employer under ERISA. In Greenblatt, the guardians of a retirement fund sued the surety that had guaranteed the employer’s plan obligation. The Greenblatt court rejected the reasoning of the Eleventh and Ninth Circuits and held that the surety qualified as an employer under ERISA. See id. at 625. In concluding that the surety acted in the interests of the employer, the court noted that the collective bargaining agreement expressly required the employer to bond its pension obligations. See id. at 629. Further, the Greenblatt court reasoned that, because the collective bargaining agreement could not have been reached without the bond, the surety benefited both the employer, who sought the benefit of the agreement, as well as the employees, whose benefit payments were guaranteed. See id. In reaching that decision, the court distinguished Greenblatt from Carpenters, where the employer was statutorily required under California law to bond the project. The Greenblatt court also acknowledged that the facts in Carpenters “‘could create a galaxy of problems arising under California law,’ including compliance with various other California statutes and the union’s position in relation to the claims of other claimants on the bond.” Id. at 629 (quoting Carpenters, 738 F.2d at 1000). The factors the Greenblatt court relied upon to determine that the surety acted indirectly in the interests of the employer are absent here. First, Bleiler does not allege that the collective bargaining agreement between Testa and Benefits Funds expressly obligated Testa to take" }, { "docid": "19869917", "title": "", "text": "Gen.Stat. § 49^42, is preempted by ERISA. Greenblatt disposes of this issue also because it held that a state contract claim on a surety bond was not preempted by ERISA and thus was not a ground for removal. In so holding, we noted that such a claim neither related to any employee benefit plan nor conflicted with any enforcement mechanism specified in ERISA. 68 F.3d at 572-75. This reasoning is entirely applicable to Bleiler’s claim under the Connecticut bond statute, and we therefore reverse the dismissal of that claim. We remand to the district court for further proceedings. We offer no opinion on the viability of the unfair trade practices, unfair insurance practices, and breach of implied covenants of good faith and fair dealing claims asserted against NIC. For reasons noted above, the district court never addressed these claims either with regard to preemption or on the merits. There are now only state claims left in the case. The district court should, on remand, determine whether they should be adjudicated in a federal forum, dismissed under 28 U.S.C. § 1367(c), see United Mine Workers v. Gibbs, 383 U.S. 715, 726-27, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966), or remanded to the court from which they were removed. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 357, 108 S.Ct. 614, 622, 98 L.Ed.2d 720 (1988). . We do quibble with the district court's conclusion that the ERISA claim should be dismissed under Rule 12(b)(1) for lack of subject matter jurisdiction rather than under Rule 12(b)(6) for failure to state a claim. The conclusion that neither Cristwood nor NIC are statutory employers merely reflects the lack of a remedy against them under federal law, not the lack of a federal question. See Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946); Charles A. Wright, Law of Federal Courts § 18, at 113 (5th ed. 1994). In that regard, we disagree with Xaros v. United States Fidelity and Guar. Co., 820 F.2d 1176, 1180 (11th Cir.1987). We do note that a holding that a plaintiff has" }, { "docid": "19869915", "title": "", "text": "exist. Instead, as in Greenblatt, “[w]e are confronted only with a contractual relationship separate from the collective bargaining agreement by which the surety guaranteed payment of a certain sum if the contractor defaulted on its obligations.” Id. We thus affirm the dismissal of Bleiler’s ERISA claim against NIC. Greenblatt informs our discussion of the ERISA claims against Cristwood as well. Cristwood, like NIC, was not a signatory to the collective agreement between Testa Excavating and Local 478. As alleged in the amended complaint, Cristwood’s obligation to pay Testa’s delinquent contributions is entirely the result of the joint and several liability established in the bond contract between Cristwood and NIC. The complaint does not suggest that Cristwood owned Tes-ta, functioned as its agent, or assumed its functions with regard to an ERISA plan. Indeed, in all relevant respects, Cristwood’s position is identical to that of NIC with re gard to Testa and the funds. We therefore affirm the dismissal of the ERISA claims against Cristwood. Our decision is consistent with decisions of other circuits that contractors who are not signatories to collective agreements, but who assume financial guarantees of contribution payments, do not qualify as ERISA employers. See, e.g., Carpenters Health & Welfare Trust Fund v. Tri Capital Corp., 25 F.3d 849 (9th Cir.), cert. denied, — U.S. -, 115 S.Ct. 580, 130 L.Ed.2d 495 (1994) (declining to impose ERISA liability on nonsignatory general contractor who contracted separately with signatory to pay signatory’s plan contributions by joint check); Laborers Local 938 Joint Health & Welfare Trust Fund v. B.R. Starnes Co., 827 F.2d 1454 (11th Cir.1987) (nonsignatory subcontractor not an “employer” under ERISA); Carpenters Southern California Admin. Corp. v. Majestic Housing, 743 F.2d 1341, 1346 (9th Cir.1984) (no ERISA liability where contractor was “a non-party to the bargaining agreement that is made responsible by the operation of state [mechanic’s lien] law for the failed obligations of the employer”), undermined on other grounds, Trustees of Elec. Workers Health & Welfare Trust v. Marjo Corp., 988 F.2d 865 (9th Cir.1993). We turn now to the question of whether the Connecticut bond statute, Conn." }, { "docid": "4150404", "title": "", "text": "the employer’s failure to pay.” Id. (citation omitted). Similarly, the Giardiello plaintiffs brought an ERISA claim against a subcontractor’s surety to recover contributions allegedly owed by the subcontractor under a collective bargaining agreement between the subcontractor and the plaintiffs. The court held that it lacked subject matter jurisdiction to hear the claim against the surety because the surety was not a signatory to the collective bargaining agreement and because the surety bond it issued was not for the protection of the subcontractor. See Giardiello, 837 F.2d at 1569-70; see also B.R. Starnes, 827 F.2d at 1456-57 (nonsignatory sureties do not act indirectly in the interests of employers and are not employers under ERISA). Although the present case is factually distinguishable from Xaros and Giardiello because it involves the surety of a general contractor whose subcontractor is a party to a collective bargaining agreement, the principles underlying Xaros and Giardiello nonetheless apply here. NIC was not a signatory to the collective bargaining agreement between Testa and Benefit Funds. Moreover, Bleiler has not alleged that NIC issued the surety bond for any reason other than its intended statutory purpose — to “ ‘protect and benefit those who furnish materials and labor to the contractor on public work, in that they may be sure of payment of their just claims without defeat or undue delay.’ ” American Masons’ Supply Co. v. F.W. Brown Co., 174 Conn. 219, 227 (1978) (citations omitted). Accordingly, NIC does not qualify as an “employer” under ERISA and the court thus lacks subject matter jurisdiction over Bleiler’s claim against NIC. Bleiler cites Greenblatt v. Delta Plumbing & Heating Corp., 818 F.Supp. 623 (S.D.N.Y. 1993), to support its position that NIC is an employer under ERISA. In Greenblatt, the guardians of a retirement fund sued the surety that had guaranteed the employer’s plan obligation. The Greenblatt court rejected the reasoning of the Eleventh and Ninth Circuits and held that the surety qualified as an employer under ERISA. See id. at 625. In concluding that the surety acted in the interests of the employer, the court noted that the collective bargaining" }, { "docid": "19869913", "title": "", "text": "under Federal Rule of Civil Procedure 12(b)(6). The district court granted the motion and dismissed the ERISA claims on the ground that neither Cristwood nor NIC was an “employer” within the meaning of ERISA. In so doing, howeverj it relied on Rule 12(b)(1) and dismissed for lack of subject matter jurisdiction. Without further discussion, the court then dismissed the entire complaint.' The grounds for dismissing Bleiler’s claim under the Connecticut bond statute were presumably the reasons given for the earlier denial of the motion to remand based on ERISA preemption. The district court did not mention the other state law claims asserted against NIC, although it may simply have assumed that they were similarly preempted. Bleiler then took the instant appeal. DISCUSSION Under ERISA § 502(f), 29 U.S.C. § 1132(f), district courts have jurisdiction over actions by plan fiduciaries to enforce ERISA obligations, including those owed under Section 515, which states that [e]very employer who is obligated to make contributions to a multiemployer plan under the terms of the plan or under the terms of a collectively bargained agreement shall, to the extent not inconsistent with law, make such contributions in accordance with the terms and conditions of such plan or such agreement. 29 U.S.C. § 1145. ERISA defines an “employer” as “any person acting directly as an employer, or indirectly in the interest of an employer.” 29 U.S.C. § 1002(5). The district court held that neither Cristwood nor NIC fell within this definition. We agree. Bleiler argues that because Cristwood and NIC guaranteed Testa’s ERISA obligations, they were “acting indirectly in the interest of an employer.” Id. However, our recent decision in Greenblatt v. Delta Plumbing & Heating Corp., 68 F.3d 561 (2d Cir.1995), forecloses Bleiler’s argument with respect to NIC. Greenblatt expressly held that for ERISA purposes, “a surety is not an ‘employer,’ ” id. at 576, at least absent some type of agency or ownership relationship or an assumption of the employer’s functions with regard to the administration of an ERISA plan, id. at 575. Bleiler’s amended complaint contains no suggestion that any of the latter circumstances" }, { "docid": "4150394", "title": "", "text": "RULING ON PLAINTIFF’S MOTION TO AMEND AND DEFENDANTS’ MOTION TO DISMISS NEVAS, District Judge. The plaintiff, Douglas Bleiler (“Bleiler”), a trustee of the International Union of Operating Engineers Local Union 478 Benefit Funds (the “Benefit Funds”), initially filed this action under Conn. Gen.Stat. Ann. § 49-42 (West 1994) in Connecticut Superior Court against the defendants, Cristwood Contracting Co., Inc. (“Cristwood”) and Netherlands Insurance Co. (“NIC”) (collectively referred to as “the defendants”). Cristwood is the principal and NIC is the surety on a payment bond issued for work on the Bucks Hill Park Project (the “Project”), a public contract. On December 2, 1993, the defendants removed this action to federal court. On August 2, 1994, the court denied Bleiler’s motion to remand, holding that the Employee Retirement Income Security Act of 1974, 29 U.S.C.A. § 1001 et seq. (West 1985) (“ERISA”), preempted Bleiler’s state claims under Conn. Gen.Stat. Ann. § 49-42. Currently pending before the court are Bleiler’s motion to amend the complaint [doc. # 12] and the defendants’ motion to dismiss the complaint under Rule 12(b)(6), Fed. R.Civ.P., for failure to state a claim upon which relief may be granted [doc. # 9]. For the reasons that follow, the plaintiffs motion to amend is GRANTED and the defendants’ motion to dismiss the Second Amended Complaint is GRANTED. STANDARD OF REVIEW I. Motion to Amend Bleiler contends that the defendants are liable under a payment bond to remedy subcontractor Testa Excavating, Inc.’s (“Testa”) breach of its obligations under a collective bargaining agreement to contribute pension benefits to the Benefit Funds for each hour that Local 478 operating engineers worked for Testa on the Project. In furtherance of that theory, Bleiler has moved to amend the complaint to allege that Cristwood is an “employer” under ERISA, 29 U.S.C.A. § 1002(5), and thus is liable under the bond to remedy Testa’s breach of the collective bargaining agreement. (See Req. for Leave to File a Second Am. Compl.) Rule 15(a) requires that permission to amend a pleading “shall be freely given when justice so requires.” See Rule 15(a), Fed.R.Civ.P. The decision whether to grant" }, { "docid": "4150400", "title": "", "text": "denied sub nom., 469 U.S. 884, 105 S.Ct. 253, 83 L.Ed.2d 190 (1984). Once challenged, the burden of establishing a federal court’s subject matter jurisdiction rests on the party asserting jurisdiction. See Thomson v. Gaskill, 315 U.S. 442, 446, 62 S. Ct. 673, 675, 86 L.Ed. 951 (1942); Grafon Corp. v. Hausermann, 602 F.2d 781, 783 (7th Cir.1979). FACTS For the purposes of this ruling, the following facts are accepted as true. Under the terms of a public contract with the City of Waterbury, Connecticut, Cristwood became the prime general contractor on the Project, located in Waterbury, Connecticut. Cristwood, as principal, and NIC, as surety, executed a bond pursuant to Conn. Gen.Stat. § 49-42 by which the defendants bound themselves, jointly and severally, to satisfy any claimants who were not paid by Cristwood in connection with the Project. Cristwood thereafter hired Testa as a subcontractor to perform labor and services in connection with the Project. Testa subsequently entered into a collective bargaining agreement by which Testa agreed to contribute to the Benefit Funds of the Local 478 operating engineers whom Testa employed on the Project. Neither Cristwood nor NIC were signatories to this agreement. Testa failed to pay $13,671.96 in benefits for the period of July 1, 1992 through November 14, 1992. DISCUSSION This case presents the question of whether a general contractor and its surety, neither of which are signatories to a collective bargaining agreement between a subcontractor and its employees, are “employers” under ERISA and thus liable to pay the subcontractor’s unpaid contributions under the collective bargaining agreement. NIC, the surety, argues that it is not an “employer” under ERISA and therefore cannot be liable for unpaid contributions to the collective bargaining agreement between the Benefit Funds and Testa. Conversely, Bleiler argues that NIC falls within ERISA’s definition of “employer.” Under ERISA, Every employer who is obligated to make contributions to a multiemployer plan under the terms of the plan or under the terms of a collectively bargained agreement shall, to the extent not inconsistent with law, make such contributions in accordance with the terms and conditions of" }, { "docid": "9675722", "title": "", "text": "Our decision on this matter is controlled by two opinions of this court issued after the district court’s decision. In both Xaros v. U.S. Fidelity & Guaranty Co., 820 F.2d 1176, 1180 (11th Cir.1987), and Laborers Local 938 Joint Health & Welfare Trust Fund v. B.R. Starnes Co. of Florida, 827 F.2d 1454, 1456 (11th Cir.1987), the plaintiffs brought ERISA claims not against their immediate employers, but against the employers’ subcontractors and the subcontractors’ sureties. Both panels concluded that Congress did not intend ERISA coverage to extend so far. The Xaros court agreed with the Ninth Circuit that “[njeither the legislative history of ERISA, see 1974 U.S.Code Cong. & Ad. News 4639, nor of its 1980 amendments, see 1980 U.S.Code Cong. & Ad.News 2918, indicate that Congress meant to expand the concept of employer or the jurisdiction of the federal courts to include sureties, whose obligations are fixed by contract and regulated by state law for the protection of the public.” 820 F.2d at 1179 (quoting Carpenters Southern California Administrative Corp. v. D & L Camp Construction Co., 738 F.2d 999, 1000-01 (9th Cir.1984)). Although this case differs factually from Xaros and Laborers Local 938 in that it involves the immediate employer’s surety rather than a surety of an employer’s subcontractor, the emphasis of those cases dictates the same result here. The Xaros court focused on two aspects of the employer-surety relationship in excluding the surety from ERISA’s coverage: (1) the surety was not a signatory to the collective bargaining agreement giving rise to the ERISA claim, and (2) the surety could not be said to have acted “indirectly in the interest of an employer, in relation to an employee benefit plan” when its purpose was to protect those the employer might harm. See id. at 1180; see also Laborers Local 938, 827 F.2d at 1457. Balboa was likewise not a signatory to the collective bargaining agreement mandating contribution to the funds, and the surety bond it issued was, in each instance, expressly for the protection of the general contractor, not FHM. The surety thus falls squarely under the rationale" } ]

[ { "docid": "20171593", "title": "", "text": "court concluded that “the defendant was not prejudiced by use of the deposition.” Tr. at 1590. On appeal, McGowan argues that the district court violated Federal Rule of Evidence 804(a)(4) and the Confrontation Clause in declaring LaMie “unavailable” for trial, admitting her deposition testimony into evidence, denying his requests for an independent medical examination of LaMie, and denying a request for an evidentiary hearing on the question of LaMie’s unavailability at the time of trial. We review a district court’s decision to admit deposition testimony based on unavailability for abuse of discretion. United States v. Donaldson, 978 F.2d 381, 392 (7th Cir.1992). Interpretation of the Confrontation Clause is a legal question that we review de novo. United States v. Van Sack, 458 F.3d 694, 701 (7th Cir.2006); United States v. Smith, 454 F.3d 707, 714 (7th Cir.2006). When testimonial evidence is at issue, the Confrontation Clause of the Sixth Amendment requires that the government demonstrate that the witness is unavailable for trial and that the defendant had a prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). We begin with the timeliness and soundness of the district court’s determination that LaMie was unavailable to testify due to “then existing physical or mental illness or infirmity.” Fed. Evid. 804(a)(4). The government bears the burden of demonstrating that its witness is unavailable to testify at trial. Donaldson, 978 F.2d at 392; Burns v. Clusen, 798 F.2d 931, 936-37 (7th Cir.1986). McGowan first complains that the district court relied on a finding of unavailability made in 2005 to hold that LaMie was unavailable for trial on January 8, 2007. On the morning that the trial was scheduled to begin, McGowan requested an evidentiary hearing based on what he characterized as new evidence regarding LaMie’s medical condition. Citing observations of LaMie at her December 18, 2006 deposition, the much earlier letter from Dr. Busse, and the out-of-state car trip that LaMie took in 2004, McGowan claimed that LaMie’s condition had improved to such an extent that she was available for trial. According to McGowan’s counsel," } ]

[ { "docid": "11657124", "title": "", "text": "[despite] the lack of a timely and specific objection before the district court....”). B. We cannot conclude that the district court plainly erred in admitting certificates of authentication for foreign public and business records into evidence. “The Sixth Amendment to the United States Constitution, made applicable to the States via the Fourteenth Amendment, provides that ‘[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.’ ” Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009) (alterations in original) (citation omitted). The Confrontation Clause “guarantees a defendant’s right to confront those who ‘bear testimony’ against him. A witness’s testimony against a defendant is thus inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination.” Id. (internal quotation marks and citation omitted). “To rank as ‘testimonial,’ a statement must have a ‘primary purpose’ of ‘establishing] or proving] past events potentially relevant to later criminal prosecution.” Bullcoming v. New Mexico, — U.S.—, 131 S.Ct. 2705, 2714 n. 6, 180 L.Ed.2d 610 (2011) (quoting Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006)). The “core class of testimonial statements” identified by the Supreme Court includes: (1) “ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially;” (2) “extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions;” and (3) “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial” Crawford v. Washington, 541 U.S. 36, 51-52, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (internal quotation marks and citations omitted). In Melendez-Diaz, the Supreme Court decided that “certificates of analysis,” showing the results of forensic analysis performed on a seized substance that turned out to be cocaine, were testimonial “affidavits ‘made under circumstances" }, { "docid": "21475977", "title": "", "text": "sentence as to the illegal re-entry conviction and a 36-month sentence as to the false claim conviction, with the sentences running concurrently. Macias now appeals his convictions. II. ANALYSIS A. Confrontation Clause Violation Macias contends that the district court’s admission of the border patrol agents’ amending affidavit, which was attached to his delayed registration of birth, violated his rights under the Sixth Amendment’s Confrontation Clause. The Confrontation Clause guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const. Amend. VI. The Confrontation “Clause forbids ‘admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.’ ” Ocampo v. Vail, 649 F.3d 1098, 1107 (9th Cir.2011) (quoting Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)). In the case at bar, the government does not claim that the witnesses were unavailable or that Macias had a prior opportunity to cross examine them. Thus, the dispute is whether the affidavit constituted a testimonial statement. Generally, we review de novo alleged violations of the Confrontation Clause. United States v. Bustamante, 687 F.3d 1190, 1193 (9th Cir.2012). Here, however, although Macias objected to the admission of the amending affidavit, he did not object on the basis of a violation of the Confrontation Clause. In his motion in limine filed just prior to the instant trial, Macias argued that the government should be precluded from introducing the border patrol agents’ amending affidavit based on, among other things, hearsay, lack of personal knowledge, and impermissible vouching. Because Macias failed to preserve the argument by making a Confrontation Clause objection, this issue should be reviewed for plain error. United States v. Anekwu, 695 F.3d 967, 972-73 (9th Cir.2012) (reviewing Confrontation Clause argument for plain error). To show plain error, Macias must demonstrate: (1) error; (2) that is clear or obvious; (3) that affects the defendant’s substantial rights; and (4) that “the error seriously affects the fairness, integrity or public reputation of" }, { "docid": "23377743", "title": "", "text": "124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the most recent Supreme Court case governing the admissibility of out-of-court testimonial statements. No doubt the Government passes on this argument because it recognizes that Crawford applies only to testimonial statements made prior to trial, and the live two-way video testimony at issue in this case was presented at trial. The dissenters contend that the fact that a witness is legally unavailable necessarily means that any testimony given by that witness, by any means, is hearsay testimony subject only to the requirements of Crawford— unavailability and an opportunity to cross-examine. In addition to its departure from longstanding precedent, this reasoning assumes away the constitutional issue in this case — whether the confrontation that occurred is constitutionally sufficient. Crawford does not answer this question. . The district court found that the Government had demonstrated the existence of exceptional circumstances sufficient to justify the taking of a Rule 15 deposition. (R.3-314 at 26.) The Government contends, therefore, that it would have been proper to have read into the trial record deposition testimony taken pursuant to Rule 15. And, it argues without citation other than Gigante — that two-way video conference testimony is constitutionally superior to admission of Rule 15 deposition testimony at trial because it allows defendants and witnesses to see each other (albeit through a television monitor), provides for cross-examination at the time of trial, and gives the jury the opportunity to see witnesses instead of just hearing their words read from a deposition transcript. Thus, the Government concludes, admission of two-way video conference testimony is sufficiently protective of defendants' Sixth Amendment rights to confrontation whenever deposition testimony taken pursuant to Rule 15 would be admitted. . The Defendants also objected at trial to conducting the video conference in the United States Attorney’s office. While the Defendants have abandoned this objection on appeal, we remain concerned with the shift of a trial to a United States Attorney's office. . There is no evidentiary support for the district court's finding that the Government's interest in expeditiously and justly resolving the case created a necessity for" }, { "docid": "7180853", "title": "", "text": "accompanying the discovery further explained that “there was poor record keeping for [birth certificates] prior to World War II.” Based on this information, Bustamante objected to the admission, of Exhibit 1, arguing that it was not a properly authenticated foreign public document under Federal Rule of Evidence 902(3) and that its authenticity was suspect because there was no longer any record in the Philippines of Bustamante’s birth. At the district court’s direction, the government took steps to authenticate Exhibit 1, obtaining a chain of certifications establishing that Demetrio B. Salupisa was authorized to issue birth certificates and that Salupisa’s signature was similar to the record on file with the National Statistics Office. After the district court ruled that FRE 902(3) had been satisfied, Bustamante further objected to the admission of Exhibit 1, arguing that it was testimonial evidence that was inadmissible under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). The district court held that the document was not testimonial. After a four-day jury trial, Bustamante was convicted on all three counts and sentenced to thirty months imprisonment. Bustamante timely appealed, and we have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo whether the admission of a document violated a defendant’s Confrontation Clause rights. United States v. Chung, 659 F.3d 815, 832 (9th Cir.2011). III. The Confrontation Clause of the Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” In Crawford v. Washington, the Supreme Court held that this “bedrock procedural guarantee” prohibits the admission of “testimonial statements of a witness who [does] not appear at trial unless [the witness is] unavailable to testify, and the defendant ha[s] had a prior opportunity for cross-examination.” 541 U.S. at 42, 53-54; 124 S.Ct. 1354. Although the Court declined “to spell out a comprehensive definition of ‘testimonial,’ ” id. at 68, 124 S.Ct. 1354, it provided examples of “various formulations,” including: [E]x parte in-court testimony or its" }, { "docid": "14267199", "title": "", "text": "2 (1st.Cir.1992)). B. Confrontation Clause Objection Cabrera-Rivera also contends that his convictions on all three counts should be vacated and a new trial awarded because the government made improper use of out-of-court statements of his alleged eo-par ticipants, Cruz-Marrero and Baez-Rodriguez, in violation of Cabrera-Rivera’s Sixth Amendment confrontation right. The Confrontation Clause of the Sixth Amendment to the Constitution provides that a criminal defendant “shall enjoy the right ... to be confronted with the witnesses against him.... ” U.S. Const. amend. VI. In Crawford v. Washington, the Supreme Court made clear that the Confrontation Clause generally prohibits the admission of testimonial out-of-court statements against a criminal defendant. 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); see also United States v. Earle, 488 F.3d 537, 542 (1st Cir.2007) (“Crawford held that the Confrontation Clause bars admission of testimonial hearsay in a criminal case unless the declarant is unavailable and the accused has had a prior opportunity for cross-examination.”). There is no dispute that the out-of-court confessions of Elias Cruz-Marrero and Jonathan Baez-Rodriguez, “taken by police officers in the course of [custodial] interrogations,” are testimonial in nature. Crawford, 541 U.S. at 52, 124 S.Ct. 1354. Thus, unless the statements fall within one of the narrow categories of out-of-court testimonial statements that do not offend the Confrontation Clause, admission of the statements at trial was improper. This court has identified three circumstances where out-of-court statements, though testimonial, may nevertheless properly be admitted into evidence: where “(1) the statement is not hearsay in that it is being admitted for a purpose other than establishing the truth of the matter asserted; (2) the declarant testifies at trial; or (3) the defendant had a prior opportunity to cross-examine the declarant and the declarant is unavailable.” United States v. Cruz-Diaz, 550 F.3d 169, 176 (1st Cir. 2008). On appeal, the government relies solely upon the first exception, contending that the statements of Cruz-Marrero and Baez-Rodriguez (through the testimony of agents Torres and Rivera) are not hearsay. Thus, the government argues, the introduction of the confessions raises no Confrontation Clause problem because “the statements were" }, { "docid": "3929332", "title": "", "text": "the credibility of Esparza’s witnesses, and reiterated that, “[a]gain, this defendant bought this vehicle.... He made a choice to enter that port of entry knowing he had drugs, hoping he would make it through.” The jury convicted Esparza. The district court sentenced him to 24 months of custody, followed by three years of supervised release. Esparza timely appealed. II Esparza argues that the admission of the documents containing Hernandez’s statement violated the Confrontation Clause of the Sixth Amendment. We review whether a defendant’s rights under the Confrontation Clause were violated de novo. United States v. Matus-Zayas, 655 F.3d 1092, 1098 (9th Cir.2011). A The Confrontation Clause states that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” In Crawford v. Washington, the Supreme Court abrogated decades of Confrontation Clause jurisprudence, which had allowed the admission of an unavailable witness’s out-of-court statement so long as it “falls under a ‘firmly rooted hearsay exception’ ” or bears ‘particularized guarantees of trustworthiness.’ ” 541 U.S. 36, 60, 62-69, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (quoting Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980)). Instead, the Supreme Court held that a hearsay testimonial statement of a witness who does not appear at trial may never be used unless “the [witness] is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” Id. at 59, 124 S.Ct. 1354. As the Court explained, the “bedrock procedural guarantee” of the Confrontation Clause “commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” Id. at 42, 61, 124 S.Ct. 1354. While Crawford declined to provide a comprehensive definition of “testimonial,” see id. at 68, 124 S.Ct. 1354, the Court stated “[vjarious formulations of [the] core class of ‘testimonial’ statements:” ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, pri- or testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to" }, { "docid": "4844494", "title": "", "text": "error asserted in this case is a Sixth Amendment Confrontation Clause violation that arises from the district court entering into evidence the Medical Examiner’s findings form without cross-examination of the author of that form. The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const. amend. VI. In Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court held that the Confrontation Clause enables a defendant to bar the admission of testimonial statements of a witness who did not appear at trial unless the witness was unavailable to testify and the defendant had a prior opportunity to cross-examine him. The Court further explained that “testimony” is a “ ‘solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ ” Id. at 51, 124 S.Ct. 1354 (quoting 2 N. Webster, An American Dictionary of the English Language (1828)). Assuming that the Medical Examiner’s findings form is testimonial, and that its admission was an error, and a plain one at that, we need only decide whether Doyle’s substantial rights were affected. We conclude that they were not. Doyle argues that his inability to question Dr. Dutra about the notes and cross-outs on the findings form denied him a substantial right — ie., the right to confront a witness bearing testimony against him. The issue we face is whether the admission of the findings form without cross-examination of its author affected Doyle’s substantial rights. And to convince us, Doyle must demonstrate that, but for the Confrontation-Clause error, the outcome of the trial probably would have been different. United States v. Prude, 489 F.3d 873, 880 (7th Cir.2007). Doyle provides no evidence, much less an argument, to make that showing; instead he relies simply on a Crawford violation to prove that his substantial rights were affected. But the mere presence of a Crawford violation does not mean that the outcome of the trial probably would have been different; indeed, we find that, in this case, the error had" }, { "docid": "23332025", "title": "", "text": "1504, 84 L.Ed.2d 518 (1985). IV. A. At trial, Arnold also challenged the admissibility of these three statements under the Confrontation Clause of the Sixth Amendment. Quite understandably then, quite wrongly now, the district court rejected these challenges on the ground that the applicability of a traditional hearsay exception to each statement (in this instance, the excited-utterance exception) freed the evidence from challenge under the Confrontation Clause in accordance with Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). In light of the Supreme Court’s intervening decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), that is no longer an accurate mode of analysis. See id. at 61, 124 S.Ct. 1354. Under Crawford, when the prosecution seeks to introduce “testimonial” statements against a criminal defendant, when in the words of the Sixth Amendment the “accused” is being subjected to “witnesses against him,” U.S. Const, amend. VI, the defendant generally has a right to confront those witnesses — without regard to what the modern-day Federal (or State) Rules of Evidence have to say about the matter. The Confrontation Clause, Crawford thus establishes, bars the “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” 541 U.S. at 53-54, 124 S.Ct. 1354 (emphasis added). In announcing this rule, Crawford chose not to provide a “comprehensive” definition of “testimonial” hearsay, id. at 68, 124 S.Ct. 1354, but it did offer initial guidance on the meaning of the term. The Court explained that “testimony” involves “‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.’” Id. at 51, 124 S.Ct. 1354 (quoting 2 N. Webster, An American Dictionary of the English Language (1828)). And it explained that testimonial hearsay at a minimum includes “a formal statement to government officers” by “[a]n accuser” in the form of an affidavit, a deposition, prior testimony or the like. Id. at 51-52, 124 S.Ct. 1354. While these initial explanations sufficed to resolve Crawford, which" }, { "docid": "15055307", "title": "", "text": "against him.” U.S. Const, amend. VI. Summers maintains that he was convicted by the testimony of witnesses whom he was not permitted to cross-examine, in derogation of the Confrontation Clause. According to Summers, the government was constitutionally compelled to produce at trial the laboratory employees who signed the internal log, along with the subordinate analysts who actually conducted the DNA typing upon which Shea’s expert conclusions were premised. A. In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court unanimously ruled that the defendant’s Confrontation Clause rights had been violated by the admission into evidence of his nontestifying wife’s statement to the police. The opinion of the Court, authored by Justice Scalia, overruled Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), which had permitted statements of unavailable witnesses to be admitted at trial insofar as they bore “adequate indicia of reliability,” meaning that they satisfied a “firmly rooted hearsay exception” or were otherwise bolstered by “particularized guarantees of trustworthiness.” Roberts, 448 U.S. at 66, 100 S.Ct. 2531. Crawford changed the law to condition the admission of such statements on (1) the witness being unavailable at trial, and (2) the defendant having had the prior opportunity to cross-examine the witness. Crawford applies whenever “testimonial evidence is at issue.” 541 U.S. at 68, 124 S.Ct. 1354. Inasmuch as it was the result of formal police interrogation, the evidence at issue in Crawford plainly met the Court’s criterion, although it elected to “leave for another day any effort to spell out a comprehensive definition of ‘testimonial.’ ” Id. The Court did distinguish “nontestimonial hearsay,” however, noting that “an approach that exempted such statements from Confrontation Clause scrutiny altogether” would be consistent with the Framers’ intent. Id.; cf. United States v. Cabrera-Beltran, 660 F.3d 742, 753 (4th Cir.2011) (holding that border crossing records not created for trial are nontestimonial and admissible under public records exception to hearsay rule). The distinction between testimonial and nontestimonial statements came to the forefront in Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224" }, { "docid": "20894313", "title": "", "text": "Jury Trial, Page ID # 8146-47.) Collins challenges the admissibility of this testimony on the theory that it violated both the Confrontation Clause and the rule against hearsay. Collins argues that the people to whom Agent O’Neil referred in this testimony have never been identified and that the admission of their views amounts to the admission of testimonial out-of-court statements for the truth of the matter asserted. 1. Confrontation Clause The Confrontation Clause of the Sixth Amendment “guarantees a criminal defendant the right ‘to be confronted with the witnesses against him.’ ” United States v. Johnson, 581 F.3d 320, 324 (6th Cir.2009) (quoting U.S. Const, amend. VI). The Confrontation Clause bars the “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). For a statement to be considered “testimonial” under the Confrontation Clause, the declarant must have “intended] to bear testimony against the accused.” United States v. Cromer, 389 F.3d 662, 675 (6th Cir.2004). This determination “depends on whether a reasonable person in the declarant’s position would anticipate his statement being used against the accused in investigating and prosecuting the crime.” Johnson, 581 F.3d at 325 (internal quotation marks omitted). There is no evidence that the suspected methamphetamine manufacturers Agent O’Neil questioned throughout his career “intended to bear testimony” against Collins or his co-defendants. Consequently, the admission of Agent O’Neil’s testimony did not violate Collins’ rights under the Confrontation Clause. 2. Rule Against Hearsay The rule against hearsay bars the admission of out-of-court statements offered to prove the truth of the matter asserted. Fed.R.Evid. 801(c), 802. Although Agent O’Neil’s .testimony was based on out-of-court statements made by third parties suggesting that a one-to-one conversion ratio was possible; the government argues that this testimony was not admitted for the truth of the matter asserted because Agent O’Neil later testified that the average conversion ratio was lower than one-to-one. This argument lacks merit. Identification of a correct conversion ratio" }, { "docid": "22240015", "title": "", "text": "2008. The government also sought to introduce a certificate of non-existence of record (“CNR”) to show that there was no record that Orozco-Acosta had ever applied for, or been granted, permission to re-enter the United States following his removal. The district court overruled Orozco-Acosta’s objections that admission of these documents would violate his rights under the Sixth Amendment’s Confrontation Clause, and both documents were admitted into evidence at Orozco-Acosta’s trial. The jury also heard the testimony of Agent Dwain Holmes, the custodian of Orozco-Acosta’s Alien Registration File (“A-File”). An A-File contains paper records concerning an alien’s immigration status, including records of removal and applications for re-entry. Agent Holmes testified that his review of Orozco-Acosta’s A-File, as well as an agency computer database, C.L.A.I.M.S., disclosed no documentation that Orozco-Acosta had applied for permission to re-enter the United States. The jury found Orozco-Acosta guilty of violating 8 U.S.C. § 1326. The district court sentenced Orozco-Acosta to seventy-one months in prison, followed by three years of supervised release, and ordered a $100 assessment. DISCUSSION 1. Confrontation Clause The Confrontation Clause of the Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const. amend. VI. In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court held that the Confrontation Clause guarantees a defendant’s right to confront those “who ‘bear testimony’ ” against him. Id. at 51, 124 S.Ct. 1354 (citation omitted). The Court ruled that “[tjestimonial statements of witnesses absent from trial [are admissible] only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” Id. at 59, 124 S.Ct. 1354. The Court described various formulations of the “core class” of testimonial statements without expressly endorsing any formulation. Id. at 51-52, 124 S.Ct. 1354. Among the examples so discussed were “statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions” as well as “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement" }, { "docid": "14723161", "title": "", "text": "District Court’s denial of Rolan’s petition for habeas corpus for violation of the Fifth Amendment. C. Confrontation Clause Because Francisco Santiago died before Rolan’s retrial, the transcript of his testimony from Rolan’s original trial and his preliminary hearing was read into evidence. Rolan now argues that the trial court’s decision to admit Santiago’s testimony violated his rights under the Confrontation Clause because he was deprived of an adequate cross-examination of the witness. Because we find no constitutional error, we reject Rolan’s position that the Santiago testimony should be struck from the record and a retrial granted. In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court held that out-of-court testimonial statements may not be offered against a defendant at trial unless the declarant of the statement is unavailable and the defendant had an opportunity to cross-examine the declarant. Id. at 68, 124 S.Ct. 1354 (“Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.”). We now must consider whether the Superior Court’s determination that admitting Francisco Santiago’s testimony at trial did not violate Rolan’s rights under the Confrontation Clause is contrary to, or an unreasonable application of, Crawford. See 28 U.S.C. § 2254(d)(1). In Rolan’s first habeas corpus proceeding, we held that his trial counsel had been constitutionally ineffective by failing to investigate Rolan’s self-defense theory and failing to call two witnesses in support of that theory. Rolan now argues that his prior counsel was ineffective in his cross-examination of Francisco Santiago because prior counsel did not question him about inconsistent statements or explore a grant of immunity given by the Commonwealth. The parties do not dispute the fact that Rolan cross-examined Francisco Santiago when he testified at the first trial. The issue here is whether prior counsel’s cross-examination of Francisco Santiago was adequate under Crawford despite our previous finding that counsel was ineffective for other reasons. We hold that it was more than adequate. Crawford does not provide a specific standard for determining whether a defendant had an opportunity" }, { "docid": "20302733", "title": "", "text": "explain below, no Confrontation Clause violation occurred. The Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right to ... be confronted with witnesses against him.” This constitutional right to confrontation bars extrajudicial “testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). While Jones concedes that his statements on the phone calls were admissible under the party opponent exception to hearsay, see Fed.R.Evid. 801(d)(2)(A), he challenges the admission of the statements made by Otis and Austin during the calls. Specifically, Jones now contends that Otis and Austin gave “testimonial” statements on the prison phone calls without Jones having had the opportunity to cross-examine the declarants before or at trial. We disagree with. Jones’s argument. While the Supreme Court has postponed “any effort to spell out a comprehensive definition of ‘testimonial,’ ” Michigan v. Bryant, — U.S. —, 131 S.Ct. 1143, 1153, 179 L.Ed.2d 93 (2011) (internal quotations omitted), it has limited the Confrontation Clause’s reach to those statements “made under circumstances which would lead an objective witness reasonably to believe that the statements would be available for use at a later trial.” Crawford, 541 U.S. at 52, 124 S.Ct. 1354. We have paraphrased this standard to mean that statements are testimonial when “a reasonable person in the declarant’s position would have expected his statements to be used at trial — that is, whether the de-clarant would have expected or intended to ‘bear witness’ against another in a later proceeding.” United States v. Udeozor, 515 F.3d 260, 268 (4th Cir.2008). In conducting that contextual inquiry, we reject the proposition advanced by Jones that a declarant’s knowledge that he is being recorded is dispositive. Even if Otis and Austin were aware that the prison was recording their conversation, a declarant’s understanding that a statement could potentially serve as criminal evidence does not necessarily denote “testimonial” intent. See Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266," }, { "docid": "21433795", "title": "", "text": "between her husband and the victim were admitted in violation of Dr. Udeozor’s Sixth Amendment right “to be confronted with the witnesses against [her].” U.S. Const, amend. VI. The Supreme Court has interpreted the Confrontation Clause of the Sixth Amendment as barring “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had a prior opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). As Crawford and later Supreme Court cases make clear, a statement must be “testimonial” to be excludable under the Confrontation Clause. See Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 2273, 165 L.Ed.2d 224 (2006). This limitation is grounded in the text and history of the Sixth Amendment, which “applies to ‘witnesses’ against the accused—in other words, those who ‘bear testimony.’ ” Crawford, 541 U.S. at 51, 124 S.Ct. 1354. While the Supreme Court has yet to spell out a comprehensive definition of the term “testimonial,” it has provided guidance as to its meaning. To begin, in Crawford, the Court set forth three formulations of the “core class of ‘testimonial’ statements”: One, “ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prose-cutorially”; two, “extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions”; and three, “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Id. at 51-52, 124 S.Ct. 1354 (citations and quotations omitted). As the Court in Crawford pointed out, these three formulations of the “core class” of testimonial statements share a “common nucleus.” Id. at 52, 124 S.Ct. 1354. All three of these formulations indicate, twice explicitly, that the “common nucleus” of the “core class” of testimonial statements is whether a reasonable person in the declarant’s position would have expected his statements" }, { "docid": "19090559", "title": "", "text": "States v. Jimenez, 464 F.3d 555, 558 (5th Cir.2006); United States v. Bell, 367 F.3d 452, 465 (5th Cir.2004). III. Whether There Was a Violation of the Confrontation Clause The Confrontation Clause of the Sixth Amendment states that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const. Amend. VI. In Crawford v. Washington, 541 U.S. 36, 53-54, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court held that the right to confrontation bars the “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” See also United States v. Harper, 527 F.3d 396, 401 (5th Cir.2008); United States v. Flores, 286 Fed.Appx. 206, 214 (5th Cir.2008). There is no dispute that the playing of the video taped deposition constituted the admission of testimonial statements of a witness who did not appear at trial. At issue in this case is whether Garay-Ramirez was “unavailable to testify” at Tirado-Tirado’s trial, and whether Tirado-Tirado had a prior opportunity to cross-examine Garay-Ramirez. A. Unavailability A witness is “unavailable” for Confrontation Clause purposes if the “prosecutorial authorities have made a good-faith effort to obtain his presence at trial.” Ohio v. Roberts, 448 U.S. 56, 74, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) (quoting Barber v. Page, 390 U.S. 719, 724-25, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968)), overruled on other grounds by Crawford, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177. “The lengths to which the prosecution must go to produce a witness ... is a question of reasonableness.” Id. (quoting California v. Green, 399 U.S. 149, 189 n. 22, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970) (Harlan, J., concurring)). “The law does not require the doing of a futile act. Thus, if no possibility of procuring the witness exists (as, for example, the witness’ intervening death), ‘good faith’ demands nothing of the prosecution. But if there is a possibility, albeit remote, that affirmative measures might produce the declarant, the obligation" }, { "docid": "23439751", "title": "", "text": "requires that it be made at the time the evidence is offered....”) (internal quotation marks omitted); cf. United States v. Gibbs, 739 F.2d 838, 847-49 (3d Cir.1984) (en banc) (holding that Confrontation Clause objection made for first time in Rule 29 Motion for Acquittal following government’s case-in-chief, despite prior hearsay objection to same evidence, was untimely). Accordingly, the issue was not preserved for appeal, and we review for plain error. See United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). The Confrontation Clause of the Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const, amend. VI. This clause bars the introduction of out-of-court testimonial statements unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. See Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Inherent in this rule, however, is the limitation that “a statement must be ‘testimonial’ to be ex-cludable under the Confrontation Clause.” United States v. Udeozor, 515 F.3d 260, 268 (4th Cir.2008). “Only statements of this sort cause the declarant to be a ‘witness’ within the meaning of the Confrontation Clause.” Davis v. Washington, 547 U.S. 813, 821, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). The most comprehensive definition of the term “testimonial” is found in Crawford, where the Supreme Court provided three formulations of what it refers to as the “core class of ‘testimonial’ statements.” 541 U.S. at 51, 124 S.Ct. 1354. These formulations include: ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, pri- or testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; [and] statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. Id. at 51-52," }, { "docid": "23377766", "title": "", "text": "trial began, does not change the analysis. There was no way to bring the witnesses physically into court. The witnesses’ testimony could only be obtained by deposition or two-way transmission. That Rule 15 provides for the defendant’s presence at a deposition is similarly irrelevant. The issue before this court is whether presence is constitutionally required for either the deposition or its functional replacement, the two-way video transmission. The constitutionality of admitting out-of-court, testimonial statements is governed by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177. “Testimonial statements of witnesses absent from trial [are admissible] only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” Id. at 59, 124 S.Ct. at 1369. Physical presence is not mentioned, nor is it required. In this case, the wit nesses’ statements were unquestionably testimonial, and therefore the Crawford requirements would need to be satisfied. The defendant here was given a full opportunity to cross-examine the unavailable witnesses. Constitutional issue settled. Accordingly, there can be no question that the procedure utilized here, a mechanism for obtaining the out-of-court testimony of an unavailable witness, passes constitutional muster. III. For the foregoing reasons, I believe the live, two-way video transmission used in this case does not violate the defendant’s Sixth Amendment right to confrontation. Accordingly, I would affirm the judgment of the district court. . \"In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him ....’’ U.S. Const, amend. VI. . Rule 15 provides, in relevant part: Depositions (a) When Taken. (1) In General. A party may move that a prospective witness be deposed in order to preserve testimony for trial. The court may grant the motion because of exceptional circumstances and in the interest of justice (c) Defendant's Presence. (1) Defendant in Custody. The officer who has custody of the defendant must produce the defendant at the deposition and keep the defendant in the witness's presence during the examination, unless the defendant: (A) waives in writing the right to be present; or (B) persists in" }, { "docid": "188131", "title": "", "text": "Sixth Amendment objection at that point, which was overruled because the court found that Acosta had opened the door to the admission of those portions of the statements that bore directly on Marrufo’s cross-examination testimony. On the final day of trial, Acosta made an unsuccessful Sixth Amendment objection to the government’s initial questioning of Marrufo. He was convicted of conspiring to possess with the intent to distribute, and possession with the intent to distribute, five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1) and (b)(l)(A)(ii). II. The Confrontation Clause of the Sixth Amendment guarantees the right to confront hostile witnesses. We review, for plain error only, any Confrontation Clause issues that were not contemporaneously raised at trial. Confrontation Clause objections that were properly raised at trial are reviewed de novo, subject to harmless error analysis. In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Court fundamentally altered the role of the Confrontation Clause. Twenty-four years before Crawford, the Court collapsed the Confrontation Clause into the hearsay rules of the Federal Rules of Evidence in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), holding that statements of unavailable witnesses could be admitted, consistent with the Confrontation Clause, if they were reliable. Reliability was established by showing that a statement either met a “firmly rooted hearsay exception” or bore “particularized guarantees of trustworthiness.” Id. at 66, 100 S.Ct. 2531. In Crawford the Court replaced the Roberts standard with a bright-line rule: The Confrontation Clause prohibits the admission of an out-of-court testimonial statement unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. Crawford, 541 U.S. at 59, 124 S.Ct. 1354. III. Acosta claims three Confrontation Clause violations: the government’s questioning of Marrufo, the admission of the safety valve statement, and Lucero’s testimony about Marrufo’s statements. We address each in turn. A. Acosta asserts that the government’s questioning of Marrufo about his prior statements, during which Marrufo refused to answer some of the questions, violates the Confrontation Clause. Acosta did" }, { "docid": "12172760", "title": "", "text": "granted the government’s request under Rule 15 of the Federal Rules of Civil Procedure to take his testimony by videotaped deposition before he left the country. Cannon was present with\" his counsel during the deposition, and Jackson was subjected to full cross-examination. In an underdeveloped argument, Cannon asserts that the admission of the videotaped deposition was unfairly prejudicial and possibly unconstitutional because Jackson’s testimony was not subjected to the rigors of an actual trial. Although rare, preservation of witness testimony by deposition is authorized in criminal cases under Rule 15(a)(1) when “exceptional circumstances and ... the interests of justice” require it. The defendant’s presence is required, and the “scope and manner of the deposition examination and cross-examination must be the same as would be allowed during trial.” Rule 15(c), (e)(2). The rule provides that all or part of the deposition may be used as evidence “as provided by the Federal Rules of Evidence.” Rule 15(f). Cannon does not argue that the terms of the rule were not met, and we have previously upheld the use at trial of Rule 15 depositions against Confrontation Clause challenges. See, e.g., United States v. Donaldson, 978 F.2d 381, 392-93 (7th Cir.1992); United States v. Kehm, 799 F.2d 354, 360-61 (7th Cir.1986). These cases predate Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), but we see no reason, post-Crawford, to question the constitutionality of admitting fully cross-examined testimony preserved by a properly conducted Rule 15 deposition. Crawford held that the Confrontation Clause bars the admission of testimonial statements of witnesses absent from trial unless the witness is unavailable and the defendant had a prior opportunity to cross-examination. Id. at 68, 124 S.Ct. 1354. Both requirements were satisfied here. Cannon’s argument about unfair prejudice is frivolous. Cannon also questions the chain of custody for the crack-cocaine evidence used to convict him. Again, he did not raise this point below, so our review is for plain error. Hall, 142 F.3d at 996. Cannon suggests that powder cocaine seized at the scene from his brother could have been commingled with the crack cocaine" }, { "docid": "22240016", "title": "", "text": "Confrontation Clause of the Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const. amend. VI. In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court held that the Confrontation Clause guarantees a defendant’s right to confront those “who ‘bear testimony’ ” against him. Id. at 51, 124 S.Ct. 1354 (citation omitted). The Court ruled that “[tjestimonial statements of witnesses absent from trial [are admissible] only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” Id. at 59, 124 S.Ct. 1354. The Court described various formulations of the “core class” of testimonial statements without expressly endorsing any formulation. Id. at 51-52, 124 S.Ct. 1354. Among the examples so discussed were “statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions” as well as “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Id. at 51-52, 124 S.Ct. 1354 (ellipsis, internal quotations and citations omitted). On the issue before it, the Court held that statements taken by investigating police officers during interrogations were testimonial “under even a narrow standard.” Id. at 52, 124 S.Ct. 1354. Recently, in Melendez-Diaz v. Massachusetts, -U.S.-, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), the Supreme Court shed additional light on the contours of the term “testimonial.” The Court held that “certificates of analysis” by laboratory technicians confirming that substances possessed by the defendant were cocaine were testimonial statements under Crawford. Id. at 2532. The Court emphasized that the certificates were “quite plainly affidavits” and were “functionally identical to live, in-court testimony.” Id. at 2532. Moreover, not only were the certificates “ ‘made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,’ ” id. (quoting Crawford, 541 U.S. at 52, 124 S.Ct. 1354), but under state law the “sole purpose of" } ]

[ { "docid": "4297064", "title": "", "text": "however, his papers was [sic] in his vehicle.’ ”: 2 Petitioner had not yet violated 8 U.S.C. § 1304(e), requiring an alien to “at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him ____” Since petitioner stated that his papers were in his car, parked adjacent to the field, the officers should have afforded him the opportunity to produce the papers. Under the circumstances the papers were constructively in petitioner’s personal possession. It was reasonable for petitioner to leave the papers in his car while he engaged in heavy agricultural labor. Only if the petitioner refused to produce the papers, or was unable to produce valid papers, would he have committed a misdemeanor under § 1304(e), giving the INS officers probable cause to arrest him. Delete the paragraph at headnote #4 beginning with “Because petitioner’s arrest violated the Fourth Amendment ...” and substitute the following: “We granted rehearing in light of the Supreme Court’s decision in INS v. Lopez-Mendoza, — U.S. —, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984), that the exclusionary rule does not apply in civil deportation proceedings. Accordingly, even though we have found that petitioner’s arrest violated the Fourth Amendment, the information obtained as the result of the arrest (petitioner’s statements on Form 1-213) was admissible at his deportation hearing. On the basis of this evidence, we affirm the immigration judge’s order of deportation. To enable petitioner to seek any available alternative forms of relief and to move for a stay of deportation, our mandate shall issue forty-five days from the date of entry of this judgment. We also reinstate the immigration judge’s grant of 30 days voluntary departure time, to commence on the effective date of any order of deportation issued against petitioner.”" } ]

[ { "docid": "22439388", "title": "", "text": "agents’ Fourth Amendment violations do not make Orhorhaghe’s passport and 1-94 form any less probative of his illegal status. However, a Fourth Amendment violation need not undermine the probative value of the evidence seized in order to warrant suppression under the “egregious violation” exception. Were the rule to the contrary, the egregiousness exception would have little meaning, for the fruits of an illegal search or seizure ordinarily consist of physical evidence, the reliability of which is in no way affected by the manner in which the evidence is obtained. First, under the law of this circuit egregious violations are defined without reference to the probative value of the evidence obtained. In fact, we held in Adamson that “[w]hen evidence is obtained by deliberate violations of the fourth amendment, or by conduct a reasonable officer should know is in violation of the Constitution, the probative value of that evidence cannot outweigh the need for a judicial sanction. ” Adamson, 745 F.2d at 545 (citing Lopez-Mendoza). The rule enunciated in Adamson was not based on the effect a constitutional violation might have on the reliability of evidence obtained by the government — indeed, it expressly requires suppression of even the most probative evidence. Rather, it was rooted in “the vital function of preserving judicial integrity,” a function that is implicated whenever government agents deliberately or unreasonably violate rights of privacy guaranteed by the Fourth Amendment. Id. at 546. As we have previously explained, see Gonzalez-Rivera, 22 F.3d at 1451, Adamson disposes of the INS’s contention. Second, as we explained in both Gonzalez-Rivera and Arguelles-Vasquez, a close reading of the Lopez-Mendoza dictum indicates that a Fourth Amendment violation can be “egregious” even without undermining the probative value of evidence the government obtains as a result. See Gonzalez-Rivera, 22 F.3d at 1451; Arguelles-Vasquez, 786 F.2d at 1434r-35. The Lopez-Mendoza Court did not state that its egregious violation exception would apply only in a case in which the violation “might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained.” Rather, it simply stated that “we do not deal here ”" }, { "docid": "22439360", "title": "", "text": "compatriots committed numerous egregious violations of his Fourth Amendment rights. Although we do not agree with all of his claims, we do conclude that the agents committed egregious violations by seizing Orhorhaghe outside of his apartment, and by conducting a nonconsensual warrant-less entry into his apartment, in both instances on the basis of his Nigerian-sounding name. Accordingly, we agree that the BIA erred in reversing the Immigration Judge’s grant of the motion to suppress. A. In I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984), the Supreme Court held that the Fourth Amendment exclusionary rule does not apply in deportation proceedings. See id. at 1050, 104 S.Ct. at 3489. However, the Court expressly left open the possibility that the exclusionary rule might still apply in cases involving “egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained.” Id. at 1050-51,104 S.Ct. at 3489 (citing, inter alia, Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952); Matter of Toro, 17 I. & N. Dec. 340, 343 (1980)). In Adamson, we took up the Supreme Court’s suggestion. We held that, even in administrative proceedings in which the test announced in United States v. Janis, 428 U.S. 433, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976), (and applied in Lopez-Mendoza ) eliminates the exclusionary rule, administrative tribunals are still required to exclude evidence that was “obtained by deliberate violations of the fourth amendment or by conduct a reasonable officer should know is in violation of the Constitution.” Adamson, 745 F.2d at 545 (citing Lopez-Mendoza, 468 U.S. at 1050-51, 104 S.Ct. at 3489-90). Applying the same balancing test the Supreme Court had applied in Janis and Lopez-Mendoza, we held that when evidence is obtained by such an egregious violation of the Constitution, “the probative value of that evidence cannot outweigh the need for judicial sanction.” Id. In Gonzalez-Rivera, 22 F.3d at 1448-52, we applied the “egregious violation” exception — suggested in Lopez-Mendoza and adopted in Adamson — to require the suppression of evidence" }, { "docid": "23355793", "title": "", "text": "that the present case involves an egregious Fourth Amendment violation. Whether the conduct of the Border Patrol officers was sufficiently egregious to require application of the exclusionary rule is a question of law that we review de novo, United States v. McConney, 728 F.2d 1195,1200 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984), but the findings of fact are reviewed for substantial evidence. Elias-Zacarias, — U.S. -, 112 S.Ct. at 815. In clarifying the “egregiousness” exception, the Lopez-Mendoza Court cited Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), as an example of an egregious constitutional violation. To recover evidence of narcotics, the arresting officers in Rochin had forced the defendant to swallow an emetic solution to induce vomiting. Id. at 166, 72 S.Ct. at 206. According to the Ro-chin Court, conduct that “shocks the conscience” constitutes an egregious constitutional violation. Id. at 172, 72 S.Ct. at 209. As we explained in Adamson, however, “the Lopez-Mendoza Court’s citation to Rochin was [not ] meant to limit ‘egregious violations’ to those of physical brutality.” 745 F.2d at 545 n. 1. Instead, under Ninth Circuit law, all “bad faith violation[s] of an individual’s fourth amendment rights” are considered sufficiently egregious to “require[] application of the exclusionary sanction in a civil ... proceeding.” Id. at 545. Under Ninth Circuit law, a bad faith constitutional violation occurs when “evidence is obtained by deliberate violations of the fourth amendment, or by conduct a reasonable officer should have knoim is in violation of the Constitution.” Adamson, 745 F.2d at 545. (emphasis supplied). It appears that the BIA has also adopted a reasonableness standard to determine whether an officer has engaged in a bad faith constitutional violation. See Matter of Toro, 17 I. & N.Dec. 340, 343 (BIA 1980) (applying an objective standard to determine whether the arresting officers had acted in good faith). In applying an objective standard of “bad faith”, as required by Adamson, 745 F.2d at 546, we emphasize that in the present case we only determine what constitutes a bad faith" }, { "docid": "23355804", "title": "", "text": "individual's fourth amendment rights requires application of the exclusionary sanction in a civil tax proceeding. We believe that it does.” Adamson, 745 F.2d at 545. In Adamson, however, we declined to apply the exclusionary rule and determined that admitting the evidence would not have implicated the integrity of the courts because, in that case, the evidence had not been obtained through egregious conduct. See id. at 546. . See also Cervantes-Cuevas v. INS, 797 F.2d 707, 710 (9th Cir.1985) (recognizing that Lopez-Mendoza does not preclude application of the exclusionary rule in cases involving egregious constitutional violations or where the probative value of the evidence has been undermined). . We emphasize that neither we nor the Adam-son court hold that only bad faith violations are egregious, but rather that all bad faith constitutional violations are egregious. See Adamson, 745 F.2d at 545, n. 1. . In Toro, the BIA did not inquire into the officers' subjective state of mind, but rather based its conclusion that the officers had acted in good faith on the grounds that, at the time of the arrest, the INS’s internal policy did not prohibit race-based investigative stops .and the Supreme Court had not yet decided Brignoni-Ponce. Presumably, had the BIA decided that the officers reasonably could not have believed that they were acting in accordance with the Constitution, it would have held that they had acted in bad faith. See Toro, 17 I. & N. Dec. at 343. .United States v. Martinez-Fuerte, 428 U.S. 543, 572, n. 1, 96 S.Ct. 3074, 3089, n. 1, 49 L.Ed.2d 1116 (1976) (Brennan J. dissenting). In Martinez-Fuerte, Justice Brennan reminded us of this important principle stating “[tjhat law in this country should tolerate use of one's ancestiy as probative of possible criminal conduct is repugnant under any circumstances.” Id. (quoted in Watkins, supra n. 6, at 562, n. 345). . The requirement that, in an equal protection claim, the plaintiff prove that the alleged discrimination was intentional, see, e.g., Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1976)," }, { "docid": "23031883", "title": "", "text": "deal here with egre.gious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained. Id. at 1050-51, 104 S.Ct. 3479 (Opinion of O’Connor, J.). In a series of three subsequent cases, we took this dicta from the portion of the opinion that was not binding and adopted an exception of our own. See Orhorhaghe v. INS, 38 F.3d 488 (9th Cir.1994); Gonzalez-Rivera v. INS, 22 F.3d 1441 (9th Cir.1994); Adamson v. Comm’r, 745 F.2d 541 (9th Cir.1984). The exception we adopted is, frankly, rather broad. In our circuit, the exclusionary rule must be applied in a deportation proceeding if the agents violated the Fourth Amendment and “the agents committed the violations deliberately or by conduct a reasonable officer should have known would violate the Constitution.” Orhorhaghe, 38 F.3d at 493. If I am reading our decisions correctly, we have linked the exclusionary rule in civil cases to the qualified immunity standard: any constitutional violation for which an officer would lose immunity from suit is sufficient to trigger the exclusionary rule in a civil deportation proceeding. See Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Regardless of how we arrived at this definition of “egregious,” it is a definition of an exception that is almost certain, over time, to swallow up the rule. Moreover, I suspect it is a definition which might even include the unseemly conduct of the INS agents in Lopez-Mendoza, which the Court held did not warrant applying the exclusionary rule in that petitioner’s immigration proceedings. See Lopez-Mendoza, 468 U.S. at 1036-37, 104 S.Ct. 3479 (describing how INS agents created a chaotic mass exodus of workers from a processing plant and then positioned themselves at the plant exits to observe which fleeing workers could not speak English and which averted their eyes). The Supreme Court determined that the high costs of the exclusionary rule rendered it too costly to apply in immigration proceedings. See Lopez-Mendoza, 468 U.S. at 1040-51, 104 S.Ct. 3479. I need not recite that analysis here." }, { "docid": "23355807", "title": "", "text": "was not presented with the question whether the exclusionary rule applies in cases involving race-based stops. Therefore, Benitez-Mendez is not controlling. . We agree with the Cervantes-Cuevas court that \"[i]n the absence of some proof casting doubt on the probative value of voluntary statements following an illegal detention, evidence that the arrest was unlawful does not affect the admissibility of an undocumented alien's statements.” Cervantes-Cuevas, 797 F.2d at 711 (emphasis added). The Cervantes-Cuevas court, however, was not presented with the issue of whether evidence obtained through egregious vi-Nations is admissible and thus could not have decided that question. Our reading of the holding in Cervantes-Cuevas, moreover, explains why the Cervantes-Cuevas court does not attempt to reconcile its holding with the fact that the Lopez-Mendoza Court cites to Rochin and Toro as examples of egregious violations or to distinguish the holding in Adamson, a case decided one year before Cervantes-Cuevas. TANG, Senior Circuit Judge, concurring: I concur fully in Judge Nelson’s opinion. I write separately to emphasize that we should not allow our courts to be used to sanction racism in any form. The Supreme Court recognized in Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948), that court enforcement of discriminatory covenants was state action subject to the dictates of the Fourteenth Amendment. Allowing the Immigration Service to utilize evidence obtained from racially discriminatory treatment of Hispanics would entail our participation in that discrimination. The exclusionary rule here serves the essential function of preserving judicial integrity. Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 1443, 4 L.Ed.2d 1669 (1960). Where federal agents violate the Fourth Amendment in bad faith by stopping a person solely based on race, judicial integrity would be impaired by allowing the introduction of evidence obtained by racially discriminatory action. “Federal courts cannot countenance deliberate violations of basic constitutional rights. To do so would violate our judicial oath to uphold the Constitution of the United States.” Adamson v. C.I.R., 745 F.2d 541, 546 (9th Cir.1984). CHOY, Circuit Judge, dissenting in part: The majority rejects the INS’ claim that Gonzalez failed" }, { "docid": "22439407", "title": "", "text": "to do with the price of tea in China.\" See supra note 2. . However, Lopez-Mendoza did not impose a requirement that a search or seizure involve physical brutality to warrant suppression. As we stated in Adamson: “Although Rochin involved physical brutality that the Court said 'shocks the conscience,’ we do not believe the Lopez-Mendoza Court’s citation to Rochin was meant to limit 'egregious violations' to those of physical brutality.\" Adamson, 745 F.2d at 545 n. 1. As Gonzalez-Rivera and Arguelles-Vasquez explained, Lopez-Mendoza also supported its exception by citing Matter of Toro, 17 I. & N. Dec. 340 (BIA 1980). In Toro, the respondent argued that INS agents stopped her for questioning solely because of her Hispanic appearance. Although the BIA held that it was not fundamentally unfair to admit the evidence which resulted from the stop, it reached this conclusion because the stop at issue occurred nearly a year before the Supreme Court in Brignoni-Ponce made clear that stops based solely on Hispanic appearance violate the Fourth Amendment. See Toro, 17 I. & N. Dec. at 343-44. The analysis applied in Toro, which is consistent with what this circuit applied in Adamson, see Gonzalez-Rivera, 22 F.3d at 1451; Arguelles-Vasquez, 786 F.2d at 1435 n. 4, would apparently require suppression of the fruits of any stop based solely on Hispanic appearance today, because, nearly twenty years after Brignoni-Ponce, there can be no doubt that such stops violate the Fourth Amendment. See id. at 1435. . Despite some language that is susceptible of misconstruction, Cervantes-Cuevas v. I.N.S., 797 F.2d 707 (9th Cir.1985), is not to the contrary, as we have previously held. See Gonzalez-Rivera, 22 F.3d at 1451-52. In Cervantes-Cuevas, the court did not find the detention illegal and thus did not set forth any holding regarding egregiousness. See id. at 709-10. . We note, as well, that nearly two decades had passed since the Supreme Court's Bumper decision, which established that there can be no voluntary consent following an officer’s assertion of authority to search. .This is especially true in light of the extensive training INS agents receive in Fourth" }, { "docid": "23355803", "title": "", "text": "egregious constitutional violation, we are required to suppress the evidence obtained. Therefore, the petition for review is granted and the matter is remanded to the BIA for further proceedings consistent with this opinion. REVERSED and REMANDED. . See Henry G. Watkins, The Fourth Amendment and the INS: An Update of Locating the Undocumented and a Discussion on Judicial Avoidance of Race-Based Investigative Targeting in Constitutional Analysis, 28 San Diego L.Rev. 499, 561-62 (1991) (discussing the Ninth Circuit's interpretation of Lopez-Mendoza). . The majority opinion in Lopez-Mendoza, written by Justice O'Connor, was joined by four other Justices. Although the part of the opinion where the \"egregiousness” caveat appears was joined by only three other Justices, the four dissenters, who contended that the exclusionary rule applies in the civil and the criminal contexts alike, would have approved any limitation on the majority’s decision. 468 U.S. at 1051-61, 104 S.Ct. at 3489-95 (Brennan, White, Marshall, and Stevens, JJ., dissenting). .In Adamson, the court stated: \"Adamson's contention presents us with the question whether a bad faith violation of an individual's fourth amendment rights requires application of the exclusionary sanction in a civil tax proceeding. We believe that it does.” Adamson, 745 F.2d at 545. In Adamson, however, we declined to apply the exclusionary rule and determined that admitting the evidence would not have implicated the integrity of the courts because, in that case, the evidence had not been obtained through egregious conduct. See id. at 546. . See also Cervantes-Cuevas v. INS, 797 F.2d 707, 710 (9th Cir.1985) (recognizing that Lopez-Mendoza does not preclude application of the exclusionary rule in cases involving egregious constitutional violations or where the probative value of the evidence has been undermined). . We emphasize that neither we nor the Adam-son court hold that only bad faith violations are egregious, but rather that all bad faith constitutional violations are egregious. See Adamson, 745 F.2d at 545, n. 1. . In Toro, the BIA did not inquire into the officers' subjective state of mind, but rather based its conclusion that the officers had acted in good faith on the grounds that," }, { "docid": "23355790", "title": "", "text": "have concluded that the officers in this ease decided to stop Gonzalez because of his Hispanic appearance alone, the stop was not based on reasonable suspicion and thus constituted a Fourth Amendment violation. 3. Egregious Conduct We cannot determine whether the IJ properly excluded the 1-213 Form based solely on our conclusion that the officers’ conduct was unreasonable. In INS v. Lopez-Mendoza, 468 U.S. 1032, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984), the Supreme Court applied the test articulated in United States v. Janis, 428 U.S. 433, 446-448, 96 S.Ct. 3021, 3028-29, 49 L.Ed.2d 1046 (1976), to determine the applicability of the exclusionary rule to civil proceedings, specifically in the context of an immigration hearing. A majority of the Court concluded that, because the deterrent effect of applying the exclusionary rule in civil cases is minimal and its cost is significant, as a general rule, evidence obtained in an unlawful manner will not be excluded from civil proceedings. Lopez-Mendoza, 468 U.S. at 1046, 104 S.Ct. at 3487. The Lopez-Mendoza Court, however, limited its holding to situations that do not involve “egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained.” Id. at 1050-51,104 S.Ct. at 3489. In Adamson v. C.I.R., 745 F.2d 541, 545-46 (9th Cir.1984), this Court interpreted the “egregiousness” caveat in Lopez-Mendoza and established that egregious Fourth Amendment violations warrant the application of the exclusionary rule in civil proceedings. In its discussion of Lopez-Mendoza, the Adamson court first emphasized that the Court based its general holding on its conclusion that the exclusionary rule will have little deterrent effect in the civil context. See Adamson, 745 F.2d at 545 (citing Lopez-Mendoza, 468 U.S. at 1043, 104 U.S. at 3485). The Adamson court then noted that in leaving room for courts to apply the exclusionary rule in situations involving egregious Fourth Amendment violations, Lopez-Mendoza implicitly recognized that the “imperative” of safe-guarding judicial integrity, another core function of the exclusionary rule, would sometimes require application of the rule even in the civil context. As the Adamson court" }, { "docid": "22439408", "title": "", "text": "Dec. at 343-44. The analysis applied in Toro, which is consistent with what this circuit applied in Adamson, see Gonzalez-Rivera, 22 F.3d at 1451; Arguelles-Vasquez, 786 F.2d at 1435 n. 4, would apparently require suppression of the fruits of any stop based solely on Hispanic appearance today, because, nearly twenty years after Brignoni-Ponce, there can be no doubt that such stops violate the Fourth Amendment. See id. at 1435. . Despite some language that is susceptible of misconstruction, Cervantes-Cuevas v. I.N.S., 797 F.2d 707 (9th Cir.1985), is not to the contrary, as we have previously held. See Gonzalez-Rivera, 22 F.3d at 1451-52. In Cervantes-Cuevas, the court did not find the detention illegal and thus did not set forth any holding regarding egregiousness. See id. at 709-10. . We note, as well, that nearly two decades had passed since the Supreme Court's Bumper decision, which established that there can be no voluntary consent following an officer’s assertion of authority to search. .This is especially true in light of the extensive training INS agents receive in Fourth Amendment law. The Court in Lopez-Mendoza specifically relied on the existence of the INS's \"comprehensive scheme for deterring Fourth Amendment violations by its officers” in concluding that the exclusionary rule would not ordinarily apply in deportation proceedings. Lopez-Mendoza, 468 U.S. at 1044-45, 104 S.Ct. at 3486. A reasonable officer who receives such training should be aware of basic principles of fourth Amendment law which have been consistently espoused for over a decade. .Relying on the Adamson court’s holding that no egregious violation occurred in that case because \"the constitutional questions are close enough that a reasonably competent police officer could have believed that the search was legal,\" id. at 546, the INS argues that the constitutional question here is close as well. However, we do not believe that a reasonable officer could believe that a seizure based on Orhorhaghe’s \"Nigerian-sounding” name was constitutional under Brignoni-Ponce. Nor do we believe that a reasonably competent police officer could have believed that Orhorhaghe’s consent, given after Smirnoff’s assertion that he did not need a warrant, could justify the" }, { "docid": "16387376", "title": "", "text": "abuse of discretion standard, the Board’s decision must be reversed if it is arbitrary, irrational, or contrary to law.” Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir.2002) (internal quotation marks omitted). We review the BIA’s conclusions of law such as “whether the BIA applied the correct legal standard in considering the motion to reopen” and the underlying constitutional claims de novo. Fadiga v. Att’y Gen., 488 F.3d 142, 153-54 (3d Cir.2007). III. Discussion We begin our analysis with a discussion of INS v. Lopez-Mendoza, as that case is central to our disposition of these petitions. We then proceed to consider, in turn, Oliva-Ramos’s due process claims, Fourth Amendment claims, and claims predicated on various regulatory violations. A. Lopez-Mendoza In INS v. Lopez-Mendoza, 468 U.S. 1032, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984), the Supreme Court held that the exclusionary rule generally does not apply to removal proceedings. The Court reached that conclusion after balancing the deterrent effect of the exclusionary rule against the social cost of extending its application to civil removal proceedings. However, a plurality of the Justices was careful to add the following qualifier to their discussion of that balancing: Our conclusions concerning the exclusionary rule’s value might change, if there developed good reason to believe that Fourth Amendment violations by INS officers were widespread. Finally, we do not deal here with egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained. At issue here is the exclusion of credible evidence gathered in connection with peaceful arrests by INS officers. We hold that evidence derived from such arrests need not be suppressed in an INS civil deportation hearing. Lopez-Mendoza, 468 U.S. at 1050-51, 104 S.Ct. 3479 (footnote omitted) (internal citations omitted). In Lopez-Mendoza, two citizens of Mexico were ordered deported after separate immigration proceedings. INS agents arrested Lopez-Mendoza at his job without a warrant to search the jobsite or a warrant to arrest anyone there. After the shop owner refused to permit the agents to speak with his employees during work hours, they" }, { "docid": "23031869", "title": "", "text": "alienage in the proceedings before the IJ, we grant their petition for review and reverse the order of removal. In INS v. Lopez-Mendoza, the Supreme Court held that the Fourth Amendment exclusionary rule does not generally apply in deportation proceedings, where the sole issues are identity and alienage. 468 U.S. 1032, 1034, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984). “However, the Court expressly left open the possibility that the exclusionary rule might still apply in cases involving ‘egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained.’ ” Orhorhaghe v. INS, 38 F.3d 488, 492-93 (9th Cir.1994) (quoting Lopez-Mendoza, 468 U.S. at 1050-51, 104 S.Ct. 3479). We have since “t[aken] up the Supreme Court’s suggestion” and “held that, even in administrative proceedings in which ... the exclusionary rule [does not ordinarily apply], administrative tribunals are still required to exclude evidence that was ‘obtained by deliberate violations of the Fourth Amendment or by conduct a reasonable officer should know is in violation of the Constitution.’ ” Id. at 493 (quoting Adamson v. Comm’r, 745 F.2d 541, 545 (9th Cir.1984)). In assessing whether the INS agents’ conduct amounts to an “egregious violation” of the petitioners’ rights, “we must first determine whether the agents violated the Fourth Amendment. If they did, then we must determine whether the agents committed the violations deliberately or by conduct a reasonable officer should have known would violate the Constitution.” Id. (footnote omitted). 1. Fourth Amendment “It is a ‘basic principle of Fourth Amendment law’ that searches and seizures inside a home without a warrant are presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (footnote omitted). The presumption of unconstitutionality that accompanies “the [warrantless] entry into a home to conduct a search or make an arrest” may be overcome only by showing “consent or exigent circumstances.” Steagald v. United States, 451 U.S. 204, 211, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981). The government does not dispute that the INS agents entered the residence of Gastelum" }, { "docid": "23355812", "title": "", "text": "underscored the public policy against the presence and employment of unregistered aliens in the country, a consideration at center stage of the “backdrop” to the Court’s cost-benefit analysis. See Maka v. INS, 904 F.2d 1351, 1358 (9th Cir.1990) (enactment of Immigration Reform and Control Act of 1986, with its severe penalties for hiring undocumented aliens, “radically changed immigration law”). With the backlog of immigration cases and the “staggering dimensions” of the INS’ enforcement task continuing unabated, unignorable advantages remain to keeping deportation proceedings streamlined and unencumbered by the exclusionary rule’s intricate jurisprudence in relatively run-of-the-mill cases such as this. The majority closely analyzes portions of the Lopez-Mendoza dictum to infer that the Court inadvertently drafted in the conjunctive the fundamental fairness and probative value prongs of the egregiousness test. Having decoupled the two prongs, the majority reasonably sets out to expand the category of egregious violations beyond acts of physical brutality. Not clearly proceeding under the rubric of either prong, my colleagues then equate egregiousness with bad faith transgressions of the Fourth Amendment whose fruits would impermissibly compromise judicial integrity upon their entry into the courtroom. To be sure, dictum in Adamson v. Commissioner, 745 F.2d 541, 545-46 (9th Cir.1984), supports this result. Given the distinct institutional setting in Adamson, a tax ease, and our holding that the exclusionary rule was inapplicable in that ease, I submit that this dictum lends little support to the majority’s extension of the exclusionary rule. Of considerably greater precedential value is our later holding in Benitez-Mendez v. INS, 760 F.2d 907, 909 (9th Cir.1985), that under Lopez-Mendoza the exclusionary rule does not bar admission in a deportation hearing of an illegally obtained Form 1-213 stemming from a peaceful arrest, notwithstanding the Border Patrol’s inability to “articulate objective facts providing a reasonable suspicion that [the petitioner] was an alien illegally in this country.” Given the essentially similar facts involved here and in Benitez-Mendez, I believe our holding in that case further precludes the result reached by the majority in part 3 of the opinion. In addition, insofar as judicial integrity persists as a factor to" }, { "docid": "23355800", "title": "", "text": "of the probative value of the evidence obtained. The Lopez-Mendoza Court cited Rochin and Toro as examples of egregious constitutional violations. In Rochin, the evidence obtained had a high probative value — inducing vomiting to recover evidence that the officers believed had been swallowed may have been fundamentally unfair, but it did not undermine the probative value of the narcotics obtained. Rochin, 342 U.S. at 166, 72 S.Ct. at 206. In Toro, the BIA suggested that a stop based on Hispanic appearance alone would constitute an egregious Fourth Amendment violation if the Border Patrol officers acted in bad faith, regardless of the probative value of the evidence obtained. See Toro, 17 I. & N.Dec. at 343 (stating that under the Fifth Amendment, “[t]o be admissible in deportation proceedings, evidence must be probative and its use fundamentally fair”). Under the INS’ recommendation, the Supreme Court’s own examples of egregious conduct would not satisfy its definition of the term. Ninth Circuit law also requires us to reject the INS’ position. In Adamson, the Ninth Circuit held that “[w]hen evidence is obtained by deliberate violations of the Fourth Amendment, or by conduct a reasonable officer should know is in violation of the Constitution, the probative value of that evidence cannot outweigh the need for judicial sanction.” 745 F.2d at 546 (emphasis supplied). Finally, under the INS’ interpretation of Lopez-Mendoza, courts would have to ignore the most obvious and offensive constitutional violations as long as the probative value of the evidence obtained was not undermined. As discussed above and as Judge Tang’s special concurrence emphasizes, see post, however, both the Lopez-Mendoza Court and the Adamson court require that we apply the exclusionary rule when admitting the evidence would implicate judicial integrity. Under the interpretation of Lopez-Mendoza that the INS would have us adopt, the goal of maintaining judicial integrity would not be served. Therefore we must reject the INS’ suggestion that we admit evidence obtained in a fundamentally unfair manner as long as it has a high probative value. The INS’ contention, that Cervantes-Cuevas v. INS, 797 F.2d 707 (9th Cir.1985), requires a different" }, { "docid": "23355808", "title": "", "text": "used to sanction racism in any form. The Supreme Court recognized in Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948), that court enforcement of discriminatory covenants was state action subject to the dictates of the Fourteenth Amendment. Allowing the Immigration Service to utilize evidence obtained from racially discriminatory treatment of Hispanics would entail our participation in that discrimination. The exclusionary rule here serves the essential function of preserving judicial integrity. Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 1443, 4 L.Ed.2d 1669 (1960). Where federal agents violate the Fourth Amendment in bad faith by stopping a person solely based on race, judicial integrity would be impaired by allowing the introduction of evidence obtained by racially discriminatory action. “Federal courts cannot countenance deliberate violations of basic constitutional rights. To do so would violate our judicial oath to uphold the Constitution of the United States.” Adamson v. C.I.R., 745 F.2d 541, 546 (9th Cir.1984). CHOY, Circuit Judge, dissenting in part: The majority rejects the INS’ claim that Gonzalez failed to establish a prima facie violation of the Fourth Amendment under United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 2581, 45 L.Ed.2d 607 (1975), and finds that the BIA attached undue weight to inconclusive suspicional factors cited by the INS as the “articulable facts” supporting the Border Patrol’s stop of Gonzalez’ vehicle. With these portions of the majority’s opinion I concur. However, because I believe this case falls squarely within the rule, rather than any untested exception, stated in INS v. Lopez-Mendoza, 468 U.S. 1032, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984), I do not join part 3 of the majority opinion concluding that the exclusionary rule bars admission of Gonzalez’ inculpatory 1-213 Form at his deportation hearing. On this point I would affirm the BIA’s contrary ruling. In Lopez-Mendoza the Court rejected extension of the exclusionary rule to civil deportation hearings after extensive cost-benefit analysis. Id. at 1041-1050, 104 S.Ct. at 3484-89. In view of the “staggering dimension of the problem that the INS confronts,” id. at 1049, 104 S.Ct. at" }, { "docid": "19755771", "title": "", "text": "did, suppression of the Form 1-213 would not be required. The United States Supreme Court has held that a Fourth Amendment violation does not, by itself, require suppression of evidence in the course of a removal proceeding. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1046, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984) (“Important as it is to protect the Fourth Amendment rights of all persons, there is no convincing indication that application of the exclusionary rule in civil deportation proceedings will contribute materially to that end.”). However, as we have recognized, [t]he [Supreme] Court [in Lopez-Mendoza ] qualified this ruling in two significant ways. First, it stated that its “conclusions concerning the exclusionary rule’s value might change, if there developed good reason to believe that Fourth Amendment violations by [immigration] officers were widespread.” And, second, it explained that its holding did not necessarily pertain to circumstances involving “egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained.” Almeida-Amaral v. Gonzales, 461 F.3d 231, 234 (2d Cir.2006) (internal citations omitted). Before the BIA, Melnitsenko argued only that the alleged Fourth Amendment violation was so egregious as to survive Lopez-Mendoza. Accordingly, any argument that the alleged violation is widespread is unexhausted. See 8 U.S.C. § 1252(d)(1). In Almeida-Amaral, we stated that under the egregiousness prong of Lopez-Mendoza, exclusion of evidence is appropriate “if record evidence established either (a) that an egregious violation that was fundamentally unfair had occurred, or (b) that the violation — regardless of its egregiousness or unfairness — undermined the reliability of the evidence in dispute.” 461 F.3d at 235. As in Almeida-Amaral, “[n]othing before us raises doubts about the veracity of the evidence obtained as a result of the seizure.” Id. Thus, we need only determine whether the search “transgressed] notions of fundamental fairness.” Id. (alternation in original) (internal quotation marks omitted). In making this determination, two principles apply: First, the egregiousness of a constitutional violation cannot be gauged solely on the basis of the validity (or invalidity) of the stop, but must also" }, { "docid": "23355791", "title": "", "text": "situations that do not involve “egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained.” Id. at 1050-51,104 S.Ct. at 3489. In Adamson v. C.I.R., 745 F.2d 541, 545-46 (9th Cir.1984), this Court interpreted the “egregiousness” caveat in Lopez-Mendoza and established that egregious Fourth Amendment violations warrant the application of the exclusionary rule in civil proceedings. In its discussion of Lopez-Mendoza, the Adamson court first emphasized that the Court based its general holding on its conclusion that the exclusionary rule will have little deterrent effect in the civil context. See Adamson, 745 F.2d at 545 (citing Lopez-Mendoza, 468 U.S. at 1043, 104 U.S. at 3485). The Adamson court then noted that in leaving room for courts to apply the exclusionary rule in situations involving egregious Fourth Amendment violations, Lopez-Mendoza implicitly recognized that the “imperative” of safe-guarding judicial integrity, another core function of the exclusionary rule, would sometimes require application of the rule even in the civil context. As the Adamson court explained: Although the Court has often emphasized only the deterrent purpose of the [exclusionary] rule, ... we know from the language in Lopez-Mendoza that deterrence is not the only consideration. [468 U.S. at 1050], 104 S.Ct. at 3490. The Court has never abandoned its pronouncement ... that in addition to deterrence, the exclusionary rule serves the vital function of preserving judicial integrity. In fact, in United States v. Leon, [468 U.S. 897], 104 S.Ct. 3405 [82 L.Ed.2d 677] (1984), the Court noted the vitality of the ‘imperative of judicial integrity.’ ... Federal courts cannot countenance deliberate violations of basic constitutional rights. To do so would violate our judicial oath to uphold the Constitution of the United States.... When evidence is obtained by deliberate violations of the Fourth Amendment, or by conduct a reasonable officer should know is in violation of the Constitution, the proba tive value of that evidence cannot outweigh the need for judicial sanction. Adamson, 745 F.2d at 545-46 (citations omit-' ted). Accordingly, Adamson requires that we decide whether the IJ correctly found" }, { "docid": "23355813", "title": "", "text": "would impermissibly compromise judicial integrity upon their entry into the courtroom. To be sure, dictum in Adamson v. Commissioner, 745 F.2d 541, 545-46 (9th Cir.1984), supports this result. Given the distinct institutional setting in Adamson, a tax ease, and our holding that the exclusionary rule was inapplicable in that ease, I submit that this dictum lends little support to the majority’s extension of the exclusionary rule. Of considerably greater precedential value is our later holding in Benitez-Mendez v. INS, 760 F.2d 907, 909 (9th Cir.1985), that under Lopez-Mendoza the exclusionary rule does not bar admission in a deportation hearing of an illegally obtained Form 1-213 stemming from a peaceful arrest, notwithstanding the Border Patrol’s inability to “articulate objective facts providing a reasonable suspicion that [the petitioner] was an alien illegally in this country.” Given the essentially similar facts involved here and in Benitez-Mendez, I believe our holding in that case further precludes the result reached by the majority in part 3 of the opinion. In addition, insofar as judicial integrity persists as a factor to be weighed in support of the exclusionary rule generally, Justice Marshall’s eloquent dissent in Lopez-Mendoza, 468 U.S. at 1060-61, 104 S.Ct. at 3494-95, gave the Court full opportunity to reflect on this consideration. That Justice O’Connor nonetheless omitted judicial integrity from her solely deterrence-oriented opinion would therefore appear to be less a matter of oversight than a deliberate decision to exclude that consideration from the analysis governing the specific context before us. On the other hand, I concede that Lopez-Mendoza invites creative interpretation of the sort in which my colleagues thoughtfully engage, insofar as the “egregious violation” dictum contains a citation to a case, Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), not fully in harmony with a literal reading of the plurality’s conjunctive, two-pronged caveat.. But I attach greater weight than does the majority to Justice O’Connor’s phrasing of the Court’s holding that “evidence gathered in connection with peaceful arrests ... need not be suppressed in an INS civil deportation hearing.” Lopez-Mendoza, 468 U.S. at 1051, 104 S.Ct. at" }, { "docid": "16387395", "title": "", "text": "Lopez-Mendoza. See Gonzalez-Rivera v. INS, 22 F.3d at 1448 (“We cannot determine whether the IJ properly excluded the 1-213 Form based solely on our conclusion that the officers’ conduct was unreasonable.”); Puc-Ruiz, 629 F.3d at 778 (“Lopez-Mendoza requires more than a violation to justify exclusion.”). The gap between reasonableness and egregious violations has led to our sister courts of appeals employing varying approaches to determining whether a Fourth Amendment violation is egregious. We consider some of those approaches here. The Court of Appeals for the Ninth Circuit has adopted a test resembling the qualified immunity inquiry into whether a constitutional violation was the result of bad faith. Orhorhaghe, 38 F.3d at 493. After establishing that a Fourth Amendment violation has occurred, the Ninth Circuit considers “whether the agents committed the violations deliberately or by conduct a reasonable officer should have known would violate the Constitution.” Id. The test was developed in Adamson v. C.I.R., 745 F.2d 541, 545 (9th Cir.1984), after analyzing the Jams decision, 428 U.S. 433, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976), that the Supreme Court relied on for the weighing of interests analysis in Lopez-Mendoza. The Adamson court determined from “language in Lopez-Mendoza that deterrence is not the only consideration” underlying the exclusionary rule. 745 F.2d at 545. “[I]n addition to deterrence, the exclusionary rule serves the vital function of preserving judicial integrity.” Id. The Ninth Circuit concluded that if “police unreasonably violated the defendant’s fourth amendment rights, the integrity of the courts would be implicated.” Id. at 546. Oliva-Ramos’s petition, however, demonstrates the difficulty courts and agencies face in adopting a test that is perched on the fulcrum of the good faith of the police. Oliva-Ramos has alleged that it was ICE’s policy to detain individuals without reasonable suspicion and to enter homes during pre-dawn raids without consent. He also alleges that the officers who carry out these pre-dawn raids are acting under the guidance of ICE policy. Thus, focusing only on their good faith would permit conduct that may be objectively reasonable based on directives of the Department of Homeland Security, but nevertheless result" }, { "docid": "16387394", "title": "", "text": "cases that, like Rochin, involved highly intrusive searches or seizures.” Lester v. City of Chicago, 830 F.2d 706, 711 (7th Cir.1987). Moreover, the Supreme Court has rejected the use of the Fourteenth Amendment’s “shocks the conscience” standard in Section 1983 claims involving excessive force under the Fourth Amendment. See Graham v. Connor, 490 U.S. 386, 394-95, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). “Because different standards attach to the various rights, identifying the proper constitutional approach is essential.” Gottlieb ex rel. Calabria v. Laurel Highlands School Dish., 272 F.3d 168, 171 (3d Cir.2001). Thus, “the difference between reviewing [the Government’s] actions under the reasonableness standard of the Fourth Amendment or the shocks the conscience standard of the Fourteenth Amendment may be determinative.” Id. The jurisprudence that has developed for “ordinary” Fourth Amendment violations — where the test is “reasonableness” — is critical to determining whether Fourth Amendment violations occurred in the first instance. However, a violation must be more than “unreasonable” for it to satisfy the higher threshold of an “egregious” Fourth Amendment violation under Lopez-Mendoza. See Gonzalez-Rivera v. INS, 22 F.3d at 1448 (“We cannot determine whether the IJ properly excluded the 1-213 Form based solely on our conclusion that the officers’ conduct was unreasonable.”); Puc-Ruiz, 629 F.3d at 778 (“Lopez-Mendoza requires more than a violation to justify exclusion.”). The gap between reasonableness and egregious violations has led to our sister courts of appeals employing varying approaches to determining whether a Fourth Amendment violation is egregious. We consider some of those approaches here. The Court of Appeals for the Ninth Circuit has adopted a test resembling the qualified immunity inquiry into whether a constitutional violation was the result of bad faith. Orhorhaghe, 38 F.3d at 493. After establishing that a Fourth Amendment violation has occurred, the Ninth Circuit considers “whether the agents committed the violations deliberately or by conduct a reasonable officer should have known would violate the Constitution.” Id. The test was developed in Adamson v. C.I.R., 745 F.2d 541, 545 (9th Cir.1984), after analyzing the Jams decision, 428 U.S. 433, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976)," } ]

[ { "docid": "17810791", "title": "", "text": "VA pension was countable as her income and that Tsosie was not eligible for further SSI benefits due to excessive income. This decision became the final decision of the Secretary, affirmed by the district court. II. The sole issue in this case is whether the SSA may properly count the portion of the VA surviving spouse pension Tsosie receives on account of her children as income to her in determining her eligibility for SSI benefits. Tsosie claim's that to attribute the portion of the VA pension paid to her because of her children violates both the letter and the spirit of the Veterans’ Benefits Act, 38 U.S.C. § 101 et seq., defeats the purpose of the Social Security Act, and constitutes a denial of equal protection. The Secretary responds that the language of the Veterans’ Benefits Act and accompanying regulations indicates that money paid to a surviving spouse on account of children is intended to be the spouse’s income, not the children’s. The Secretary notes that 38 U.S.C. § 541 refers to a pension “to the surviving spouse,” not to the child; that although the VA does provide for apportionment or direct payment to the child, it does so only when the child is not in the surviving spouse’s custody, see 38 C.F.R. § 3.450(a)(2), or when there is no surviving spouse, see 38 U.S.C. § 542; and that there is no sanction or penalty requiring a surviving spouse to use any part of the pension on behalf of the spouse’s children. Accordingly, the Secretary asserts that the entire pension is to be treated as Tsosie’s “income” under the Social Security Act, because it is money “actually available” to her. See 20 C.F.R. §§ 416.1102, .1120. Moreover, the Secretary asserts that we must give his interpretation a strong presumption of validity because great deference is to be accorded an administrative agency’s interpretation of its own regulations. We agree with the principle that a court should accord substantial weight to the interpretation given a statute or regulation by the agency charged with administering it. See Miller v. Youakim, 440 U.S. 125," } ]

[ { "docid": "6102514", "title": "", "text": "not a zero-sum mathematical problem in which all forms of public assistance must be used to reduce some family member’s SSI benefits. Rather, the notion of income is an artificial concept that may be understood only by reference to the SSI statute, the SSI regulations, and the cases interpreting them. The Secretary has provided no support for SSR 82-31 other than Whaley v. Schweiker and similar cases. Our holding in Whaley v. Schweiker does not support the Secretary’s new policy. Our review of the SSI regulations indicates that they also fail to support the Secretary’s policy. B. The Supplemental Security Income Regulations In SSR 82-31, the Secretary adopts a blanket policy of counting that portion of VA benefits paid to a veteran for the support of the veteran’s dependent as unearned income to the dependent for the purpose of calculating and reducing the dependent’s SSI benefits. This sweeping approach is inconsistent with the SSI regulations and the detailed approach they take to defining income. See generally 20 C.F. R. §§ 416.1100 to 416.1182 (1988) (“Subpart K—Income”). First, SSR 82-31 creates an unsupported exception to the rule that “[annuities, pensions, and other periodic payments” counted as unearned income usually relate to the claimant’s prior work or service. 20 C.F.R. § 416.1121(a). As we noted earlier, many types of payments are not considered unearned income. Section 416.1121(a) states that periodic payments counted as unearned income are “usually related to prior work or service.” VA benefits paid to a veteran for the support of the veteran’s dependent are related to the veteran’s prior service, but they are not related to the claimant’s (the dependent’s) prior service. Nonetheless, SSR 82-31 counts these periodic payments as unearned income to the claimant (the dependent). The Secretary has given no explanation for this deviation from the general rule. Second, SSR 82-31 flatly contradicts the SSI regulation that describes “[w]hat is not income.” 20 C.F.R. § 416.1103. Section 416.1103(g) explains that when someone other than the SSI claimant uses money to pay the claimant’s bills, that money is not counted as unearned income to the claimant. Rather, the" }, { "docid": "6102519", "title": "", "text": "be deemed the income of a dependent claimant. The SSI regulations governing in-kind income to dependents also contain special rules regarding the calculation of in-kind support when the payments in question are public income-maintenance payments. See 20 C.F.R. § 416.1142(b) (Payments made to one family member will not be counted as in-kind income to another family member when they live in a “public assistance household.”); § 416.1142(a) (“A public assistance household is one in which every member receives some kind of public income-maintenance payments.”). Under these rules, in-kind support is not always counted as unearned income to dependents such as Mrs. Paxton. Thus, both the SSI deeming and in-kind regulations indicate that the portion of VA benefits paid to a veteran for the support of the veteran’s dependent may not always be countable, even indirectly, as unearned income to the veteran’s dependent. SSR 82-31 automatically counts the dependent’s portion of VA benefits as unearned income to the veteran’s dependent. The SSI regulations reveal that the dependent’s portion of VA benefits may never be counted directly as unearned income to the dependent, and may only sometimes indirectly be deemed or counted as in-kind income to the dependent. SSR 82-31 is therefore inconsistent with the SSI regulations. IV CONCLUSION The SSI regulations contain many rules governing the calculation of income. The Secretary may not avoid the regulations by adopting an interpretive ruling, SSR 82-31, which states that an entire class of VA benefits will automatically be counted as unearned income to veterans’ dependents and used to reduce their SSI benefits. The Secretary argues that Whaley v. Schweiker supports SSR 82-31. We disagree. The Secretary has failed to offer any other support for SSR 82-31. We therefore find that SSR 82-31 is an invalid interpretive ruling because it is based on a “plainly erroneous” interpretation of Whaley, Razey, 785 F.2d at 1428, it is “inconsistent with the regulation[s],” id., and it is therefore “not in accordance with law,” Grunfeder, 748 F.2d at 505 (citation omitted). The district court’s decision is REVERSED and the case is REMANDED to the Secretary for payment of SSI" }, { "docid": "1421919", "title": "", "text": "reject claimants’ argument on the merits, we need not decide whether the district court erred by including in the class claimants who had not exhausted administrative remedies. . 20 C.F.R. § 416.1123 was revised after this case was filed. See 55 Fed.Reg. 20,598 (May 18, 1990); 56 Fed.Reg. 3209 (Jan. 29, 1991). The revisions do not change the treatment of garnished amounts as unearned income. 20 C.F.R. § 416.1123(b)(2) (1991) now provides: (b) Amount considered as income. We may include more or less of your income than you actually receive. (2) We also include more than you actually receive if amounts are withheld from unearned income because of a garnishment, or to pay a debt or other legal obligation, or to make any other payment such as payment of your Medicare premiums. . See Healea v. Bowen, 871 F.2d 48 (7th Cir.1988); Szlosek v. Secretary of HHS, 861 F.2d 13 (1st Cir.1988), aff'g, 674 F.Supp. 944 (D.Mass.1987); Robinson v. Bowen, 828 F.2d 71 (2d Cir.1987), aff'g, 650 F.Supp. 1495 (S.D.N.Y.1987); Lyon v. Bowen, 802 F.2d 794 (5th Cir.1986). . In contrast, Congress provided that in determining eligibility for Medicaid, a state may take into account “only such income and resources as are, as determined in accordance with standards prescribed by the Secretary, available to the applicant or recipient....” 42 U.S.C. § 1396a(a)(17)(B). (emphasis added). Before 1980, the SSI regulations also stated that “[i]n determining the amount of unearned income the amount actually available to the individual is considered.” 20 C.F.R. § 416.1120 (1977). This sentence, however, was dropped in 1980. See 45 Fed.Reg. 65,541 (Oct. 3, 1980). Moreover, despite the general definition in 20 C.F.R. 416.1120 (1977), the Secretary's policy manuals had made clear at least since 1976 that garnished amounts were counted as unearned income. . The holding of Whaley has been adopted in 20 C.F.R. § 416.1123(e): Veterans Benefits. If you receive a veterans benefit that includes an amount paid to you because of a dependent, we do not count as your unearned income the amount paid to you because of the dependent. . The court stated: Our" }, { "docid": "6102520", "title": "", "text": "as unearned income to the dependent, and may only sometimes indirectly be deemed or counted as in-kind income to the dependent. SSR 82-31 is therefore inconsistent with the SSI regulations. IV CONCLUSION The SSI regulations contain many rules governing the calculation of income. The Secretary may not avoid the regulations by adopting an interpretive ruling, SSR 82-31, which states that an entire class of VA benefits will automatically be counted as unearned income to veterans’ dependents and used to reduce their SSI benefits. The Secretary argues that Whaley v. Schweiker supports SSR 82-31. We disagree. The Secretary has failed to offer any other support for SSR 82-31. We therefore find that SSR 82-31 is an invalid interpretive ruling because it is based on a “plainly erroneous” interpretation of Whaley, Razey, 785 F.2d at 1428, it is “inconsistent with the regulation[s],” id., and it is therefore “not in accordance with law,” Grunfeder, 748 F.2d at 505 (citation omitted). The district court’s decision is REVERSED and the case is REMANDED to the Secretary for payment of SSI benefits in accordance with this opinion. . As we noted earlier, \"[i]n-kind income is not cash, but is actually food, clothing, or shelter, or something you can use to get one of these.” 20 C.F.R. § 416.1102. Not all in-kind income is counted as unearned income and used to offset a claimant’s SSI eligibility. See, e.g., 20 C.F.R. § 416.1142 (in-kind support not counted as income when received from a fellow member of a public assistance household). . Nothing we said in Whaley is contrary to this analysis. In Whaley, the Secretary argued that the dependent’s portion of the VA pension was income to the veteran because the veteran received the dependent’s portion of the pension as well as the veteran's portion of the pension in one lump-sum check. We rejected that argument by saying that the method of payment did not alter Congress’ intent that the veteran use the money to support his or her dependents. Whaley, 663 F.2d at 874. We therefore concluded that veterans have a moral and legal obligation to use" }, { "docid": "6102509", "title": "", "text": "Serv., 815 F.2d 1275, 1278 (9th Cir.1987) (Secretary must apply proper legal standards). The Secretary’s Social Security Rulings, which are interpretive rulings, “do not have the force and effect of the law or regulations.” Preface, S.S.R. iii (Cum.Ed.1982); see Vista Hill Found., Inc. v. Heckler, 767 F.2d 556, 559-60 (9th Cir.1985) (“the Secretary’s interpretations ... are without force of law”). Nonetheless, administrative interpretations are often given deference. Vista Hill Found., Inc., 767 F.2d at 559-60. We will not, however, defer to administrative interpretations when they are “plainly erroneous or inconsistent with the regulation[s].” Razey v. Heckler, 785 F.2d 1426, 1428 (9th Cir.1986) (citation omitted); Ruangswang v. Immigration and Naturalization Serv., 591 F.2d 39, 43 (9th Cir.1978). Ill DISCUSSION A. Whaley v. Schweiker The Secretary’s sole justification for SSR 82-31 is that it is required by our holding in Whaley v. Schweiker and similar opinions from other courts. We disagree. In Whaley, the Secretary argued that the portion of VA pension benefits paid to a veteran for the support of the veteran’s dependent should be counted as unearned income to the veteran. The Secretary pointed out that 20 C.F.R. § 416.1102 defines income as anything a claimant can use to meet his or her needs for food, clothing, or shelter. The Veterans Administration pays disability pension benefits to veterans in a single, lump-sum check made payable to the veteran. The amount of the check includes money granted for the veteran as well as money granted for the veteran’s dependent. Because the veteran receives the entire amount in a check made payable to him or her, the Secretary concluded that the dependent’s portion, as well as the veteran’s portion, was income to the veteran. This conclusion was based on the assumption that the veteran could, if he or she so chose, use the dependent’s money to meet the veteran’s needs for food, clothing, or shelter. Whaley, 663 F.2d at 874. We rejected the Secretary's argument in Whaley as a “complete vitiation of the purpose supporting both [the Veterans Act and the Social Security Act] — the intent to help families [eligible to" }, { "docid": "6102504", "title": "", "text": "of the Paxton family is in the neighborhood of $1,000 per month. This money must be budgeted to provide for the needs of two disabled adults and one child. Until 1981, the Paxton family was allowed to receive the full amount of Mr. Paxton’s VA pension as well as the full amount of Florence Paxton’s SSI benefits. This is because the Secretary previously regarded Mr. Paxton’s entire VA pension, including the dependents’ portion, as countable unearned income to Mr. Paxton. Mr. Paxton is not eligible for SSI benefits because the amount of his VA pension, even excluding the dependents’ portion, exceeds the SSI minimum income level. As a result, he had no SSI benefits that could be reduced by the dependents’ portion of his VA pension. The Secretary did not count any of Mr. Paxton’s VA pension as unearned income to Florence Paxton. Therefore, none of Mr. Paxton’s VA pension was used to reduce Florence Paxton’s SSI benefits. In 1981, the Secretary changed the Social Security Administration’s (SSA) policy regarding VA benefits paid for dependents. As of November 1981, the Secretary began to regard that portion of VA benefits paid to a veteran for the support of the veteran’s dependent as countable unearned income to the dependent for the purpose of computing the dependent’s SSI benefits. The Secretary issued this policy in the form of an interpretive ruling. Title XVI: SSI Treatment of Veterans Administration Payments to SSI Eligibles/Fiduciaries, 82-31 S.S.R. 291 (Cum.Ed.1982) [hereinafter SSR 82-31], Under SSR 82-31, the dependent’s portion of VA benefits is now automatically used to reduce the dependent’s SSI benefits. The Secretary adopted this new policy in response to court decisions, including our opinion in Whaley v. Schweiker, 663 F.2d 871 (9th Cir.1981). SSR 82-31. In Wha-ley, we held that the dependent’s portion of VA pension benefits may not be counted as income to the veteran for the purpose of computing and reducing the veteran’s SSI benefits. 663 F.2d at 875. The Secretary argues that our holding in Whaley mandates the policy expressed in SSR 82-31. As we shall further explain, we disagree. Despite the" }, { "docid": "6102513", "title": "", "text": "received by a family had to be considered income to someone under the SSI regulations, we might be inclined to agree with the Secretary’s reading of Wha-ley. However, the SSI Regulations reveal that several types of unearned income are not counted for SSI purposes. Section 416.1124 of the SSI regulations, entitled “Unearned income we do not count,” describes thirteen types of unearned income not counted for SSI purposes. 20 C.F.R. § 416.1124(c). Among the payments excluded are (1) assistance based on need, which is wholly funded by a state or one of its political subdivisions, § 416.1124(c)(2); (2) assistance received under the Disaster Relief Act of 1974, § 416.1124(c)(5); and (3) payments granted for providing foster care to an ineligible child, § 416.1124(c)(8). Section 416.1124(b) also incorporates by reference the appendix to subpart K, which lists at least another thirty exclusions. § 416.1124(b); 20 C.F.R. pt. 416, subpt. K app. Thus, the SSI regulations indicate that the Secretary’s logical deduction from our holding in Whaley is flawed. The calculation of income for SSI purposes is not a zero-sum mathematical problem in which all forms of public assistance must be used to reduce some family member’s SSI benefits. Rather, the notion of income is an artificial concept that may be understood only by reference to the SSI statute, the SSI regulations, and the cases interpreting them. The Secretary has provided no support for SSR 82-31 other than Whaley v. Schweiker and similar cases. Our holding in Whaley v. Schweiker does not support the Secretary’s new policy. Our review of the SSI regulations indicates that they also fail to support the Secretary’s policy. B. The Supplemental Security Income Regulations In SSR 82-31, the Secretary adopts a blanket policy of counting that portion of VA benefits paid to a veteran for the support of the veteran’s dependent as unearned income to the dependent for the purpose of calculating and reducing the dependent’s SSI benefits. This sweeping approach is inconsistent with the SSI regulations and the detailed approach they take to defining income. See generally 20 C.F. R. §§ 416.1100 to 416.1182 (1988) (“Subpart" }, { "docid": "1421909", "title": "", "text": "more than you actually receive if amounts are withheld from unearned income because of a garnishment or to make certain payments such as payment of your Medicare premiums. 20 C.F.R. § 416.1123(b)(2) (1990). B Plaintiffs contended, and the district court agreed, that because 42 U.S.C. § 1382a(a)(2)(B) defines “unearned income” to an SSI claimant as including “any payments received” from “an annuity, pension, retirement or disability benefit,” and because garnished amounts are not “received” by the claimant, it violates the plain language of the statute to count these amounts as “income.” After the district court’s decision, however, we followed four other circuits in holding the word “received” is used in subsection (a)(2)(B) as a “mere grammatical link,” and does not require that funds be physically received by claimants to be counted as “income.” Martin v. Sullivan, 932 F.2d 1273, 1275, 1278 (9th Cir.1990) (citation omitted). Martin upheld a regulation providing that funds withheld from a government benefits check to recoup a prior overpayment must be counted as “unearned income” even though these funds were not physically received by the claimant. The converse is also true: amounts physically received by a claimant are not always countable as income. We held in Whaley v. Schweiker, 663 F.2d 871, 875 (9th Cir.1981), that the Secretary could not count as “income” to an SSI claimant a portion of the claimant’s Veteran’s Administration pension specifically earmarked for the claimant’s children, even though these funds were physically received by the claimant. C Plaintiffs argue that garnished amounts may not be counted as “income” because they are not actually available to meet the subsistence needs of SSI claimants. No such requirement is found in the statutory definition of “income,” and Martin rejected the argument that this Circuit’s prior cases had interpreted the statute as creating “a broad ‘actual availability’ principle that is to be applied to every case determining what constitutes ‘income’ for purposes of SSI benefits.” 932 F.2d at 1277. The funds counted as “income” in Martin were withheld to repay a debt to a government agency and were no more available to meet subsistence needs" }, { "docid": "6102508", "title": "", "text": "counted as income to her in computing her SSI benefits; or (2) too much of Mr. Paxton’s VA disability pension was counted as income to her. The district court determined that the Secretary’s interpretation of Whaley v. Schweiker was legally correct. Therefore, the district court granted summary judgment for the Secretary and upheld the Secretary’s findings regarding how much of Mr. Paxton’s VA disability pension should have been used to reduce Florence Pax-ton’s SSI benefits. We reverse. II STANDARD OF REVIEW Our court has “carefully examined [the question] when the receipt of an item of value by an SSI beneficiary constitutes income which is actually available to meet the beneficiary’s basic needs.” Grunfeder v. Heckler, 748 F.2d 503, 505 (9th Cir.1984) (en banc) (Pregerson, J.) (quoting Summy v. Schweiker, 688 F.2d 1233, 1235 (9th Cir. 1982)). We will overturn an agency action if we conclude that it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A) (1982); see Gamer v. Secretary of Health & Human Serv., 815 F.2d 1275, 1278 (9th Cir.1987) (Secretary must apply proper legal standards). The Secretary’s Social Security Rulings, which are interpretive rulings, “do not have the force and effect of the law or regulations.” Preface, S.S.R. iii (Cum.Ed.1982); see Vista Hill Found., Inc. v. Heckler, 767 F.2d 556, 559-60 (9th Cir.1985) (“the Secretary’s interpretations ... are without force of law”). Nonetheless, administrative interpretations are often given deference. Vista Hill Found., Inc., 767 F.2d at 559-60. We will not, however, defer to administrative interpretations when they are “plainly erroneous or inconsistent with the regulation[s].” Razey v. Heckler, 785 F.2d 1426, 1428 (9th Cir.1986) (citation omitted); Ruangswang v. Immigration and Naturalization Serv., 591 F.2d 39, 43 (9th Cir.1978). Ill DISCUSSION A. Whaley v. Schweiker The Secretary’s sole justification for SSR 82-31 is that it is required by our holding in Whaley v. Schweiker and similar opinions from other courts. We disagree. In Whaley, the Secretary argued that the portion of VA pension benefits paid to a veteran for the support of the veteran’s dependent should be counted" }, { "docid": "6102502", "title": "", "text": "person’s income to be [the claimant’s when] it does not matter whether the income of [another] person is actually available to [the claimant].” 20 C.F.R. § 416.1160(a). The process of deeming income from one person to another is detailed and technical. The entire process is set forth at 20 C.F.R. §§ 416.1160 to 416.1169. If a non-SSI benefit is counted as income, the claimant’s SSI benefits will be reduced by the amount of the non-SSI benefit. If a non-SSI payment is not counted as income, the claimant’s SSI benefits will not be reduced by the amount of the non-SSI benefits. When a family is living at subsistence level, the subtraction of any benefit can make a significant difference to its budget and to its ability to survive. The Secretary’s reduction of Florence Paxton’s SSI benefits illustrates the mechanics of the SSI program and the effect on a family of labeling as countable income certain non-SSI benefits. As a family, the Paxton’s incoming resources are meager. At all times relevant to this appeal, Florence Paxton lived with her husband, Mr. Paxton, and their minor son, Hugh. Mr. Paxton is a completely disabled veteran who receives a non-service-connected VA disability pension from the Veterans Administration pursuant to 38 U.S.C. § 521 (1982 & Supp. III 1985). The Veterans Administration sends Mr. Paxton a check, made payable to him, for approximately $650 per month. Approximately $200 of that check is money granted to Mr. Paxton for the support of his two dependents: Florence and Hugh Paxton. See 38 U.S.C. § 521(c) (1982); Whaley v. Schweiker, 663 F.2d 871, 874 (9th Cir.1981). The precise amount of Mr. Paxton’s VA pension changes every year to cover cost-of-living increases. See 38 U.S.C. §§ 521(a), 3112 (1982 & Supp. III 1985). Florence Paxton is also disabled. Before the Secretary reduced Florence Paxton’s SSI benefits, she received SSI payments of roughly $300 per month. The precise amount of her SSI benefits has also changed over time to cover cost-of-living increases. Hugh, the Paxton’s minor son, had no means of support other than his parents. Thus, the total income" }, { "docid": "6102512", "title": "", "text": "that the Secretary’s “proffered statutory interpretation threatens traditional family relationships and undermines the congressional commitment to aid needy veterans and their families.” Id. Accordingly, we held that “the portion of increased pension benefits paid to a veteran for the support of his dependent children does not constitute income to the veteran for the purpose of computing his SSI benefits.” Id. Shortly after Whaley was decided, the Secretary issued SSR 82-31, indicating that VA benefits paid to a veteran for the support of the veteran’s dependent would be counted as income to the dependent for SSI purposes. Pursuant to SSR 82-31, Mr. Paxton’s VA pension benefits were used to reduce Mrs. Paxton’s SSI benefits. The Secretary contends that the policy expressed in SSR 82-31 is mandated by our holding in Whaley. He asserts that the dependent’s portion of a VA pension must be income to the dependent if that money is not considered income to the veteran. The Secretary claims that this is “the only logical inference” that can be drawn from Whaley. If all payments received by a family had to be considered income to someone under the SSI regulations, we might be inclined to agree with the Secretary’s reading of Wha-ley. However, the SSI Regulations reveal that several types of unearned income are not counted for SSI purposes. Section 416.1124 of the SSI regulations, entitled “Unearned income we do not count,” describes thirteen types of unearned income not counted for SSI purposes. 20 C.F.R. § 416.1124(c). Among the payments excluded are (1) assistance based on need, which is wholly funded by a state or one of its political subdivisions, § 416.1124(c)(2); (2) assistance received under the Disaster Relief Act of 1974, § 416.1124(c)(5); and (3) payments granted for providing foster care to an ineligible child, § 416.1124(c)(8). Section 416.1124(b) also incorporates by reference the appendix to subpart K, which lists at least another thirty exclusions. § 416.1124(b); 20 C.F.R. pt. 416, subpt. K app. Thus, the SSI regulations indicate that the Secretary’s logical deduction from our holding in Whaley is flawed. The calculation of income for SSI purposes is" }, { "docid": "11760500", "title": "", "text": "received” language of the statute as imposing a requirement of “actual receipt.” Thus, because the Secretary’s regulation permitted the SSA to count toward a claimant’s income benefits which were only constructively received, the court ruled that 20 C.F.R. § 416.1123(b)(1) was inconsistent with its congressional statutory progenitor. In arriving at its conclusion, the district court departed from the reasoning which has now been adopted by each of the four circuits that have considered this issue. The First, Second, Fifth and Seventh circuits have upheld the validity of the Secretary’s regulation, viewing the use of the term “received” in § 1382a(a)(2)(B) not as obtruding any special conditions for making income determinations but rather as nothing more than a mere “grammatical link between 'payments’ and the descriptive list of benefits which follows.” Lyon v. Bowen, 802 F.2d 794, 798 (5th Cir.1986). Instead of relying on these out-of-circuit cases, the district court relied on two Ninth Circuit decisions that are inapposite to the case at bar. These cases are Whaley v. Schweiker, 663 F.2d 871 (9th Cir.1981) and Summy v. Schweiker, 688 F.2d 1233 (9th Cir.1982). In Whaley, the plaintiff qualified as a benefit recipient under both 42 U.S.C. § 402(a) and 42 U.S.C. § 1382 of the Social Security Act, and also qualified for a pension as a veteran with a non-service connected disability, under the Veteran’s Act (VA), 38 U.S.C. § 521. 663 F.2d at 872-873. The plaintiffs children were also eligible for dependent’s benefits under the Veteran’s Act. Id. The Veteran’s Administration combined plaintiff’s personal benefits totalling $103.93 with his children’s dependent’s benefits, totalling $51.11, into a single check, payable to plaintiff, total-ling $155.04. Id. at 874. In calculating the plaintiff’s SSI benefits, the Secretary included as countable income the $51.11 amount of the dependent children’s benefits included in the check. Whaley, 663 F.2d at 874. The Secretary argued that because the benefits were delivered to plaintiff in one unapportioned check, the entire monetary amount was actually available to the plaintiff because he was free to use the money as he pleased and thus could apply the pension to his" }, { "docid": "6102505", "title": "", "text": "As of November 1981, the Secretary began to regard that portion of VA benefits paid to a veteran for the support of the veteran’s dependent as countable unearned income to the dependent for the purpose of computing the dependent’s SSI benefits. The Secretary issued this policy in the form of an interpretive ruling. Title XVI: SSI Treatment of Veterans Administration Payments to SSI Eligibles/Fiduciaries, 82-31 S.S.R. 291 (Cum.Ed.1982) [hereinafter SSR 82-31], Under SSR 82-31, the dependent’s portion of VA benefits is now automatically used to reduce the dependent’s SSI benefits. The Secretary adopted this new policy in response to court decisions, including our opinion in Whaley v. Schweiker, 663 F.2d 871 (9th Cir.1981). SSR 82-31. In Wha-ley, we held that the dependent’s portion of VA pension benefits may not be counted as income to the veteran for the purpose of computing and reducing the veteran’s SSI benefits. 663 F.2d at 875. The Secretary argues that our holding in Whaley mandates the policy expressed in SSR 82-31. As we shall further explain, we disagree. Despite the Secretary’s new policy, Florence Paxton continued to receive the full amount of her SSI benefits until 1984. In 1984, SSA determined that Florence Paxton was living with a veteran who received a VA disability pension and that the VA pension included benefits for the support of Florence and Hugh Paxton. After an initial determination, a reconsideration, and an Administrative Law Judge (ALJ) hearing, the AU issued a decision that became the final decision of the Secretary after the Appeals Council denied Florence Paxton’s request for review. The AU found that Florence Paxton’s SSI benefits should have been reduced by $128.23 from January through June 1982; by $137.62 from July 1982 through December 1983; and by $142.46 from January through February 1984. The AU stated that “[t]he Claimant’s Supplemental Security Income should have been offset by the dependent increments of Veterans Administration Benefits as those were unearned income to her in the months in question.” After February 1984, SSA reduced Florence Paxton’s SSI benefits by the amount of Mr. Paxton’s VA disability pension that SSA determined" }, { "docid": "7783040", "title": "", "text": "it fundamentally unfair to count the portion of the check earmarked for dependents as Whaley’s unearned income. In response to Whaley, the Secretary promulgated a new interpretation: if the dependent portion could not be counted as unearned income for the veteran, then it should be counted against the dependent. See Title XVI: SSI Treatments of Veterans Administration Payments to SSI Eligibles!Fiducia-ries, 82-31 S.S.R. 291 (Cum.Ed.1982) (previously and hereafter referred to as Social Security ruling 82-31 or just 82-31). So, for instance, if a veteran was receiving veterans’ benefits, a portion of which were earmarked for his wife, who was receiving SSI benefits, then the Social Security Administration would count the earmarked portion as unearned income for the wife, thereby reducing her SSI benefits. Those are exactly the facts the Ninth Circuit faced in Paxton v. Secretary, 856 F.2d 1352 (9th Cir.1988). But the court determined that 82-31, like its predecessor, violated the statutory scheme, ruling that the veterans’ benefits could not be counted as unearned income for the wife under 42 U.S.C. § 1382a(a)(2)(B). This, combined with the court’s previous decision in Whaley, meant that the veterans’ payments, which were going to the veteran or his dependent, could not be assessed against either. The court explained away this oddity: “The calculation of income for SSI purposes is not a zero-sum mathematical problem in which all forms of public assistance must be used to reduce some family member’s SSI benefits.” Paxton, 856 F.2d at 1357. The Social Security Administration disagreed and did not change its interpretation in response to the court’s decision. In various jurisdictions the Secretary has been litigating the issue addressed in Paxton. So far, in addition to the Ninth Circuit, three circuits have determined whether veterans’ benefits earmarked for dependents can be counted as the dependent’s unearned income when calculating SSI. The Fourth Circuit, the Second Circuit, and the Tenth Circuit have all deferred to the Secretary’s interpretation in 82-31, and in doing so, have sharply disagreed with Paxton. Kennedy v. Shalala, 995 F.2d 28 (4th Cir.1993); White v. Shalala, 7 F.3d 296 (2d Cir.1993); Ryder v. Shalala," }, { "docid": "3360559", "title": "", "text": "Secretary’s method of calculation, commenting that it was “without statutory support” and represented “a complete vitiation of the purpose supporting both of these statutes — the intent to help families like Whaley’s to maintain minimally adequate income levels.” Id. at 874. The court concluded that the portion of increased pension benefits paid to a veteran for the support of his dependent children did not constitute income to the veteran for the purpose of computing SSI benefits. Id. at 875. Following Whaley, in Summy, the court addressed the issue of whether sums received from the Veteran’s Administration in reimbursement for certain extraordinary medical expenses were properly counted as unearned income in computing a claimant’s SSI benefits under 42 U.S.C.A. § 1382a(a)(2)(B). The Secretary argued that it was proper to treat the amount of reimbursement as income since VA pensions are income for purposes of computing SSI benefits and the VA pension included the medical expense reimbursement. 688 F.2d at 1234. The court noted that the funds could be treated either as an augmentation of the pension with “funds which when received were spendable as any other dollar of the pension” or instead as a reimbursement “for expenditures previously made over which there was little control and which could not have been used to meet” the plaintiff’s basic needs. Id. at 1235. The circuit, relying on Whaley, concluded that the latter characterization would “best advance ... the purposes of the SSI program,” id., and accordingly, held that the funds could not be included in countable income. Finally, in DHS, the court again addressed the issue of the proper definition of countable income for purposes of calculating federal benefits, this time in the context of the Medicaid statute. In DHS, California appealed a decision of the Secretary rejecting, inter alia, the state’s proposal to treat court-ordered spousal and child support payments as “unavailable” to Medicaid recipients for purposes of benefit determinations. 823 F.2d at 327. The circuit reversed the Secretary. It explained that Whaley compelled the conclusion that “income that a Medicaid recipient uses to pay court ordered child support or alimony cannot" }, { "docid": "6102503", "title": "", "text": "with her husband, Mr. Paxton, and their minor son, Hugh. Mr. Paxton is a completely disabled veteran who receives a non-service-connected VA disability pension from the Veterans Administration pursuant to 38 U.S.C. § 521 (1982 & Supp. III 1985). The Veterans Administration sends Mr. Paxton a check, made payable to him, for approximately $650 per month. Approximately $200 of that check is money granted to Mr. Paxton for the support of his two dependents: Florence and Hugh Paxton. See 38 U.S.C. § 521(c) (1982); Whaley v. Schweiker, 663 F.2d 871, 874 (9th Cir.1981). The precise amount of Mr. Paxton’s VA pension changes every year to cover cost-of-living increases. See 38 U.S.C. §§ 521(a), 3112 (1982 & Supp. III 1985). Florence Paxton is also disabled. Before the Secretary reduced Florence Paxton’s SSI benefits, she received SSI payments of roughly $300 per month. The precise amount of her SSI benefits has also changed over time to cover cost-of-living increases. Hugh, the Paxton’s minor son, had no means of support other than his parents. Thus, the total income of the Paxton family is in the neighborhood of $1,000 per month. This money must be budgeted to provide for the needs of two disabled adults and one child. Until 1981, the Paxton family was allowed to receive the full amount of Mr. Paxton’s VA pension as well as the full amount of Florence Paxton’s SSI benefits. This is because the Secretary previously regarded Mr. Paxton’s entire VA pension, including the dependents’ portion, as countable unearned income to Mr. Paxton. Mr. Paxton is not eligible for SSI benefits because the amount of his VA pension, even excluding the dependents’ portion, exceeds the SSI minimum income level. As a result, he had no SSI benefits that could be reduced by the dependents’ portion of his VA pension. The Secretary did not count any of Mr. Paxton’s VA pension as unearned income to Florence Paxton. Therefore, none of Mr. Paxton’s VA pension was used to reduce Florence Paxton’s SSI benefits. In 1981, the Secretary changed the Social Security Administration’s (SSA) policy regarding VA benefits paid for dependents." }, { "docid": "277456", "title": "", "text": "the change in resources, but she acknowledged that the letters did not reveal that Howard was receiving SSI benefits or that the receipt of the widow’s benefits increased Howard’s resources to an amount in excess of the SSI eligibility limit. The AU found that Howard was not without fault in causing the overpayment because she knew of the obligation to report the change in her resources, but failed to do so in a timely manner. He found that the letters from Golick did not constitute the required notice because they were not submitted for the purpose of giving notice and were not directed to the attention of those responsible to record changes in the income and resources of SSI recipients. He concluded that Howard could not meet her burden by “notification at random or by implication,” (Hearing Transcript at 16), and found that the request for waiver of repayment should be denied. The Secretary adopted the decision of the AU as her final decision, and the Appeals Council denied Howard’s request for review. Howard then commenced this action in the district court. Both parties moved for judgment on the pleadings, and the district court granted the Secretary’s motion on the ground that substantial evidence supported her decision. This appeal followed. II. DISCUSSION Overpayments of SSI benefits are governed by 42 U.S.C. § 1383(b)(1), which provides, in pertinent part, as follows: The Secretary shall make such provision as he finds appropriate in the case of payment of more than the correct amount of benefits with respect to an individual with a view to avoiding penalizing such individual or his eligible spouse who was without fault in connection with the overpayment, if adjustment or recovery on account of such overpayment in such case would defeat the purposes of this subchapter, or be against equity or good conscience____ A regulation promulgated by the Secretary provides that fault on the part of SSA does not relieve the individual claimant from any fault on his own part, and it requires the Secretary to consider “all pertinent circumstances” including the individual’s physical and mental condition, age," }, { "docid": "3360556", "title": "", "text": "by two essential arguments. First, he contends that 20 C.F.R. § 416.1123(b)(2) violates controlling Ninth Circuit precedent which has defined “unearned income” to include only items of value which are actually available to the SSI recipient. Failing that, he argues that the regulation conflicts with the plain language of the statute which limits the amount of unearned income derived from other sources to those “payments received” and the congressional intent of ensuring subsistence income. The Secretary rejects this interpretation of Ninth Circuit law, and, relying on a line of out-of-circuit decisions, argues that Congress did not intend to impose an “actual receipt” requirement on the definition of “unearned income.” I will address each of these arguments in turn. 1. Binding Precedent Although plaintiff’s challenge to the garnishment regulation appears to present a question of first impression, on several occasions the Ninth Circuit has addressed the issue of the types of unearned income that may properly be counted in determining SSI eligibility and calculating benefits under the Social Security Act. See Whaley v. Schweiker, 663 F.2d 871 (9th Cir.1981); Summy v. Schweiker, 688 F.2d 1233 (9th Cir.1982); and Dept. of Health, State of Cal. v. Secretary of HHS, 823 F.2d 323 (9th Cir.1987) (“DHS”). In each of these cases, the circuit has rejected arguments by the Secretary that money which could in some sense be said to be attributable to an applicant, but which was in fact designated for other uses, was “countable” unearned income under the statute. These cases require that the challenged regulation be invalidated. In Whaley, the question presented was whether increased pension benefits paid to a disabled veteran for the support of his minor children under the Veteran’s Act constituted income to the veteran so as to disqualify him from receiving supplemental income benefits under section 1612 of Title XVI of the Social Security Act. 663 F.2d at 873. There, plaintiff qualified as a benefit recipient under both Title II and Title XVI of the Social Security Act, and also qualified for a pension as a veteran with a non-service connected disability, under the Veteran’s Act, 38" }, { "docid": "1421910", "title": "", "text": "physically received by the claimant. The converse is also true: amounts physically received by a claimant are not always countable as income. We held in Whaley v. Schweiker, 663 F.2d 871, 875 (9th Cir.1981), that the Secretary could not count as “income” to an SSI claimant a portion of the claimant’s Veteran’s Administration pension specifically earmarked for the claimant’s children, even though these funds were physically received by the claimant. C Plaintiffs argue that garnished amounts may not be counted as “income” because they are not actually available to meet the subsistence needs of SSI claimants. No such requirement is found in the statutory definition of “income,” and Martin rejected the argument that this Circuit’s prior cases had interpreted the statute as creating “a broad ‘actual availability’ principle that is to be applied to every case determining what constitutes ‘income’ for purposes of SSI benefits.” 932 F.2d at 1277. The funds counted as “income” in Martin were withheld to repay a debt to a government agency and were no more available to meet subsistence needs than the funds in this case. The three prior Ninth Circuit cases plaintiffs rely upon as establishing an “actual availability” requirement (Whaley, 663 F.2d 871, Summy v. Schweiker, 688 F.2d 1233 (9th Cir.1982), and Department of Health Services v. Secretary of HHS, 823 F.2d 323 (9th Cir.1987)) were distinguished in Martin. See id. 932 F.2d at 1276-77. In Whaley, we held the Secretary could not count as “income” to an SSI claimant a portion of the claimant’s Veteran’s Administration pension specifically earmarked for the claimant’s children. The amounts at issue in Whaley were intended by Congress to be used for the support of the claimant’s children, not the claimant. 663 F.2d at 874-75. The claimant would not have received the funds if he had not had custody of the children and responsibility for supporting them. Id. Although the funds were sent to the claimant, he received them, in essence, as a trustee for his children. See Martin, 932 F.2d at 1276 (plaintiff in Whaley “acted solely as a trustee for his children”). In contrast, the" }, { "docid": "7783039", "title": "", "text": "as an annuity, pension, retirement, or disability benefit, including veterans’ compensation and pensions.... ” 42 U.S.C. § 1382a(a)(2)(B). Veterans’ benefits received by a veteran for his benefit are clearly considered unearned income under the statute. But a problem arises when a veteran receives increased veterans’ benefits to support dependents. See 38 U.S.C. § 1521. Originally, the Social Security Administration considered these increased benefits as the veteran’s unearned income for the purpose of calculating SSI. But in Whaley v. Schweiker, 663 F.2d 871 (9th Cir.1981), the Ninth Circuit concluded that this interpretation was contrary to the legislative purpose underlying SSI, which the court broadly construed as “the intent to help families like Whaley’s to maintain minimally adequate income levels.” 663 F.2d at 874. The court was not- persuaded by the facts that “the personal veterans’ benefit ... and the children’s benefits were both delivered to Whaley in one check payable to him” and “Whaley was not legally required to expend the children’s benefits for the purpose for which they were given.” Id. The court simply found it fundamentally unfair to count the portion of the check earmarked for dependents as Whaley’s unearned income. In response to Whaley, the Secretary promulgated a new interpretation: if the dependent portion could not be counted as unearned income for the veteran, then it should be counted against the dependent. See Title XVI: SSI Treatments of Veterans Administration Payments to SSI Eligibles!Fiducia-ries, 82-31 S.S.R. 291 (Cum.Ed.1982) (previously and hereafter referred to as Social Security ruling 82-31 or just 82-31). So, for instance, if a veteran was receiving veterans’ benefits, a portion of which were earmarked for his wife, who was receiving SSI benefits, then the Social Security Administration would count the earmarked portion as unearned income for the wife, thereby reducing her SSI benefits. Those are exactly the facts the Ninth Circuit faced in Paxton v. Secretary, 856 F.2d 1352 (9th Cir.1988). But the court determined that 82-31, like its predecessor, violated the statutory scheme, ruling that the veterans’ benefits could not be counted as unearned income for the wife under 42 U.S.C. § 1382a(a)(2)(B). This," } ]

[ { "docid": "18006700", "title": "", "text": "bond though not necessarily for Fidelity’s attorney’s fees and other expenses of its litigation with the towns, which Fidelity’s complaint against Scotty also claims. But City of Indianapolis v. Chase National Bank, 314 U.S. 63, 73 n. 3, 62 S.Ct. 15,18 n. 3, 86 L.Ed. 47 (1941), holds that a dispute over costs and attorney’s fees is too flimsy a basis for preventing a realignment that will defeat the assertion of diversity jurisdiction. Scotty’s answer denies that it broke its contract with the towns, but this is not a defense against Fidelity, which also denies Scotty’s breach, but against the towns. The potential conflict between Fidelity and Scotty over the latter’s contingent liability under the indemnity agreement was eliminated (except for costs and attorney’s fees) when the answer conceded liability, leaving Scotty with the defense that it had not broken the contract that Fidelity had insured. By staking its all on this defense, Scotty (of Wisconsin) aligned itself with Fidelity (of Maryland) on one side of the lawsuit against the towns on the other, thus putting Wisconsin residents on both sides. Jurisdiction, however, depends on the facts as they exist when the complaint is filed rather than when the answer is filed, which in this case was months later. See, with specific reference to realignment, American Motorists Insurance Co. v. Trane Co., 657 F.2d 146, 151 n. 3 (7th Cir.1981); 3A Moore’s Federal Practice If 19.03[1], at pp. 19-52 to 19-53 (2d ed. 1982). Otherwise a party might take steps to defeat jurisdiction when he saw the case going against him — in a diversity case might, for example, move to his opponent’s state. So if Fidelity and Scotty were adverse parties when the complaint was filed, it would be irrelevant that something happened later to put them on the same side of the lawsuit. For a similar reason it is irrelevant that the towns’ cross-claim against Scotty put it in the same boat with Fidelity. In this respect a cross-claim under Rule 13(g) of the Federal Rules of Civil Procedure is similar to a third-party complaint under Rule 14(a);" } ]

[ { "docid": "22915707", "title": "", "text": "subject matter jurisdiction because the parties were improperly aligned, (2) that the injunction was improper on the merits, (3) that the injunction is barred by the Anti-Injunction Act, and (4) that the district court erroneously concluded that it lacked jurisdiction to consider her motion to dissolve the injunction. HI The district court’s jurisdiction and our jurisdiction on appeal are based on diversity of citizenship. See 28 U.S.C. § 1332 (1994). The plaintiff PREA is a California corporation with its principal place of business in California, and the defendants are each individual or corporate citizens of Pennsylvania. McKenna urges that Sosso, Croushore, and PPR should be realigned according to their interests in this lawsuit as plaintiffs with PREA. The realignment of any defendant as a plaintiff would place Pennsylvania citizens on both sides of this case, and divest the federal courts of jurisdiction. A The issue of alignment for purposes of diversity jurisdiction requires a court to “look beyond the pleadings” to the actual interests of the parties respecting the subject matter of the lawsuit. City of Indianapolis v. Chase Nat’l Bank, 314 U.S. 63, 69, 62 S.Ct. 15, 86 L.Ed. 47 (1941) (quotations omitted). This inquiry involves factual determinations of the type ordinarily left to the district court and reviewed for clear error. See United States ex rel. Aflatooni v. Kitsap Physicians Servs., 163 F.3d 616, 521 (9th Cir. 1999) (as amended). McKenna did not challenge jurisdiction in the district court before taking this appeal, and the district court has entered no findings of fact concerning the actual alignment of interests among the parties. Nevertheless, we are obliged to confront the question of jurisdiction whenever it is apparent that proper alignment of the parties might destroy complete diversity of citizenship. See Continental Airlines, Inc. v. Goodyear Tire & Rubber Co., 819 F.2d 1519, 1522-23 (9th Cir.1987). B We must align for jurisdictional purposes those parties whose interests coincide respecting the “primary matter in dispute.” Continental Airlines, 819 F.2d at 1523; see Chase, 314 U.S. at 69, 62 S.Ct. 15; Dolch v. United Cal. Bank, 702 F.2d 178, 181 (9th Cir.1983)." }, { "docid": "8170991", "title": "", "text": "jurisdiction in cases of sufficient value between “citizens of different States.” Id. The court equates the citizenship of a natural person with his domicile, Von Dunser v. Aronoff, 915 F.2d 1071, 1072 (6th Cir.1990), but deems a corporation to have the citizenship of its state of incorporation and its principal place of business, 28 U.S.C. § 1332(c)(1). A partnership, as an unincorporated association, has the citizen ship of each of its members. Certain Interested Underwriters at Lloyd’s v. Layne, 26 F.3d 39 (6th Cir.1994). This case began when Safeco, a Washington corporation, sought a declaratory judgment against Eatherly and the City-both citizens of Tennessee. Thus, on the face of the pleadings there was diversity between all of the plaintiffs and all of the defendants, i.e., complete diversity. See Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806). A plaintiffs alignment of the parties, however, is not determinative. In considering whether there is complete diversity, a federal court must look beyond the nominal designation of the parties in the pleadings and should realign the parties according to their real interests in the dispute. Dawson v. Columbia Ave. Sav. Fund, 197 U.S. 178, 180, 25 S.Ct. 420, 420-21, 49 L.Ed. 713 (1905). Realignment, then, may create or destroy diversity jurisdiction. See, e.g., Indianapolis v. Chase Nat’l Bank, 314 U.S. 63, 69, 62 S.Ct. 15, 16-17, 86 L.Ed. 47 (1941); Merchants’ Cotton-Press & Storage Co. v. Insurance Co. of N. Am., 151 U.S. 368, 385, 14 S.Ct. 367, 372-73, 38 L.Ed. 195 (1894). It is our duty, as it is that of the lower federal courts, to “look beyond the pleadings and arrange the parties according to their sides in the dispute.” ... Litigation is the pursuit of practical ends, not a game of chess. Whether the necessary “collision of interests” ... exists, is therefore not to be determined by mechanical rules. It must be ascertained from the “principal purpose of the suit” ... and the “primary and controlling matter in dispute.” Chase Nat’l Bank, 314 U.S. at 69, 62 S.Ct. at 17. The district court granted Eatherly’s motion to" }, { "docid": "21367723", "title": "", "text": "1281 (11 th Cir.2006). Yet, our inquiry is still not complete. “Diversity jurisdiction cannot be conferred upon the federal courts by the parties’ own determination of who are plaintiffs and who are defendants.” City of Indianapolis v. Chase Nat’l Bank, 314 U.S. 63, 69, 62 S.Ct. 15, 86 L.Ed. 47 (1941). While it is a long-standing principle that federal jurisdiction must be based on the facts and pleadings as they existed at the time of removal, see, e.g., St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938); Freeport-McMoRan, Inc. v. KN Energy, Inc., 498 U.S. 426, 428, 111 S.Ct. 858, 112 L.Ed.2d 951 (1991), it is the federal courts’ duty to “look beyond the pleadings, and arrange the parties according to their sides in the dispute.” Chase Nat’l Bank, 314 U.S. at 69, 62 S.Ct. 15. This Court must “work out the relation of each party to the suit according to the nature of his real interest, and then decide the question of jurisdiction.” Peters v. Standard Oil Co., 174 F.2d 162, 163 (5th Cir.1949) (emphasis added). “Collision of interest ... is not determined by mechanical rules. It must be ascertained from the principal purpose of the suit, and the primary and controlling matter in dispute.” Chase Nat’l Bank, 314 U.S. at 69, 62 S.Ct. 15 (internal quotes and citations omitted). Furthermore, the “[f]acts forming the basis of realignment must exist at the time of filing the original suit.” Texas Pac. Coal & Oil Co. v. Mayfield, 152 F.2d 956, 957 (5th Cir.1946). It is clear to this Court that Thomas has actual interests that are closely aligned with Mr. Earnest’s efforts to obtain indemnity from Thomas’ claims; therefore, realignment is necessary. Once realigned, complete diversity of citizenship exists. V. Conclusion. For the reasons herein stated, defendants Watson and Hutto are dismissed from this action as fraudulently joined. Defendant Thomas is realigned as a plaintiff with respect to the declaratory judg ment portion of Earnest’s complaint, and to the extent Thomas was named as a defendant to the tort claim" }, { "docid": "11456739", "title": "", "text": "1441(b), the “forum defendant rule,” prevented removal to federal court. Kennelly nonetheless sought to remove the case in a motion filed on April 23, 2007. To cure the removal problems presented by the forum defendant rule, Kennelly asked the district court to realign RCG as a petitioner (instead of a respondent) “according to their actual interests in the litigation.” Kennelly also claimed that Wolfs declaratory judgment action against RCG was premature because, if the arbitration award were vacated, “there would be no need for a court to determine whether KJW and Wolf are legally obligated to indemnify RCG.” Kennelly also expressed his concern that if the state case were not removed, there was a possibility of inconsistent decisions. On May 21, 2007, Wolf moved to remand. Wolf argued that because RCG was a respondent, Kennelly’s removal violated § 1441(b)’s forum defendant rule and that RCG had not consented to removal. Wolf also opposed realignment as the petitioner in the Illinois state court case. Wolfs motion opposing removal cited American Motorists Ins. Co. v. Trane Co., 657 F.2d 146, 151 (7th Cir.1981), which holds that realignment is only proper “where there is no actual, substantial conflict between the parties that would justify placing them on opposite sides of the lawsuit.” Wolf emphasized in his motion that there was a live controversy with RCG over the issue of indemnification. Kennelly opposed the motion to remand the case back to the Illinois state court. At a status conference on June 25, 2007, the district court appeared persuaded by Kennelly’s opposition. The district court stated that “it does seem to me that the real dispute here is between the party that prevailed at the arbitration and the parties that were found by the arbitrator to have violated ... Mr. Kennelly’s rights. So with that understanding, I do think removal was proper.” The district court said that it was “concerned” about Wolfs argument regarding a substantial dispute about indemnification but suggested that she saw another problem, that Kennelly had not raised in his motion to remove, regarding whether “complete justice can be done in the" }, { "docid": "11456753", "title": "", "text": "the indemnification dispute was “actual” and “substantial” and the merits of that ruling are not on appeal. Moreover, we stated in American Motorists that “the facts which form the basis for realignment must have been in existence at the time the action was commenced.” Am. Motorists, 657 F.2d at 149. Thus, the decision to dismiss the declaratory action at a later stage would not justify the attempt to remove the case at the start of the litigation. Kennelly also argues that his desired realignment was not foreclosed by law because, even assuming that the dispute between Wolf and RCG for indemnification was concrete, it was insubstantial in relation to their “ultimate interest” in the outcome of the litigation over the arbitration award. In support of this position Kennelly cites Indianapolis v. Chase Nat’l Bank, 314 U.S. 63, 62 S.Ct. 15, 86 L.Ed. 47 (1941), a case in which the Supreme Court held that parties should be aligned according to their “ultimate interests.” In that case, the Supreme Court realigned a defendant as a plaintiff despite a million-dollar controversy between them because the million-dollar dispute was “frivolous” and the parties were “colloquially speaking, partners in the litigation.” Id. at 74, 62 S.Ct. 15. Kennelly ignores, however, that American Motorists interpreted Chase National Bank and foreclosed his desired realignment. Specifically, American Motorists held that “a mere mutuality of interest in escaping liability is not of itself sufficient to justify realignment.” American Motorists, 657 F.2d at 151 (citations omitted). Realignment is only proper where there is no actual, substantial conflict between the parties that would justify placing them on opposite sides of the suit. Id. Kennelly attempts to distinguish the case but his arguments essentially amount to arguments against the American Motorists test. As the district court recognized, Kennelly ultimately wants this court to abandon American Motorists and join the majority of circuits in adopting the “primary purpose” test, which would have allowed him to realign RCG as a petitioner. American Motorists is a minority view among the circuits. See, e.g., 13B Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal" }, { "docid": "11456750", "title": "", "text": "We reasoned that just as the qualified immunity doctrine attempts to protect zealous law enforcement, the removal statute encourages litigants to make liberal use of federal courts, so long as the right to remove is not abused. Id. at 793. We then announced the “general rule” to govern such cases: if, at the time the defendant filed his notice in federal court, clearly established law demonstrated that he had no basis for removal, then a district court should award a plaintiff his attorneys’ fees. By contrast, if clearly established law did not foreclose a defendant’s basis for removal, then a district court should not award attorneys’ fees. Id. at 793. Wolf argues that this court’s decision in American Motorists foreclosed Kennedy's attempts at removal. In American Motorists we held that “[r]ealignment is proper when the court finds that no actual, substantial controversy exists between the parties on one side of the dispute and their named opponents ...” Am. Motorists, 657 F.2d at 149 (citing Indianapolis v. Chase Nat’l Bank, 314 U.S. 63, 62 S.Ct. 15, 86 L.Ed. 47 (1941)). We stated that in determining whether realignment is proper, courts must focus on “the points of substantial antagonism, not agreement.” Id. at 151. This held true even if the parties shared an interest in avoiding liability in the suit altogether. “[A] mere mutuality of interest in escaping liability” does not mandate realignment. Id. We ultimately concluded that realignment was not proper in that case because while the plaintiff insurance company and a defendant insurance company both had an interest in escaping liability for any claims, the dispute over their respective duties to defend was a real and substantial controversy that justified placing the parties on opposite sides of the dispute. Id. We have subsequently held on the basis of American Motorists that it is “undoubtedly improper” to realign parties for the purpose of preserving jurisdiction if “an actual, substantial controversy exists between a party on one side of the dispute and its named opponent.” Krueger v. Cartwright, 996 F.2d 928, 932 n. 5 (7th Cir.1993) (citing Am. Motorists, 657 F.2d at" }, { "docid": "13586787", "title": "", "text": "party on one side of the dispute and its named opponent. See American Motorists Insurance Company v. Trane Company, 657 F.2d 146, 149 (7th Cir.1981). It would make no sense to realign American States as a defendant in the action because the insurer's interests are plainly adverse to those of James Cartwright. In its \"Brief in Support of Motion to Join as Party Plaintiff,” the company states: If American States' lien is invalid, then it has a separate cause of action against Defendant, James Cartwright, for the economic damages it has paid already on behalf of Ms. Krueger arising out of said motor vehicle accident. In either event, whether the lien is valid or whether American States has a claim against Cartwright directly for the amounts it has expended for no-fault benefits, American States should be added as an intervening party Plaintiff to this litigation in accordance with the terms of FRCP 19. .28 U.S.C. § 1367 provides a statutory basis for pendent claim, pendent party, and ancillary jurisdiction — all renamed \"supplemental jurisdiction.\" Section (b) of the statute states: In any civil action of which the district courts have original jurisdiction founded solely on section 1332 of this title, the district courts shall not have supplemental jurisdiction under subsection (a) [granting, in cases of which the district courts have original jurisdiction, supplemental jurisdiction over all other claims that are so related to claims within such original jurisdiction that they form part of the same case or controversy under Article III of the Constitution] over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules, when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332. (emphasis added). We point out that under this provision, supplemental jurisdiction over American Slates' claims would not exist even had the company, taken the more conventional route of" }, { "docid": "11721626", "title": "", "text": "courts applying the Indianapolis standard have focused on different phrases of the above-quoted passage, and as a result different tests have evolved. Grace urges us to look to the single, primary purpose of Maryland’s lawsuit. It argues that a lawsuit must be distilled to its single-issue essence for realignment purposes, and the parties must then “be aligned in accordance with the primary dispute in the controversy, even where a different, legitimate dispute between the parties supports the original alignment.” United States Fidelity & Guar. Co. v. Thomas Solvent Co., 955 F.2d 1085, 1089 (6th Cir.1992); see also Employers Ins. of Wausau v. Crown Cork & Seal Co., 942 F.2d 862, 864 (3d Cir.1991); Continental Airlines, Inc. v. Goodyear Tire & Rubber Co., 819 F.2d 1519, 1523 & n. 2 (9th Cir.1987). The insurance companies advocate a broader “collision of interests” test. Under this test courts require the existence of an actual, substantial controversy, or a collision of interests, see Indianapolis, 314 U.S. at 69, 62 S.Ct. at 68, but the conflict may in some eases concern an issue other than the so-called primary issue in dispute. See generally U.S.I. Properties Corp. v. M.D. Constr. Co., 860 F.2d 1, 4-5 (1st Cir.1988), cert. denied, 490 U.S. 1065, 109 S.Ct. 2064, 104 L.Ed.2d 629 (1989); Zum Indus., Inc. v. Acton Constr. Co., 847 F.2d 234, 237-38 (5th Cir.1988); American Motorists Ins. Co. v. Trane Co., 657 F.2d 146, 151 (7th Cir.1981); Farmers Alliance Mut. Ins. Co. v. Jones, 570 F.2d 1384, 1387 (10th Cir.), cert. denied, 439 U.S. 826, 99 S.Ct. 97, 58 L.Ed.2d 119 (1978); Universal Underwriters Ins. Co. v. Wagner, 367 F.2d 866, 870-71 (8th Cir.1966). This approach is more flexible because it permits courts deciding whether diversity exists to consider the multiple interests and issues involved in the litigation. We adopt the collision of interests test to resolve the realignment question. Although not having had occasion to adopt an explicit standard, we have stated that the Indianapolis rule requires realignment of parties “according to their real interests so as to produce an actual collision of interests.” Lewis v. Odell," }, { "docid": "13633881", "title": "", "text": "Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” 28 U.S.C. § 1441(a). The parties argue that the joining as defendants of Steinfeld and CCC, both citizens of New York as is plaintiff, does not defeat diversity jurisdiction under either of two rationales: first, that the New York defendants should be realigned as plaintiffs with Irving; alternatively, that Steinfeld and CCC should be viewed as nominal parties and therefore disregarded in determining the existence of complete diversity. The seminal realignment case is Indianapolis v. Chase Nat’l Bank, 314 U.S. 63, 62 S.Ct. 15, 86 L.Ed. 47 (1941). There, the Supreme Court restated the principles governing diversity jurisdiction. Directing attention to the “realities of the record,” id. at 69, 62 S.Ct. 15, the Court reminded that: “[T]here must exist an ‘actual,’ ‘substantial’ controversy between citizens of different states . . . . It is [the duty] of the lower federal courts to Took beyond the pleadings and arrange the parties according to their sides in the dispute.’ Litigation is the pursuit of practical ends, not a game of chess. Whether the necessary ‘collision of interests’ exists . must be ascertained from the ‘principal purpose of the suit’ and the ‘primary and controlling matter in dispute.’ ” Id. (citations omitted). Applying those principles to the case before it, the Indianapolis Court was able to conclude “plainly,” that plaintiff and one of the named defendants were “partners in litigation.” Id. at 74, 62 S.Ct. 15. Because these “partners” were co-citizens of the same state, the Court, harkening to the constitutional and statutory limits on federal judicial power, felt itself compelled to pierce the “illusive artifices” of the pleadings, realign the parties and dismiss for want of diversity jurisdiction. I am unpersuaded that, under Indianapolis, realignment to create diversity is appropriate here. The “primary purpose” of Irving’s suit is to" }, { "docid": "11456751", "title": "", "text": "86 L.Ed. 47 (1941)). We stated that in determining whether realignment is proper, courts must focus on “the points of substantial antagonism, not agreement.” Id. at 151. This held true even if the parties shared an interest in avoiding liability in the suit altogether. “[A] mere mutuality of interest in escaping liability” does not mandate realignment. Id. We ultimately concluded that realignment was not proper in that case because while the plaintiff insurance company and a defendant insurance company both had an interest in escaping liability for any claims, the dispute over their respective duties to defend was a real and substantial controversy that justified placing the parties on opposite sides of the dispute. Id. We have subsequently held on the basis of American Motorists that it is “undoubtedly improper” to realign parties for the purpose of preserving jurisdiction if “an actual, substantial controversy exists between a party on one side of the dispute and its named opponent.” Krueger v. Cartwright, 996 F.2d 928, 932 n. 5 (7th Cir.1993) (citing Am. Motorists, 657 F.2d at 149). At the time that Kennelly sought to remove KJW’s suit to federal court, then, this circuit had a long-standing precedent that realignment is not proper where an “actual, substantial” controversy exists between the parties, even if the parties share an interest in avoiding liability in the suit. Kennelly counters by alleging, as he did throughout the district court proceedings, that the indemnification dispute was a “sham” fabricated by Wolf and RCG in order to keep the case out of federal court. He alleges, among other factors, that the dispute is dubious because the parties have never produced a written indemnification agreement, RCG has never demanded payment, and the parties have been, in Kennelly’s view, less than vigorous in pursuing the indemnification issue. It is true that the two parties ultimately agreed to dismiss the declaratory action, and while this may have given Kennelly some basis to believe, at the time he removed the ease, that the indemnification dispute was not a “real” dispute, the district court’s opinion on the removal issue ultimately found that" }, { "docid": "11721627", "title": "", "text": "concern an issue other than the so-called primary issue in dispute. See generally U.S.I. Properties Corp. v. M.D. Constr. Co., 860 F.2d 1, 4-5 (1st Cir.1988), cert. denied, 490 U.S. 1065, 109 S.Ct. 2064, 104 L.Ed.2d 629 (1989); Zum Indus., Inc. v. Acton Constr. Co., 847 F.2d 234, 237-38 (5th Cir.1988); American Motorists Ins. Co. v. Trane Co., 657 F.2d 146, 151 (7th Cir.1981); Farmers Alliance Mut. Ins. Co. v. Jones, 570 F.2d 1384, 1387 (10th Cir.), cert. denied, 439 U.S. 826, 99 S.Ct. 97, 58 L.Ed.2d 119 (1978); Universal Underwriters Ins. Co. v. Wagner, 367 F.2d 866, 870-71 (8th Cir.1966). This approach is more flexible because it permits courts deciding whether diversity exists to consider the multiple interests and issues involved in the litigation. We adopt the collision of interests test to resolve the realignment question. Although not having had occasion to adopt an explicit standard, we have stated that the Indianapolis rule requires realignment of parties “according to their real interests so as to produce an actual collision of interests.” Lewis v. Odell, 503 F.2d 445, 447 (2d Cir.1974). Further, several district courts within this Circuit have employed the collision of interests approach when realigning parties. See Syms, Inc. v. IBI Sec. Serv., Inc., 586 F.Supp. 53, 56 (S.D.N.Y.1984); American Mut. Liab. Ins. Co. v. Flintkote Co., 565 F.Supp. 843, 846-47 (S.D.N.Y.1983); Irving Trust Co. v. Century Export & Import, S.A., 464 F.Supp. 1232, 1241 (S.D.N.Y.1979). The primary purpose approach is not actually dictated by Indianapolis because though the facts of that case involved only a single controversy among the litigants involving the enforceability of a 99-year lease, the Supreme Court did not intend that all cases be forced into a single-issue posture. See Zurn Indus., 847 F.2d at 237. Indianapolis deliberately considered additional, subordinate controversies raised by the parties opposed to realignment and found that they were in fact non-issues. See 314 U.S. at 73 n. 3, 62 S.Ct. at 18-19 n. 3. Such discussion would have been wholly irrelevant were the realignment inquiry to concern only the primary purpose of the litigation. See Travelers Indent. Co." }, { "docid": "11456752", "title": "", "text": "149). At the time that Kennelly sought to remove KJW’s suit to federal court, then, this circuit had a long-standing precedent that realignment is not proper where an “actual, substantial” controversy exists between the parties, even if the parties share an interest in avoiding liability in the suit. Kennelly counters by alleging, as he did throughout the district court proceedings, that the indemnification dispute was a “sham” fabricated by Wolf and RCG in order to keep the case out of federal court. He alleges, among other factors, that the dispute is dubious because the parties have never produced a written indemnification agreement, RCG has never demanded payment, and the parties have been, in Kennelly’s view, less than vigorous in pursuing the indemnification issue. It is true that the two parties ultimately agreed to dismiss the declaratory action, and while this may have given Kennelly some basis to believe, at the time he removed the ease, that the indemnification dispute was not a “real” dispute, the district court’s opinion on the removal issue ultimately found that the indemnification dispute was “actual” and “substantial” and the merits of that ruling are not on appeal. Moreover, we stated in American Motorists that “the facts which form the basis for realignment must have been in existence at the time the action was commenced.” Am. Motorists, 657 F.2d at 149. Thus, the decision to dismiss the declaratory action at a later stage would not justify the attempt to remove the case at the start of the litigation. Kennelly also argues that his desired realignment was not foreclosed by law because, even assuming that the dispute between Wolf and RCG for indemnification was concrete, it was insubstantial in relation to their “ultimate interest” in the outcome of the litigation over the arbitration award. In support of this position Kennelly cites Indianapolis v. Chase Nat’l Bank, 314 U.S. 63, 62 S.Ct. 15, 86 L.Ed. 47 (1941), a case in which the Supreme Court held that parties should be aligned according to their “ultimate interests.” In that case, the Supreme Court realigned a defendant as a plaintiff despite" }, { "docid": "11456754", "title": "", "text": "a million-dollar controversy between them because the million-dollar dispute was “frivolous” and the parties were “colloquially speaking, partners in the litigation.” Id. at 74, 62 S.Ct. 15. Kennelly ignores, however, that American Motorists interpreted Chase National Bank and foreclosed his desired realignment. Specifically, American Motorists held that “a mere mutuality of interest in escaping liability is not of itself sufficient to justify realignment.” American Motorists, 657 F.2d at 151 (citations omitted). Realignment is only proper where there is no actual, substantial conflict between the parties that would justify placing them on opposite sides of the suit. Id. Kennelly attempts to distinguish the case but his arguments essentially amount to arguments against the American Motorists test. As the district court recognized, Kennelly ultimately wants this court to abandon American Motorists and join the majority of circuits in adopting the “primary purpose” test, which would have allowed him to realign RCG as a petitioner. American Motorists is a minority view among the circuits. See, e.g., 13B Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice & Procedure § 3607 (2007 Supp. at 417-18) (describing circuit split and noting that this circuit’s decision in American Motorists places it in the minority of circuits which have adopted the “actual and substantial conflict” test). Whatever the merits of Kennelly’s desire for this circuit to revisit the realignment test, however, during this attorneys’ fee petition we are only concerned with the state of the law at the time Kennelly sought removal, when American Motorists governed his realignment argument. Kennelly’s final argument that removal was not foreclosed by clearly established law is that when he removed the case he labored under the erroneous impression that RCG was only a resident of Illinois for purposes of jurisdiction. In other words, he argues that but-for RCG’s mistake regarding its citizenship he would not have removed the case at all. Kennelly’s representation in this regard is plausible, because if he had known RCG was also a citizen of Indiana he would not have pursued removal under the suggested realignment. But the argument is irrelevant if, taking the" }, { "docid": "11456749", "title": "", "text": "pointed out that “[i]f fee shifting were automatic, defendants might choose to exercise this right only in cases where the right to remove was obvious.” Martin, 546 U.S. at 140, 126 S.Ct. 704. The Court noted that Congress would not have conferred a right to remove and then discouraged its exercise in all but the obvious cases. Id. The Supreme Court did not define what sorts of beliefs are “objectively reasonable” in its Martin opinion because the parties in that case agreed that the defendant’s basis for removal was reasonable. In Lott v. Pfizer, Inc., 492 F.3d 789 (7th Cir.2007), we decided that “qualified immunity jurisprudence provides appropriate guidance for determining whether a defendant had an objectively reasonable basis for removal.” Id. at 793. As we discussed in Lott, the qualified immunity doctrine assumes that state officials are aware of existing case law and holds officials liable only if they violate clearly established and particularized rights. See id. at 792 (citing Brosseau v. Haugen, 543 U.S. 194, 199, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004)). We reasoned that just as the qualified immunity doctrine attempts to protect zealous law enforcement, the removal statute encourages litigants to make liberal use of federal courts, so long as the right to remove is not abused. Id. at 793. We then announced the “general rule” to govern such cases: if, at the time the defendant filed his notice in federal court, clearly established law demonstrated that he had no basis for removal, then a district court should award a plaintiff his attorneys’ fees. By contrast, if clearly established law did not foreclose a defendant’s basis for removal, then a district court should not award attorneys’ fees. Id. at 793. Wolf argues that this court’s decision in American Motorists foreclosed Kennedy's attempts at removal. In American Motorists we held that “[r]ealignment is proper when the court finds that no actual, substantial controversy exists between the parties on one side of the dispute and their named opponents ...” Am. Motorists, 657 F.2d at 149 (citing Indianapolis v. Chase Nat’l Bank, 314 U.S. 63, 62 S.Ct. 15," }, { "docid": "16958616", "title": "", "text": "2009). ARCO is (or was) a defendant in all but two of the lead paint cases filed after Thomas. Godoy; Hardison v. E.I. DuPont De Nemours & Co. et al., 06-CV-606 (Milwaukee County Circuit Court). B. As noted, the instant lawsuit was originally filed in Milwaukee County Circuit Court. The original complaint named the State of Wisconsin, Department of Health and Family Services as a defendant. On March 22, 2007, the circuit court endorsed a stipulation that the Milwaukee County Department of Health and Human Services should be substituted for the State of Wisconsin as the proper party pursuant to Wis. Stat. § 803.03(2)(a)(any “public assistance recipient ... asserting a claim against a 3rd party for which the public assistance provider has a right of subrogation or assignment ... shall join the provider as a party to the claim”). Defendants removed in April 2007, but Gibson moved for remand. On July 11, 2007, this Court held that the substitution of Milwaukee County for the State of Wisconsin created complete diversity because Milwaukee County is a citizen of Wisconsin and should be aligned as a plaintiff, not a defendant. Am. Motorists Ins. Co. v. Trane Co., 657 F.2d 146, 149 (7th Cir.1981) (where “jurisdiction is based on diversity of citizenship, the court may ascertain whether the alignment of the parties as plaintiff and defendant conforms with their true interests in the litigation”); Moor v. Alameda County, 411 U.S. 693, 717-18, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973) (municipal corporation is a corporation for diversity purposes). However, the Court remanded for failure to satisfy the amount in controversy requirement. Gibson v. Am. Cyanamid, et al., No. 07-C-358 (E.D.Wis.) (D. 48). After pursuing damages discovery in state court, the defendants removed again on September 26, 2007. The plaintiff and his guardian ad litem are citizens of Wisconsin. All of the corporate defendants are citizens of states other than Wisconsin. The presence of Milwaukee County, as noted above, does not destroy diversity. The removing defendants allege, and Gibson no longer disputes, that the amount in controversy exceeds $75,000. Accordingly, the Court may exercise jurisdiction" }, { "docid": "13586786", "title": "", "text": "of the action improper, that party shall be dismissed from the action. . We point out that the jurisdictional defect in this case cannot be resolved by realignment of the parties. The third sentence of Rule 19(a) provides that a person who should be joined but who \"refuses to do so ... may be made a defendant. ...” The language of the Rule clearly limits the court’s realignment power to joinder of recalcitrant or unwilling nonparties, and has no application to situations, as in this case, where the absentee brings suit on its own behalf. Moreover, federal courts will not realign parties who are citizens of the same state simply to preserve jurisdiction if they actually belong on opposite sides of the case. 13B Wright, Miller & Cooper § 3607 (2d ed. 1984). See, e.g., Faysound Limited v. United Coconut Chemicals, Inc., 878 F.2d 290, 295-96 (9th Cir.1989); Rogers v. Valentine, 426 F.2d 1361, 1363 (2d Cir.1970) (per curiam). Realignment is undoubtedly improper when the court finds that an actual, substantial controversy exists between a party on one side of the dispute and its named opponent. See American Motorists Insurance Company v. Trane Company, 657 F.2d 146, 149 (7th Cir.1981). It would make no sense to realign American States as a defendant in the action because the insurer's interests are plainly adverse to those of James Cartwright. In its \"Brief in Support of Motion to Join as Party Plaintiff,” the company states: If American States' lien is invalid, then it has a separate cause of action against Defendant, James Cartwright, for the economic damages it has paid already on behalf of Ms. Krueger arising out of said motor vehicle accident. In either event, whether the lien is valid or whether American States has a claim against Cartwright directly for the amounts it has expended for no-fault benefits, American States should be added as an intervening party Plaintiff to this litigation in accordance with the terms of FRCP 19. .28 U.S.C. § 1367 provides a statutory basis for pendent claim, pendent party, and ancillary jurisdiction — all renamed \"supplemental jurisdiction.\" Section" }, { "docid": "6695702", "title": "", "text": "of parties. See City of Indianapolis, 314 U.S. 63, 62 S.Ct. 15, 86 L.Ed. 47. In City of Indianapolis, Chase, a New York corporation, sued Indianapolis Gas Co., Citizens Gas Co., and the City of Indianapolis, all Indiana residents. Id. at 68, 62 S.Ct. at 16. The Court explained that there must be an actual, substantial controversy between citizens of different states to sustain diversity jurisdiction. Id. at 69, 62 S.Ct. at 17. To do that, a court must “look beyond the pleadings, and arrange the parties according to their sides in the dispute.” Id. (quotation omitted). The “necessary ‘collision of interest’ ” has to be determined “from the ‘principal purpose of the suit,’ and the ‘primary and controlling matter in dispute.' ” Id. (citations omitted). In City of Indianapolis itself, the Court found that the principal matter in dispute was whether a lease was valid. Id. at 71, 62 S.Ct. at 18. Since both Chase and Indianapolis Gas wanted the lease enforced, Indianapolis Gas was realigned as a plaintiff with Chase. Id. at 74, 62 S.Ct. at 19. Therefore, citizens of Indiana were on both sides of the dispute and there was no diversity jurisdiction. Id. The Fifth Circuit has consistently followed the principles of City of Indianapolis. See Lowe v. Ingalls Shipbuilding, A Div. of Litton Sys., Inc., 723 F.2d 1173, 1177-78 (5th Cir.1984) (named defendant Owens-Coming had no dispute with plaintiffs and, therefore, Owens-Corning realigned as plaintiff resulting in Delaware citizens on both sides); Indemnity Ins. Co. v. First Nat’l Bank at Winter Park, Fla., 351 F.2d 519, 522-23 (5th Cir.1965) (no bona fide dispute between Indemnity and Winter Park Bank, resulting in realignment and no diversity). ? subject matter jurisdiction is proper, the court may have ancillary jurisdiction over additional claims or parties that it may not have had otherwise. Whether the court has ancillary jurisdiction over the claim or party depends on the type of claim or party. If the claim is a compulsory counterclaim, Fed.R.Civ.P. 13(a), a cross-claim, Fed.R.Civ.P. 13(g), or if the party is added pursuant to a counterclaim or cross-claim, Fed.R.Civ.P. 13(h)," }, { "docid": "6695701", "title": "", "text": "and (2) the underdrain claim, or whether the underdrain was properly constructed. The district court decided, and all parties agree, that Garland was the plaintiff on the process design claim. The court also decided that Garland was the “real plaintiff in interest” on the under-drain claim. Using City of Indianapolis v. Chase Nat’l Bank, 314 U.S. 63, 62 S.Ct. 15, 86 L.Ed. 47 (1941), the court then realigned Garland as the plaintiff on the underdrain claim. The realignment put Texas citizens on both sides of the suit — Garland as plaintiff, URS as defendant — and diversity jurisdiction was destroyed. The court then dismissed the entire case for lack of subject matter jurisdiction. II. A. As a general rule, diversity of citizenship is determined at the commencement of a lawsuit. Carlton v. BAWW, Inc., 751 F.2d 781, 785 (5th Cir.1985). Subsequent events, such as a change in citizenship or the amount in controversy falling below $10,000, will not divest the court of subject matter jurisdiction. Id. One exception to the general rule is the realignment of parties. See City of Indianapolis, 314 U.S. 63, 62 S.Ct. 15, 86 L.Ed. 47. In City of Indianapolis, Chase, a New York corporation, sued Indianapolis Gas Co., Citizens Gas Co., and the City of Indianapolis, all Indiana residents. Id. at 68, 62 S.Ct. at 16. The Court explained that there must be an actual, substantial controversy between citizens of different states to sustain diversity jurisdiction. Id. at 69, 62 S.Ct. at 17. To do that, a court must “look beyond the pleadings, and arrange the parties according to their sides in the dispute.” Id. (quotation omitted). The “necessary ‘collision of interest’ ” has to be determined “from the ‘principal purpose of the suit,’ and the ‘primary and controlling matter in dispute.' ” Id. (citations omitted). In City of Indianapolis itself, the Court found that the principal matter in dispute was whether a lease was valid. Id. at 71, 62 S.Ct. at 18. Since both Chase and Indianapolis Gas wanted the lease enforced, Indianapolis Gas was realigned as a plaintiff with Chase. Id. at 74," }, { "docid": "8170992", "title": "", "text": "the parties according to their real interests in the dispute. Dawson v. Columbia Ave. Sav. Fund, 197 U.S. 178, 180, 25 S.Ct. 420, 420-21, 49 L.Ed. 713 (1905). Realignment, then, may create or destroy diversity jurisdiction. See, e.g., Indianapolis v. Chase Nat’l Bank, 314 U.S. 63, 69, 62 S.Ct. 15, 16-17, 86 L.Ed. 47 (1941); Merchants’ Cotton-Press & Storage Co. v. Insurance Co. of N. Am., 151 U.S. 368, 385, 14 S.Ct. 367, 372-73, 38 L.Ed. 195 (1894). It is our duty, as it is that of the lower federal courts, to “look beyond the pleadings and arrange the parties according to their sides in the dispute.” ... Litigation is the pursuit of practical ends, not a game of chess. Whether the necessary “collision of interests” ... exists, is therefore not to be determined by mechanical rules. It must be ascertained from the “principal purpose of the suit” ... and the “primary and controlling matter in dispute.” Chase Nat’l Bank, 314 U.S. at 69, 62 S.Ct. at 17. The district court granted Eatherly’s motion to realign the parties on the ground that Eatherly’s interests in the litigation were identical to Safeco’s. Realignment, however, jeopardized the district court’s jurisdiction over the case. A case pitting Safeco and Eatherly against the City lacks complete diversity; complete diversity requires that no party share citizenship with any opposing party. To retain complete diversity, the district court decided to drop Eatherly from the case as a dispensable party. Safeco challenges the propriety of the district court’s realignment of the parties and contends that Eatherly was a necessary party. Rule 21 of the Federal Rules of Civil Procedure permits a district court to retain diversity jurisdiction over a case by dropping a nondiverse party if that party’s presence in the action is not required under Federal Rule of Civil Procedure 19, that is, the party to be dropped must not be a necessary party. See, e.g., Fritz v. American Home Shield Corp., 751 F.2d 1152, 1154-55 (11th Cir.1985); Publicker Indus., Inc. v. Roman Ceramics Corp., 603 F.2d 1065, 1068-69 (3d Cir.1979); Caperton v. Beatrice Pocahontas Coal" }, { "docid": "1037247", "title": "", "text": "of practicality and wise judicial administration,” Wilton, 515 U.S. at 288, 115 S.Ct. 2137, counsel against abstention, and we conclude that the District Court abused its discretion in granting the motion to' remand. V. Before the case proceeds, however, the District Court must determine whether it possesses jurisdiction to hear’ the case. See Steel Co. v. Citizens for Better Env’t, 523 U.S. 83, 93-102, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (holding that courts must consider their jurisdiction before they reach the merits of a case). Max-um asserts that diversity jurisdiction will exist under 28 U.S.C. . § 1332 once the. Court realigns the parties according to their interest in securing Maxum’s coverage of Carman’s potential liability to the Kellys. Indeed, “[i]n determining the alignment of the parties for jurisdictional purposes, ... courts have a ‘duty’ to ‘look beyond the pleadings and arrange the parties according to their sides in the dispute.’ ” Dev. Fin. Corp. v. Alpha Hous. & Health Care, Inc., 54 F.3d 156, 159 (3d Cir. 1995) (quoting Indianapolis v. Chase Nat’l Bank, 314 U.S. 63, 69, 62 S.Ct. 15, 86 L.Ed. 47 (1941)). To do so, the court must identify the “principal purpose of the suit” and look at “the facts .as they existed, at the time the action was commenced ... to determine the position of the parties,” Emp’rs Ins. of Wausau v. Crown Cork & Seal Co., 905 F.2d 42, 45-46 (3d Cir. 1990) (quoting Indianapolis, 314 U.S. at 69, 62 S.Ct. 15). Having decided to abstain from entertaining the Declaratory Action, the District Court declined to consider Maxum’s argument. Therefore, we will remand for the Court to decide whether it has subject matter jurisdiction over the action. See id. at 47. VI. For the foregoing reasons, we will reverse the District Court’s order and remand this action for further proceedings consistent with this opinion. . After filing the Declaratory Action, the. Kel-lys sought to stay discovery in the Tort Action to allow the issue of coverage to' be resolved. Carman opposed the Kellys’ request, arguing that it was premature to address coverage prior" } ]

[ { "docid": "14775545", "title": "", "text": "the petitioner knew at the time of his guilty plea that he could receive consecutive sentences and that “the motion and files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255. We therefore on the Rule 11 question affirm the denial of the district court of petitioner’s § 2255 petition without an evidentiary hearing. As to petitioner’s second allegation of error, this court stated in United States v. Fannon, 403 F.2d 391, 394 (7th Cir. 1968): [T]hat a general sentence may be imposed if it is not greater than the maximum penalty which may be given under any count. United States v. Barney, 371 F.2d 166 (7th Cir. 1966), cert. denied 387 U.S. 905 [87 S.Ct. 2080, 18 L.Ed.2d 1333]. Consequently, the government on appeal concedes that since the maximum penalty petitioner could have received on any one count was ten years, it was error to give petitioner a general sentence of twelve years. We agree. Since this error in sentencing is not of the fundamental kind which can be reached under 28 U.S.C. § 2255 petition, Benson v. United States, 332 F.2d 288, 292 fn. 10 (5th Cir. 1964), we construe petitioner’s allegation of error as a motion for the correction of an illegal sentence pursuant to Rule 35 of the Federal Rules of Criminal Procedure. See United States v. Coke, 404 F.2d 836, 847 (2d Cir. 1968). Consequently, we remand this cause to the trial court for treatment pursuant to Rule 35. Affirmed in part, reversed and remanded in part. . Petitioner’s brief on appeal was also pro se, but he was represented by counsel at oral argument. . This sentence was to run concurrently with a sentence imposed on him by the United States District Court for the Central Division of California on March 31, 1964. See United States v. Marshall, Criminal Case No. 32835. . Rule 11 amended in 1966 provides: A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of" } ]

[ { "docid": "22168379", "title": "", "text": "correct filed under Fed.R.Crim.P. 36. But we here hold that is not true in criminal sentencing; instead, citing many cases, we declare that the rule of law is that the oral pronouncement of sentence controls and overrides the written pronouncement of sentence in the judgment and commitment order. I agree with that general proposition for the reasons stated in the majority opinion and elaborated in the first section below. But I cannot agree entirely with the majority’s redaction of that proposition to an invariable and ostensibly simple rule. As discussed in the sections that follow, I think there are two major problems in moving from the general proposition to the application of an “oral controls the written” rule: (1) determining what in fact was the oral pronouncement of sentence; and (2) dealing with ambiguity or silence on an important aspect of the sentence. I The rule that the oral pronouncement controls in a conflict with the written order had its origin long before the promulgation of Rule 32(b)(1), requiring a written order setting forth the sentence. See Hill v. United States ex rel. Wampler, 298 U.S. 460, 465, 56 S.Ct. 760, 762, 80 L.Ed. 1283 (1936). As the majority notes, a primary rationale for the rule is the necessity for the defendant’s presence at sentencing. This is now covered by the requirement in Fed.R.Crim.P. 43 that the defendant be present at sentencing unless his punishment is to be reduced under Fed.R.Crim.P. 35. See Rakes v. United States, 309 F.2d 686, 687 (4th Cir.1962), cert. denied, 373 U.S. 939, 83 S.Ct. 1543, 10 L.Ed.2d 694 (1963). The history of the presence privilege was traced in United States v. Gregorio, 497 F.2d 1253 (4th Cir.), cert. denied, 419 U.S. 1024, 95 S.Ct. 501, 42 L.Ed.2d 298 (1974). There a defendant challenged his conviction on the ground that he had been excluded from a jury instruction conference in violation of the Due Process Clause and Rule 43. Id. at 1256-57. The circuit court affirmed the defendant’s conviction. But en route to that determination it recognized Rule 43 as a “restatement” of the common" }, { "docid": "8087145", "title": "", "text": "as to the sentences imposed on all counts. The judgment against B. J. Gradsky is affirmed as to the sentences imposed on all counts. The judgment against George Levine is vacated and the cause as to him is remanded to the District Court for a new trial. The judgment against Robert B. Roberts is affirmed as to the sentence imposed on Counts 3, 6 and 8. The judgment against Alfred Schiff is affirmed as to the sentences imposed on Counts 2 and 9 and the judgment and sentence on Count 8 are set aside and vacated. The judgment against Robert Grene is affirmed as to the sentences imposed on Counts 2, 3, 4, 5, 6, 8 and 9. The judgment against Leonard L. Glaser is affirmed as to the sentences imposed on all counts. The judgment against E. E. Gibbons is affirmed as to the sentence imposed on Count 6. The judgments and sentences on Count 10 against all of the appellants were affirmed on the appeal, certiorari was denied, and that count is not before this court on remand. The case is remanded for further proceedings not inconsistent with this opinion and judgment. Affirmed in part and reversed in part. . Gertrude Hogue has shown no interest in participating in this proceeding. . E.g., we recalled the mandate with respect to appellant Roberts after' he had petitioned the Supreme Court for certio-rari. . The following were submitted and considered on the appeal and are re-submitted again in this proceeding: The appellants’ contention that the district court erred in refusing to instruct on the essential elements of conspiracy and of the substantive offenses; the lack of evidence to sustain a conviction on direct participation, yet the failure to instruct on aiding and abetting or the commission of a substantive offense by co-conspirator as a part of and in furtherance of tile conspiracy; failure to instruct on specific intent and reasonable doubt; failure to grant a continuance; and the contention that the verdict was against the manifest weight of the evidence." }, { "docid": "2286257", "title": "", "text": ". Apparently, the district court also issued a declaratory judgment but the issuance of the judgment was not complained of by the defendants. . For example, in Carter I the plaintiff sought relief under 42 U.S.C. § 1983, similar to the relief sought in the instant case. The district court thought that the plaintiff’s remedy was properly by way of the writ of habeas corpus. In rejecting this view we stated: Moreover, we find that habeas corpus is not a practical alternative to Carter under the circumstances of this case. Habeas corpus lies essentially to challenge illegal restraint; the writ is not available where the sentence challenged has been fully served and is not being used for enhancement purposes. E. g., Diehl v. Wainwright, 423 F.2d 1108 (5 Cir. 1970); United States ex rel. Stewart v. Yeager, 434 F.2d 1308 (3 Cir. 1970); see Hudson v. State of Alabama, 361 F.Supp. 1102 (M.D. Ala.1973), rev’d on other grounds, 493 F.2d 171 (5 Cir. 1974). Since, according to Carter’s allegations, he is not presently confined as a direct or indirect result of either the 1963 or 1965 conviction, remission of his claim to habeas corpus would be remission to a dead end. 526 F.2d at 315. See also Ellis v. Dyson, 421 U.S. 426, 95 S.Ct. 1691, 1699, 44 L.Ed.2d 274 (1975); Westberry v. Keith, 434 F.2d 623 (5 Cir. 1970), Theriault v. United States ex rel. State of Mississippi, 433 F.2d 990 (5 Cir. 1970). Additionally, we have refused to allow collateral attack upon state convictions via the writ of error coram nobis. Although the writ of error coram nobis has been abolished in the civil context, see Fed.Rules Civ.Proc. 60(b), the writ still survives with respect to federal criminal convictions under the All Writ Statute, 28 U.S.C. § 1651(a). Correa-Negron v. United States, 473 F.2d 684 (5 Cir. 1973), Rener v. United States, 475 F.2d 125 (5 Cir. 1973), Rodgers v. United States, 451 F.2d 562 (5 Cir. 1971). But since the writ can be issued only by the original sentencing court, Grene v. United States, 448 F.2d 720," }, { "docid": "3189444", "title": "", "text": "felicity by Mr. Justice Cardozo in Hill v. United States ex rel. Wampler, 298 U.S. 460, 56 S.Ct. 760, 80 L.Ed. 1283 (1936): “Two of the questions certified to us * * * make mention of a variance between the commitment and the sentence ‘orally pronounced.’ If that were the only variance, we should deem it unimportant. The only sentence known to the law is the sentence or judgment entered upon the records of the court. [Citing cases.] If the entry is inaccurate, there is a remedy by motion to correct it to the end that it may speak the truth. People ex rel. Trainor v. Baker, 89 N.Y. 460, 466. But the judgment imports verity when collaterally assailed. Ibid. Until corrected in a direct proceeding, it says what it was meant to say, and this by an irrebutable presumption. In any collateral inquiry, a court will close its ears to a suggestion that the sentence entered in the minutes is something other than the authentic expression of the sentence of the judge.” (p. 464, 56 S.Ct. p. 762) After pointing out that the real issue in the case was not a variance between the sentence as recorded and as orally pronounced but rather between the sentence and the commitment, Mr. Justice Cardozo continued: “The argument is made that there is a practice in the Maryland District to make the commitment broader than the judgment, and that the practice should be given the quality of law. There is no such overriding virtue in usage or tradition. The court speaks through its judgment, and not through any other medium. It is not within the power of a judge by instructions to a clerk to make some other medium the authentic organ of his will. * * * Something more is needed than a few words of unrecorded talk between a judge and a pro-thonotary * * (pp. 465-466, 56 S.Ct. p. 763) Wampler is but an oft-quoted statement of a general principle. It was quoted with approval in the leading Pennsylvania case of Commonwealth ex rel. Scoleri v. Burke, 171 Pa.Super." }, { "docid": "604031", "title": "", "text": "CASTLE, Circuit Judge. The defendant, Ernest Joseph Gibas, prosecutes this appeal from an order of the District Court denying his motion, filed pursuant to Rule 35 of the Federal Rules of Criminal Procedure (18 U.S. C.A.), in which he sought correction of the sentence contained in the written judgment order entered on his conviction on thirty-five counts of a multiple count indictment. The defendant contends the District Court erred in denying his motion to correct the written judgment order to conform to the oral pronouncement of sentence and in this connection claims the oral sentence directed his imprisonment for a lesser period (3 years) than that contained in the written judgment order (6 years). The record discloses that in orally announcing the sentence the court stated defendant was to be sentenced “to one year on each of the counts of the indictment upon which he was found guilty, the said sentence to be served as follows”. The court then proceeded to detail which sentences on individual counts or groups of counts were to be served concurrently with or consecutively to the sentences on other counts and concluded “which makes a total of six years”. The intention of the court to impose a cumulative sentence of six years is not only reflected by the written judgment order signed by the court but is readily apparent from the court’s comment at the conclusion of the oral pronouncement “which makes a total of six years”. It is only by ignoring this comment, expository of the court’s intent, and by resorting to a literal consideration limited solely to the language in which the court orally assigns a concurrent or consecutive character to the sentences on various counts, that the defendant finds a basis for the conclusion he advances as to the duration of the total sentence imposed. But in resolving questions as to inconsistency or fatal ambiguity between the trial court’s oral pronouncement of sentence and the written order of judgment and commitment we must look to the record as a whole to determine the court’s intention in imposing sentence. United States v. Drake," }, { "docid": "7899245", "title": "", "text": "come forth with evidence sufficient to permit a reasonable juror to return a verdict in his or her favor on” an essential element of a claim on which the party bears the burden of proof. In re Omnicom Grp., Inc. Sec. Litig., 597 F.3d 501, 509 (2d Cir.2010). We may affirm on any ground supported by the record. See Beal v. Stern, 184 F.3d 117, 122 (2d Cir.1999). 2. Alleged Violation of Plaintiffs’ Constitutional Rights We begin with the State Defendants. Plaintiffs’ argument that the State Defen dants violated their constitutional rights is straightforward: They have a due process right, as articulated in Hill v. United States ex rel. Wampler, 298 U.S. 460, 56 S.Ct. 760, 80 L.Ed. 1283 (1936), to serve only the sentence imposed by the sentencing judge, until such time as this sentence is modified by a judge; the State Defendants held Plaintiffs in custody for longer than the period contemplated by the sentencing judge; ergo, the State Defendants violated Plaintiffs’ due process rights. The State Defendants do not dispute the minor premise listed above. Rather, they focus the bulk of their argument to this Court on the major premise: that Plaintiffs, in the circumstances of this case, had a constitutional right to serve only the term imposed by the sentencing judge. The seminal case for the constitutional right at issue here is Wampler. In that case, Wampler was convicted of tax evasion in federal court. Id. at 461, 56 S.Ct. 760. The sentencing judge pronounced the following sentence: “Fine five thousand dollars and eighteen months in penitentiary on each count of the indictment, said terms of imprisonment to be computed as beginning this 28th day of December 1933; fines to be cumulative and terms of imprisonment to run concurrently and that [Wampler] pay costs of proceedings.” Id. The clerk of the federal court in which the sentence had been pronounced, however, issued a commitment form bearing the following: That [Wampler] pay a fine of Five Thousand Dollars and be imprisoned ... for eighteen months on each count of the indictment; said term of imprisonment to be" }, { "docid": "8087136", "title": "", "text": "nom. Levine v. United States, 1966, 383 U.S. 265, 86 S.Ct. 925, 15 L.Ed.2d 737, affirmed the convictions of Norman Gradsky, B. J. Gradsky, Gertrude Hogue, Robert Grene, George Levine and Leonard L. Glaser. It affirmed the conviction of Robert B. Roberts as to Counts 3, 6, 8 and 10 and reversed as to the remaining Counts 1, 2, 4, 5, 7 and 9; it affirmed the conviction of Alfred Schiff as to Counts 2, 8, 9 and 10 and reversed as to the remaining Counts 1, 3, 4, 5, 6 and 7; and it affirmed the conviction of E. E. Gibbons as to Counts 6 and 10 and reversed as to the remaining Counts 1, 2, 3, 4, 5, 7, 8 and 9. Appellants Levine, Roberts, Grene, Norman Gradsky and B. J. Gradsky petitioned the Supreme Court for and were granted writs of certiorari, and as to them this court’s mandate was stayed. Appellants Gibbons, Hogue, Schiff and Glaser did not petition for certiorari, and this court’s mandate issued as to them on April 22, 1965, so they are now serving their sentences. Before reaching the merits, therefore, we must decide whether the appellants as to whom the mandate has already issued may be heard in this remand proceeding. Usually the issuance of a mandate by this court means that the litigation has come to an end. Hines v. Royal Indemnity Co., 6 Cir., 1958, 253 F.2d 111. This court can, however, recall its mandate to prevent injustice. Rules of the Fifth Circuit Court of Appeals, Rule 32; Meredith v. Fair, 5 Cir., 1962, 306 F.2d 374; 28 U.S.C.A. § 452. In view of the unusual circumstances of this case, the government’s expression of non-opposition, and our desire to avoid further protracted litigation by appellants not presently participating in this remand proceeding, we recall our mandate as to appellants Gibbons, Schiff and Glaser and allow them to join in this proceeding. The Supreme Court granted the petitions for writs of certiorari “* * * limited to the issue whether petitioners were improperly convicted of substantive offenses committed by members" }, { "docid": "2311828", "title": "", "text": "BREWSTER, District Judge: This appeal challenges the validity of an action taken by the trial court to correct an illegal sentence of appellant for violation of the Comprehensive Drug Abuse Prevention and Control Act of 1970. On August 26, 1971, Thomas Llerena, the appellant here, and Amado Lopez were each found guilty by a jury on a count charging them with conspiring with each other to possess cocaine with intent to distribute it, in violation of Title 21, U.S.C., Sec. 841(a)(1). On the following October 5th, Llerena was sentenced to serve eighteen months. Lopez received a longer prison sentence on his convictions on the three counts. The convictions of both Llerena and Lopez were affirmed. United States v. Lopez, et al., 5 Cir., 459 F.2d 949 (1972). After Llerena’s petition for certiorari was denied (409 U.S. 878, 93 S.Ct. 130, 34 L.Ed.2d 131), he surrendered to the proper United States Marshal on September 26, 1972, to begin service of his eighteen months sentence. On May 11, 1973, the Bureau of Prisons directed the sentencing court’s attention to the fact that Llerena’s sentence failed to include the special parole term made mandatory by statute under the circumstances. On June 4, 1973, that court entered a corrected judgment and commitment assessing Llerena’s punishment at eighteen months confinement, with a special parole term of three years in addition thereto, to be effective as of the date of the original judgment. That judgment complied with the penalty statute, but was invalid because the corrected sentence augmenting the earlier one was pronounced without having Llerena present. Caille v. United States, 5 Cir., 487 F.2d 614 (1973). Llerena got out of prison on mandatory release under 18 U.S.C. § 4163, on October 26, 1973. Shortly thereafter, he filed a motion to vacate the corrected judgment of the previous June 4th on the grounds that he was not present when the sentence therein provided was imposed, and that the court lacked authority to increase his sentence after he had begun service of it. The motion was denied on November 27, 1973. On December 7, 1973, Llerena filed" }, { "docid": "436043", "title": "", "text": "“Inconsistency” Schultz alleges that an inconsistency exists between the fine imposed on Counts One and Two at oral sentencing and the written judgment and commitment order entered the next day. Because of this, he argues that the judgment and commitment order must be modified so that the two $250,000 fines “run concurrently,” thus to-talling only $250,000. Schultz bases this argument on the long line of cases that hold that when an oral sentence conflicts with the written sentence, the oral sentence controls. See, e.g., Hill v. United States ex rel. Wampler, 298 U.S. 460, 56 S.Ct. 760, 80 L.Ed. 1283 (1936). Schultz’s reliance on these cases is misplaced and there is no merit to his argument. A close reading of the oral sentence reveals that the judge expressly limited the concurrent part of the sentence to the “[cjustody sentence.” Therefore, no true inconsistency exists. The cases hold that “[i]n the absence of clear language indicating consecutive sentences, it will be presumed that sentences imposed are concurrent. Where there is ambiguity, however, courts have usually been able to divine the intent of the sentencing judge.” C. WRIGHT, FEDERAL PRACTICE AND PROCEDURE § 527, at 116 (1982). Here, if there is any ambiguity, it can be resolved by looking at the written judgment, which provides that the total fine is $500,000, and the oral sentence, in which the judge states that the custody sentence is to run concurrently. Therefore, the written judgment will not be modified. Based on the foregoing determinations, we AFFIRM the defendant’s conviction on all counts." }, { "docid": "8087143", "title": "", "text": "convicting a defendant for a substantive offense committed by other members of the conspiracy of which the defendant is a member in furtherance of a conspiracy of which the defendant is not a member. The instruction thus was unnecessary here for there was evidence of only one conspiracy. Appellant Grene contends that the District Court abused its discretion in denying his motion for a continuance because, although his court appointed counsel was competent, he had insufficient time to prepare for trial and thus Grene did not have effective assistance of counsel. Grene raised this point on the appeal, argued it in his main brief and in his petition for rehearing following the affirmance of his conviction. We decline to again consider this question, because it has been previously decided and is not within the scope of the remand to this court by the Supreme Court. We conclude that in the light of the concession made by the Solicitor General, the evidence, the instructions to the jury, and the applicable principles of law, except as to the conviction of appellant Schiff for the offense charged in Count 8, the appellants were not improperly convicted of substantive offenses committed by members of the conspiracy before appellants had joined the conspiracy or after they had withdrawn from it. After oral argument was heard by this court on remand from the Supreme Court, the appellee filed a motion to vacate the judgment as to appellant Levine and remand the •cause as to him to the District Court for a new trial. It appears from the motion that the Federal Bureau of Investigation installed a microphone by trespass in a commercial establishment in which Levine may have had a proprietary interest and the Federal Bureau of Investigation overheard conversations of Levine with counsel relating to the charges. Levine was under indictment in this case and the trial on the indictment took place during the period of surveillance. The motion must, of course, be granted. Black v. United States, 1966, 385 U.S. 26, 87 S.Ct. 190, 17 L.Ed.2d 26. The judgment against Norman Grad-sky is affirmed" }, { "docid": "8087138", "title": "", "text": "of the conspiracy before petitioners had joined the conspiracy or after they had withdrawn from it.” The petitions were denied in all other respects. Levine v. United States, 383 U.S. at 266, 86 S.Ct. at 926. In disposing of the case the Supreme Court said: “In response to specific questions addressed by this Court, the Solicitor General has made a two-pronged concession: First, he concedes that an individual cannot be held criminally liable for substantive offenses committed by members of the conspiracy before that individual had joined or after he had withdrawn from the conspiracy; and second, he concedes that in this case some of the convictions for the substantive offenses must be reversed because they are inconsistent with this principle. On the basis of this concession, and upon consideration of the entire record, we vacate the judgment of the Court of Appeals insofar as it affirms petitioners’ convictions for the substantive offenses. We remand the case to that court with instructions to reverse the convictions the Solicitor General concedes must be reversed, and to determine, in light of the concession, the evidence, the instructions to the jury, and the applicable principles of law, whether in addition to the relief conceded by the Solicitor General petitioners are entitled to further relief regarding the convictions for the substantive offenses.” Id. at 266-267, 86 S.Ct. at 926. [Footnote omitted] The Solicitor General conceded that appellant Levine’s convictions on Counts 1, 3, 4, 5, 6, 7 and 8, and appellant Grene’s convictions on Counts 1 and 7 must be reversed; therefore, this court on remand reversed the convictions on the stated counts and vacated the sentences; denied a motion by the Gradskys to remand to the District Court; and directed all of the appellants to file motions urging such further consideration as they might deem appropriate. Notwithstanding the limited issue upon which the writs of certiorari were granted and thus our narrow scope of review on this remand, the appellants seek a re-review of alleged errors presented to and decided by us on the appeal and attempt to assert now for the first" }, { "docid": "23242208", "title": "", "text": "with the judgment, the court may, upon habeas corpus proceedings, resort to the judgment to determine whether the detention of the prisoner is lawful. Watkins v. Merry, 10 Cir., 106 F.2d 360. The prisoner is detained not by virtue of the warrant of commitment, but on account of the judgment and sentence. Hill v. United States ex rel. Wampler, 298 U.S. 460, 465, 56 S.Ct. 760, 80 L.Ed. 1283; Biddle v. Shirley, 8 Cir., 16 F.2d 566, 567; Howard v. United States, 6 Cir., 75 F. 986, 989, 34 L.R.A. 509. Compare Wilson v. Aderhold, 5 Cir., 84 F.2d 806. The original judgment and sentence as pronounced from the bench in the bank robbery case was 7% years. This sentence could not be increased by nunc pro tunc order to 10 years. The excessive 2% years of the sentence is plainly invalid. Where a court has jurisdiction of the person and of the offense, the imposition of a sentence in excess of that permissible by law does not render the lawfully authorized portion of the sentence void, but leaves open to attack on habeas corpus only such portion of the sentence as is excessive. United States v. Pridgeon, 153 U.S. 48, 62, 14 S.Ct. 746, 38 L.Ed. 631; McKee v. Johnston, 9 Cir., 109 F.2d 273, 276; Verheul v. Johnston, 9 Cir., 99 F.2d 757; Collins v. Morgan, 8 Cir., 243 F. 495, 497. The District Court has appropriately corrected the excessiveness of the sentence in the Mann Act case by reduction of the sentence from 7% to 5 years. The only excessiveness of sentence now apparent from the record is that of the unauthorized additional 2% years’ imprisonment imposed in the bank robbery case. The lawful aggregate punishment which has been adjudged by the District Court is 12% years’ imprisonment, only a portion of which time has yet been served by appellant. A prisoner who has not served out so much of a sentence as was within the power of the court to impose 'will not be discharged on application for a writ of habeas corpus. McNally v. Hill," }, { "docid": "22994319", "title": "", "text": "the sentence appearing on the records of the court. Should the record be inaccurate it may be corrected by appropriate motion. The judgment imports verity when collaterally assailed. Hill v. U. S. ex rel. Wampler, 298 U.S. 460, 464, 56 S.Ct. 760, 80 L.Ed. 1283. Until the order of October 27, 1947 is vacated, or amended, -it is the only matter of record which may serve as a basis for computation of parole. On the face of that record the sentences are consecutive. The Attorney General must fol low that record in computation of parole eligibility dates. To do otherwise would amount to a collateral attack on such judgment by the Attorney General. In the present case a writ of mandamus would require the Attorney General (a) to disregard his duty as to the basis of computation imposed by statute, and (b) to declare a judgment void. In McMurtrey v. Clark, 1945, 81 U.S.App.D.C. 294, 157 F.2d 703, 704, certiorari denied 329 U.S. 805, 67 S.Ct. 492, 91 L.Ed. 687, this court said: “Obviously, the Attorney General has neither the duty nor power to declare a judicial judgment void * * Mandamus, if issued m this case, would require performance of an act contrary to the court order. Furthermore, mandamus will issue only where there is no other plain, adequate and complete remedy. United States v. ex. rel. Girard Trust Co. v. Helvering, 301 U.S. 540, 543, 57 S.Ct. 855, 81 L.Ed. 1272. Here appellee has a complete remedy by motion to correct such sentence in the court where it was entered. In McMurtrey v. Clark, supra, this court held that the United States District Court for the District of Columbia was “clearly without jurisdiction” of an action against the Attorney General brought under the Declaratory Judgment Act to restrain the Attorney General from further execution of the judgment and commitment imposed upon appellant by the District Court of the United States for the District of Louisiana on the ground that such judgment and commitment were void. The Government’s motion to dismiss the complaint was granted by the court below," }, { "docid": "436042", "title": "", "text": "Rule 32, I’m not sure counsel and Mr. Schultz acknowledged receipt of the pre-sentence report, nor of their right to appeal.” Defense counsel responded, “That’s correct, your Honor. We do acknowledge receipt of the pre-sentence report.” The court then recessed. Schultz argues that the technical requirements of the rule were not met because the court did not ascertain that Schultz had read and discussed the presentence report. But defense counsel did not object to not having the opportunity to do so, and in fact acknowledged receipt of the report. Moreover, in his lengthy, impassioned statement to the court during the sentencing proceeding, in which he went into detail about Schultz’s age, health, family situation, standing in the community, and humiliation as a result of the trial, counsel did not challenge any aspect of the report. Since Schultz had the report and had the opportunity to object but did not, we infer that he had no objections to the report. Therefore, the requirements of the rule were substantially satisfied and this claim has no merit. Sentencing “Inconsistency” Schultz alleges that an inconsistency exists between the fine imposed on Counts One and Two at oral sentencing and the written judgment and commitment order entered the next day. Because of this, he argues that the judgment and commitment order must be modified so that the two $250,000 fines “run concurrently,” thus to-talling only $250,000. Schultz bases this argument on the long line of cases that hold that when an oral sentence conflicts with the written sentence, the oral sentence controls. See, e.g., Hill v. United States ex rel. Wampler, 298 U.S. 460, 56 S.Ct. 760, 80 L.Ed. 1283 (1936). Schultz’s reliance on these cases is misplaced and there is no merit to his argument. A close reading of the oral sentence reveals that the judge expressly limited the concurrent part of the sentence to the “[cjustody sentence.” Therefore, no true inconsistency exists. The cases hold that “[i]n the absence of clear language indicating consecutive sentences, it will be presumed that sentences imposed are concurrent. Where there is ambiguity, however, courts have usually been" }, { "docid": "7073233", "title": "", "text": "once the court pronounces a criminal sentence — which constitutes a “judgment” — the court has no lawful authority to supplement that sentence with a second one. Because the sentencing judge’s oral pronouncement constitutes the judgment of the court, and because the sentencing judge may impose one and only one judgment, the written judgment form is a nullity to the extent it conflicts with the previously pronounced sentence, id. at 772-73; see also Hill v. United States ex rel. Wampler, 298 U.S. 460, 464-65, 56 S.Ct. 760, 80 L.Ed. 1283 (1936); Lewis, 626 F.2d at 953; Kennedy v. Reid, 249 F.2d 492, 495 (D.C.Cir.1957). In this case, the District Court orally instructed the United States Bureau of Prisons to incarcerate Booker for 35 years under the then-applicable Guidelines. After pronouncing this sentence, the District Court had no lawful authority to pronounce a shorter “alternative sentence” because the District Court had no lawful authority to enter a second judgment. To the extent the District Court attempted to reduce or qualify its pronouncement of a Guidelines sentence by entering a shorter “alternative sentence” on the judgment form, the court’s original sentencing pronouncement controls. See, e.g., Lewis, 626 F.2d at 953; see also 18 U.S.C. § 3582(c) (“The court may not modify a term of imprisonment once it has been imposed except” under circumstances not relevant here.). Accordingly, we hold that Booker’s thirty-five-year Guidelines sentence was the only sentence the District Court imposed, and it is the only sentence before us today. Had the parties not stipulated to the fact that Booker was prejudiced by his Guidelines sentence, we would look to the “alternative sentence” only to determine prejudice vel non. Cf. United States v. Coles, 403 F.3d 764, 767 (D.C.Cir.2005) (per curiam) (holding that “in assessing whether the District Court’s Booker error was prejudicial, we must determine whether there would have been a materially different result, more favorable to the defendant, had the sentence been imposed in accordance with the post-Booker sentencing regime”); Simpson, 430 F.3d at 1191 (holding an identical “alternative sentence” rendered harmless the sentencing court’s Booker error). Because Booker’s" }, { "docid": "8087142", "title": "", "text": "in furtherance of the conspiracy before they joined the conspiracy. We need not determine the validity of this contention for the Solicitor General has conceded that convictions of such offenses should be reversed. Appellants also urge that the District Court should have charged that to find an appellant guilty of a substantive offense in which he did not directly participate, the jury must determine that the substantive offense was committed in furtherance of the conspiracy of which he was a member. We doubt that this contention is properly before us on remand but we note that no appellant either requested this instruction or objected to the failure of the court to give it, although the court heeded most of the objections made to its charges. Generally, the failure to object will prevent a party from presenting that error on appeal. Evans v. United States, 5 Cir., 1965, 349 F.2d 653; Alvarez v. United States, 5 Cir., 1960, 275 F.2d 299. In any event, the purpose of such an instruction is to preclude the possibility of convicting a defendant for a substantive offense committed by other members of the conspiracy of which the defendant is a member in furtherance of a conspiracy of which the defendant is not a member. The instruction thus was unnecessary here for there was evidence of only one conspiracy. Appellant Grene contends that the District Court abused its discretion in denying his motion for a continuance because, although his court appointed counsel was competent, he had insufficient time to prepare for trial and thus Grene did not have effective assistance of counsel. Grene raised this point on the appeal, argued it in his main brief and in his petition for rehearing following the affirmance of his conviction. We decline to again consider this question, because it has been previously decided and is not within the scope of the remand to this court by the Supreme Court. We conclude that in the light of the concession made by the Solicitor General, the evidence, the instructions to the jury, and the applicable principles of law, except as to" }, { "docid": "8087144", "title": "", "text": "the conviction of appellant Schiff for the offense charged in Count 8, the appellants were not improperly convicted of substantive offenses committed by members of the conspiracy before appellants had joined the conspiracy or after they had withdrawn from it. After oral argument was heard by this court on remand from the Supreme Court, the appellee filed a motion to vacate the judgment as to appellant Levine and remand the •cause as to him to the District Court for a new trial. It appears from the motion that the Federal Bureau of Investigation installed a microphone by trespass in a commercial establishment in which Levine may have had a proprietary interest and the Federal Bureau of Investigation overheard conversations of Levine with counsel relating to the charges. Levine was under indictment in this case and the trial on the indictment took place during the period of surveillance. The motion must, of course, be granted. Black v. United States, 1966, 385 U.S. 26, 87 S.Ct. 190, 17 L.Ed.2d 26. The judgment against Norman Grad-sky is affirmed as to the sentences imposed on all counts. The judgment against B. J. Gradsky is affirmed as to the sentences imposed on all counts. The judgment against George Levine is vacated and the cause as to him is remanded to the District Court for a new trial. The judgment against Robert B. Roberts is affirmed as to the sentence imposed on Counts 3, 6 and 8. The judgment against Alfred Schiff is affirmed as to the sentences imposed on Counts 2 and 9 and the judgment and sentence on Count 8 are set aside and vacated. The judgment against Robert Grene is affirmed as to the sentences imposed on Counts 2, 3, 4, 5, 6, 8 and 9. The judgment against Leonard L. Glaser is affirmed as to the sentences imposed on all counts. The judgment against E. E. Gibbons is affirmed as to the sentence imposed on Count 6. The judgments and sentences on Count 10 against all of the appellants were affirmed on the appeal, certiorari was denied, and that count is not" }, { "docid": "11011870", "title": "", "text": "try the issue of the validity of appellant’s confinement, that issue will not be unduly obscured by the obiter dicta against which this dissenting opinion is written. “The Parole Board and its members have been granted sole authority to issue a warrant for the arrest and return to custody of a prisoner who violates his parole.” Zerbst v. Kidwell, 1938, 304 U.S. 359, 361, 58 S.Ct. 872, 873, 82 L.Ed. 1399, 116 A.L.R. 808. “* * * The party, on whose behalf the petition has been presented, is not an inhabitant of the District of Columbia; he was not arrested or committed, and has never been confined, within its limits. Jurisdiction to issue the writ on his behalf, then, depends upon the single circumstance that the Secretary of the Navy is alleged to have the final control over his imprisonment. It is to this broad claim of jurisdiction that we deny our assent.” McGowan v. Moody, 1903, 22 App.D.C. 148, 163. Zerbst v. Kidwell, supra, note 1. Hill v. United States ex rel. Wampler, 1936, 298 U.S. 460, 465, 56 S.Ct. 760, 762, 80 L.Ed. 1283. King v. United States, 1938, 69 App.D.C. 10, 12-13, 98 F.2d 291, 293. “In construing the provisions of a judgment the usual canons of construction should be applied.” I Freeman on Judgments, § 76, p. 132 (5th Ed., 1925). “A sentence must be construed the same as any other judgment and the usual canons of construction should be applied.” Fredericks v. Snook, 5 Cir., 1925, 8 F.2d 966, 967. “When the jury have rendered their verdict, the court has to pronounce the proper judgment upon such verdict — and the law, in prescribing the punishment, either as to the extent, or the mode, or the place of it, should be followed. If the court is authorized to impose imprisonment, and it exceeds the time prescribed by law, the judgment is void for the excess. If the law prescribes a place of imprisonment, the court cannot direct a different place not authorized; it cannot direct imprisonment in a penitentiary when the law assigns that institution" }, { "docid": "14639586", "title": "", "text": "York is ambiguous and in need of correction with respect to the manner of computing the length of his sentence. He contends that the prison authorities should be directed to recompute his sentence so that one of his three five-year sentences would run concurrently with one of the other two sentences. He maintains that the sentencing court, when it orally pronounced sentence, stated that the sentence in question was to run concurrently and that the court erred when it entered in the official court record the notation that this sentence was to run consecutively to the other two. Without passing on the merits of Accardi’s allegation, we find that the denial of relief by the court below was correct. We base our holding on the ground that the district court below had no power to correct the supposed clerical error. Correction of clerical errors of the nature alleged in this ease, which is provided for in Fed.R.Crim.P. 36, is available only in the sentencing court. See Chapman v. United States, 6 Cir.1957, 247 F.2d 879, 881, cert. denied, 356 U.S. 945, 78 S.Ct. 791, 2 L.Ed.2d 820. We find strong support for our holding in Justice Cardozo’s opinion in Hill v. United States ex rel. Wampler, 1936, 298 U.S. 460, 56 S.Ct. 760, 762, 80 L.Ed. 1283, 1286-1287: “Two of the questions certified to us * * * make mention of a variance between the commitment and the sentence ‘orally pronounced.’ If that were the only variance, we should deem it unimportant. The only sentence known to the law is the sentence or judgment entered upon the records of the court. [Cases cited]. If the entry is inaccurate, there is a remedy by motion to correct it to the end that it may speak the truth. [Cases cited]. But the judgment imports verity when collaterally assailed. * * * Until corrected, in a direct proceeding, it says what it was meant to say, and this by an irrebuttable presumption. In any collateral inquiry, a court mil close its ears to a suggestion that the sentence entered in the minutes is" }, { "docid": "17015187", "title": "", "text": "HOLMES, Circuit Judge. The District Court for the Northern District of Georgia, on the face of his peti-. tion, denied the appellant’s application for a writ of habeas corpus, and he appeals. From the petition, it appears that he is confined in the United States Penitentiary in Atlanta, Ga., by virtue of a sentence imposed upon him by the United States District Court for the Middle District of Tennessee upon an indictment in two counts for forgery and uttering a forged instrument, respectively, in violation of section 29 of the Penal Code (18 U.S.C.A. § 73). The record shows that, after a plea of not guilty and his conviction by a jury, he was sentenced to “be confined for a period of four years in some institution to be designated by the Attorney General or his duly authorized agent and forfeit and pay to the United States a fine of Two Hundred ($200.00) Dollars for which execution may issue. And thereupon the defendant gave notice of appeal.” While the record is silent as to what took place on appeal, it is stated in the brief of appellant that the appeal was dismissed. It further appears that there was entered in the District Court a “judgment after appeal,” which recites that the cause coming on to be heard on mandate from the United States Circuit Court of Appeals, the defendant, W. L. Wilson, was ordered taken into custody by the marshal under the sentence theretofore imposed, which was to be effective from November 21, 1934. A mittimus was duly issued, but we look to the sentence to determine its force and effect. Hill v. U. S. ex rel. Wampler, 56 S.Ct. 760, 80 L.Ed. - (May 18, 1936). Having served about eighteen months of a four years’ sentence, the appellant predicates his claim for a discharge on several grounds, of which all but one relate to alleged infirmities in the form of the indictment or irregularities in the finding or return of the same by the grand jury. For instance, it is alleged that the indictment does not show a concurrence" } ]

[ { "docid": "22412068", "title": "", "text": "securities actions brought under section 10(b) and rule 10b-5, requires particularity in pleading the circumstances of the alleged fraud. Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1439 (9th Cir.1987) (citing Semegen v. Weidner, 780 F.2d 727, 734-35 (9th Cir.1985)). A pleading is sufficient under rule 9(b) if it identifies the circumstances constituting fraud so that a defendant can prepare an adequate answer from the allegations. Id. While statements of the time, place and nature of the alleged fraudulent activities are sufficient, mere conclusory allegations of fraud are insufficient. Id. In the present case, the section 10(b) and rule 10b-5 claims in the investors’ proposed third amended complaint do not allege the time, place or nature of the defendants’ allegedly fraudulent conduct. The complaint bases its allegations on information and belief, and fails to attribute particular fraudulent statements or acts to the individual defendants. We recently reviewed the particularity requirements in allegations of corporate fraud. Wool, 818 F.2d 1433. In Wool, plaintiffs who had purchased Tandem stock brought an action under, inter alia, section 10(b) and rule 10b-5. Their complaint alleged that defendants had fraudulently inflated the market price of Tandem securities before the plaintiffs’ bought them. The defendants challenged the allegations because they were based on information and belief, and failed to specify the conduct of each individual defendant. Id. at 1439-40. In Wool, we explained that allegations of fraud based on information and belief usually do not satisfy the particularity requirements under rule 9(b). Id. at 1439. However, the rule may be relaxed as to matters within the opposing party’s knowledge. For example, in cases of corporate fraud, plaintiffs will not have personal knowledge of all of the underlying facts. Id. “In such cases, the particularity requirement may be satisfied if the allegations are accompanied by a statement of the facts on which the belief is founded.” Id. (citations omitted). Instances of corporate fraud may also make it difficult to attribute particular fraudulent conduct to each defendant as an individual. To overcome such difficulties in cases of corporate fraud, the allegations should include the misrepresentations themselves with particularity" } ]

[ { "docid": "3499605", "title": "", "text": "that were false. While they do allege more facts concerning DJO, those facts also fail adequately to allege representative examples of false claims. The second amended complaint identifies three physician orders DJO received in 2011 for which it purportedly submitted claims to Medicare for reimbursement. The orders, however, are themselves not claims to Medicare. Rather, they are prescriptions received by DJO. Evidence of prescriptions do not plead the who, what, when, where, and why of any claims DJO submitted to Medicare. The allegation that claims were submitted to Medicare, moreover, is made on information and belief. “Allegations of fraud based on information and belief do not satisfy FRCP 9(b) requirements .... unless accompanied by a statement of the specific facts on which the belief is founded.” County of Santa Clara v. Astra U.S., Inc., 428 F.Supp.2d 1029, 1036-37 (N.D.Cal.2006) (citing Moore, 885 F.2d at 540); see also Shroyer v. New Cingular Wireless Services, Inc., 622 F.3d 1035, 1042 (9th Cir.2010) (“Claims made on information and belief are not usually sufficiently particular, unless they accompany a statement of facts on which the belief is founded”). Relators’ allegation on information and belief that DJO submitted claims to Medicare based on these physician orders is not supported by the pleading of specific facts'on which realtors’ belief is founded. It is therefore inadequate to support their claim of fraud. Even if relators’ allegation that DJO submitted claims to Medicare based on these physician orders were adequate to support their fraud claim, moreover, it is too conclusory to satisfy Rule 9(b). It does not state who at DJO submitted the claims, when they did so, where the claims were sent, or provide any details concerning the claims or what made them false. For all of these reasons, relators have not adequately alleged any representative examples of either defendant’s submission of false claims to Medicare or other federal programs. b. Whether Relators Have Adequately Alleged Particular Details of a Scheme to Submit False Claims Coupled with Reliable Indicia that Lead to a Strong Inference Claims were Actually Submitted Relators can also meet their pleading burden by" }, { "docid": "23463742", "title": "", "text": "heard the alleged misrepresentations” about the company’s prospects and financial status). Shroyer’s complaint does not allege any such communication. Therefore, the dismissal of the second claim was proper. As to the third claim, Shroyer erroneously argues that actual reliance need not be proven when the fraud is based on omissions of communication by New Cingular to its customers. The non-precedential cases on which Shroyer relies have not been adopted by California. Id. at 1093, 23 Cal.Rptr.2d 101, 858 P.2d 568. Moreover, Shroyer does not allege that, if New Cingular had included the omitted information on why service was degraded, he would have acted differently. Id. (“One need only prove that, had the omitted information been disclosed, one would have been aware of it and behaved differently.”). He merely states that the nondisclosure was fraudulent. This allegation is insufficient under California law, and the third claim for fraud based on omissions to Shroyer was also properly dismissed. C. Unfair Competition Shroyer alleges that New Cingular’s business practices have been “unlawful, unfair and deceptive” to the general public, in violation of California Business and Professions Code §§ 17200-210. Section 17200 defines unfair competition as “any unlawful, unfair or fraudulent business act or practice .... ” It is written in the disjunctive, establishing “three varieties of unfair competition.” People ex rel. Lockyer v. Fremont Life Ins. Co., 104 Cal.App.4th 508, 515, 128 Cal.Rptr.2d 463 (2002). In his complaint, Shroyer alleged that New Cingular violated the common law of unfair competition and breach ed his contract. These practices alone do not amount to a violation of the “unlawful” prong of § 17200; Shroyer must also allege that New Cingular engaged in a business practice “forbidden by law, be it civil or criminal, federal, state, or municipal, statutory, regulatory, or court-made.” Saunders v. Superior Court, 27 Cal.App.4th 832, 838-39, 33 Cal.Rptr.2d 438 (Cal.Ct.App.1994). In other words, a common law violation such as breach of contract is insufficient. See Allied Grape Growers v. Bronco Wine Co., 203 Cal.App.3d 432, 450-54, 249 Cal.Rptr. 872 (Cal.Ct.App.1988) (finding a § 17200 violation only after finding three violations of the" }, { "docid": "23463731", "title": "", "text": "regulate rates and market entry. To the degree, however, that Shroyer’s unfair competition claim alleges unfairness resulting from the merger itself or its approval by the FCC, it is preempted. Section 332 provides: “[N]o State or local government shall have any authority to regulate the entry of or the rates charged by any commercial mobile service or any private mobile service, except that this paragraph shall not prohibit a State from regulating the other terms and conditions of commercial mobile services.” 47 U.S.C. § 332(c)(3)(A). The FCC has stated that § 332 does not prevent states from deciding “whether under state law, there was a difference between promise and performance” of “the terms and conditions of a contract.” In re Wireless Consumers Alliance, Inc., 15 F.C.C.R. 17021, 17035 (2000). In that opinion, the FCC “reject[ed] arguments by [cellular phone service providers] that non-disclosure and consumer fraud claims are in fact disguised attacks on the reasonableness of the rate charged for the service.” Id. New Cingular would have this court rely on Bastien v. AT&T Wireless Servs., Inc., 205 F.3d 983 (7th Cir.2000), to hold that the substance of Shroyer’s claims is really an attack on the post-merger service, and that deciding the case would necessarily involve regulating the modes and conditions under which New Cingular may begin offering service. But the FCC rejected this per se argument in In re Wireless Consumers Alliance, and so do we. Bastien dealt with a pre-merger AT & T wireless consumer who was dissatisfied with the signal he was receiving on his cellular phone. He alleged that AT & T breached its contract and violated a state consumer protection statute by failing to build sufficient cell towers and misrepresenting the quality of its services. Bastien, 205 F.3d at 985. The Seventh Circuit held that although some of the claims sounded in traditional state law, they were all “founded on the fact that AT & T Wireless had not built more towers and more fully developed its network at the time Bastien tried to use the system.” Id. at 989. The FCC has interpreted Bastien" }, { "docid": "23463729", "title": "", "text": "alleged that, immediately following the merger, his cellular phone service was severely degraded. He claimed that New Cingular disregarded its obligations under the existing AT & T contract by failing to provide adequate service coverage and requiring Shroyer to sign a different contract with New Cingular if he desired to get the service that AT & T had contracted to provide under the first agreement. He also claimed that New Cingular misrepresented and omitted key facts about the consequence of the merger to the Federal Communications Commission (“FCC”), and that the FCC would not have approved the merger if it had known that New Cingular planned to ignore the obligations of existing AT & T contracts. On these allegations, he made claims for 1) breach of contract; 2) fraud and deceit; 3) unfair competition under Cal. Bus. & Prof.Code §§ 17200-210; and 4) a demand for a declaratory judgment. The district court granted New Cingular’s 12(b)(6) motion to dismiss each of the claims, and Shroyer appeals. We affirm the dismissal of the fraud and unfair competition claims and the dismissal of the claims for declaratory relief with regard to those claims, but we reverse the dismissal of the breach of contract claim and the claim for declaratory relief with regard to that claim. I. Federal Preemption New Cingular argues that Shroyer’s claims are preempted by 47 U.S.C. § 332(c)(3)(A) because the claims challenge the quality and rates of service, and those areas are reserved exclusively to the FCC. We reject this contention with regard to Shroyer’s breach of contract claim and his misrepresentation claim. In the main, Shroyer is challenging New Cingular’s rates and quality of service only insofar as they are contrary to the ones to which he had contractual rights or were misrepresented; he is not asking the court to rule on the reasonableness of a particular rate, and the quality of service is an issue only as it relates to, or was misrepresented as satisfying, the contract on which he sues. The claims are state law claims that do not tread on the FCC’s exclusive power to" }, { "docid": "23463744", "title": "", "text": "California Food and Agriculture Code); see also Nat’l Rural Telecomms. Coop. v. DIRECTV, Inc., 319 F.Supp.2d 1059, 1074-75 (C.D.Cal.2003) (holding that a violation of common law can support a § 17200 claim, provided that the conduct is also unlawful, unfair, or fraudulent). Because Shroyer does not go beyond alleging a violation of common law, he fails to state a claim under the unlawful prong of § 17200. Shroyer’s amended complaint also fails to allege facts that support the unfair and fraudulent prongs of § 17200. “ ‘Unfair’ simply means any practice whose harm to the victim outweighs its benefits.” Saunders, 27 Cal.App.4th at 839, 33 Cal.Rptr.2d 438. And “fraudulent” conduct “requires a showing [that] members of the public ‘are likely to be deceived.’ ” Id. (quoting Bank of the West v. Superior Court, 2 Cal.4th 1254, 1267, 10 Cal.Rptr.2d 538, 833 P.2d 545 (Cal.1992)). New Cingular is alleged to have misrepresented its intentions in the merger to the FCC and customers, and then misled customers concerning the quality of the new service. To the extent that these allegations concern merger negotiations between New Cingular and the FCC, they are preempted by 47 U.S.C. § 332(c)(3)(A). What remains are conclusory allegations about fraud and the unfair treatment of New Cingular’s customers, and the court cannot determine from Shroyer’s barebone allegations that he has stated a plausible claim. See Iqbal, 129 S.Ct. at 1949 (“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”) (internal quotation marks omitted). III. Declaratory Relief The district court’s dismissal of the claims for declaratory relief appears to have depended upon its ruling dismissing all claims for substantive relief. Because we affirm the district court’s dismissal of the fraud and unfair competition claims, we affirm the dismissal of the claims for declaratory relief on those claims. Because we reverse the district court’s dismissal of the breach of contract claim, we also reverse the denial of declaratory relief with regard to that claim. IV. Conclusion For the reasons above stated," }, { "docid": "1242172", "title": "", "text": "those defects from consumers, and chose to sell defective products rather than correcting the defects. Id. at 1068. c. Shroyer v. New Cingular On August 20, 2007, plaintiffs requested leave to file the decision in Shroyer v. New Cingular Wireless Sews., Inc., 498 F.3d 976 (9th Cir.2007). In Shroyer, the plaintiff filed a proposed class action against New Cingular Wireless Services and AT & T, alleging that he and the members of the proposed class had suffered injuries as a result of the 2004 merger between Cingu-lar Wireless and AT & T Wireless, which had created New Cingular Wireless Services. The plaintiff asserted that when the two companies merged, the services received by AT & T’s customers deteriorated, and that Cingular then attempted to induce AT & T’s customers to transfer their service plans and equipment from AT & T to Cingular in order to boost Cingular’s profits. In particular, he claimed that when customers complained about problems associated with their service plans, they were told that they could get a new “chip” that would solve the problems, but only if they extended their current contracts with Cin-gular. Plaintiff asserted claims under the CLRA and Business & Professions Code §§ 17200 and 17500, and also asserted claims of breach of contract, breach of the implied covenant, fraud, and unjust enrichment. The plaintiffs new service agreement with Cingular included an arbitration provision and a class action waiver, but apparently no choice-of-law provision. Cingular moved to compel arbitration and to dismiss the action, and the district court granted the motion. The court found that plaintiff had not met his burden of establishing both procedural and substantive uncon-scionability; that plaintiff had not shown that the arbitration provision operated to insulate Cingular from liability; that the challenge to the arbitration provision was preempted by § 2 of the FAA; and that the FAA preempted the CLRA’s anti-waiver provision as applied to arbitration provisions. See Shroyer v. New Cingular Wireless Services, Inc., No. CV-06-1792, slip op. at 3-7 (C.D. Cal., filed May 26, 2006). Shroyer is significant because it is the first reported Ninth Circuit" }, { "docid": "23463745", "title": "", "text": "that these allegations concern merger negotiations between New Cingular and the FCC, they are preempted by 47 U.S.C. § 332(c)(3)(A). What remains are conclusory allegations about fraud and the unfair treatment of New Cingular’s customers, and the court cannot determine from Shroyer’s barebone allegations that he has stated a plausible claim. See Iqbal, 129 S.Ct. at 1949 (“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”) (internal quotation marks omitted). III. Declaratory Relief The district court’s dismissal of the claims for declaratory relief appears to have depended upon its ruling dismissing all claims for substantive relief. Because we affirm the district court’s dismissal of the fraud and unfair competition claims, we affirm the dismissal of the claims for declaratory relief on those claims. Because we reverse the district court’s dismissal of the breach of contract claim, we also reverse the denial of declaratory relief with regard to that claim. IV. Conclusion For the reasons above stated, we affirm the dismissal of Shroyer’s common law fraud and unfair competition claims and the denial of declaratory relief with regard to those claims, and we reverse the dismissal of Shroyer’s breach of contract claim and denial of declaratory relief with regard to that claim. The parties will bear their own costs on appeal. AFFIRMED in part; REVERSED in part; and REMANDED. . Shroyer had made additional claims against New Cingular, but did not include them in his first amended complaint and does not urge them here. . Because the FCC is authorized to issue binding legal rules, an order issued under that authority is entitled to Chevron deference. Metrophones Telecomms., Inc. v. Global Crossing Telecomms., Inc., 423 F.3d 1056, 1065-66 (9th Cir.2005). .New Cingular attempts to distinguish In re Wireless Consumers Alliance by observing that there the FCC was deciding whether an award of damages based on stale law breach of contract and fraud claims was preempted by § 332. Here, New Cingular argues, we are confronted with whether the contract and fraud claims" }, { "docid": "23463741", "title": "", "text": "on assurances that a system’s development was “high priority”). “[A]ll the advantages that only the nation’s largest wireless company can provide” is a vague statement and provides nothing concrete upon which Shroyer could reasonably rely. Shroyer depends on the fraud-on-the-regulator theory to prove actual reliance in his second and third fraud claims. See Mirkin v. Wasserman, 5 Cal.4th 1082, 1095-96, 23 Cal.Rptr.2d 101, 858 P.2d 568 (Cal.1993) (where defendant has reason to know that a third party will communicate the defendant’s misrepresentation to plaintiff, and the third party in fact does so communicate, defendant is liable to plaintiff). As to the second fraud claim, for Shroyer successfully to argue that New Cingular misrepresented facts to the FCC, there must have been some communication between the FCC and Shroyer to the effect that New Cingular was planning on maintaining compliance with its preexisting contracts. Mirkin, 5 Cal.4th at 1089-1108, 23 Cal.Rptr.2d 101, 858 P.2d 568 (indirect communication principle inapplicable to plaintiff class of company stock purchasers because they could not “allege that they actually read or heard the alleged misrepresentations” about the company’s prospects and financial status). Shroyer’s complaint does not allege any such communication. Therefore, the dismissal of the second claim was proper. As to the third claim, Shroyer erroneously argues that actual reliance need not be proven when the fraud is based on omissions of communication by New Cingular to its customers. The non-precedential cases on which Shroyer relies have not been adopted by California. Id. at 1093, 23 Cal.Rptr.2d 101, 858 P.2d 568. Moreover, Shroyer does not allege that, if New Cingular had included the omitted information on why service was degraded, he would have acted differently. Id. (“One need only prove that, had the omitted information been disclosed, one would have been aware of it and behaved differently.”). He merely states that the nondisclosure was fraudulent. This allegation is insufficient under California law, and the third claim for fraud based on omissions to Shroyer was also properly dismissed. C. Unfair Competition Shroyer alleges that New Cingular’s business practices have been “unlawful, unfair and deceptive” to the general" }, { "docid": "23463740", "title": "", "text": "they were experiencing service degradations. Moreover, while the claims are made on information and belief, Shroyer explains exactly what it is that he believes constituted the fraudulent statements: New Cingular telling the FCC that it would honor its pre-existing contracts. Thus, the fraud claims have been pleaded with particularity sufficient to allow New Cingular to prepare an answer. 2. Reliance New Cingular next argues that the fraud claims cannot stand because Shroyer cannot prove both actual and justifiable reliance. See OCM Principal Opportunities Fund v. CIBC World Mkts. Corp., 157 Cal.App.4th 835, 864, 68 Cal.Rptr.3d 828 (Cal.Ct.App.2007) (holding that in fraud and nondisclosure claims, a plaintiff must show actual and justifiable reliance). Shroyer counters that reliance can be presumed because New Cingular misrepresented its plans to the FCC, and omitted information from Shroyer. The first count was properly dismissed because it is mere commercial “ ‘puffery’ upon which a reasonable consumer could not rely.” Glen Holly Entm’t, Inc. v. Tektronix, Inc., 343 F.3d 1000, 1015 (9th Cir.2003) (affirming dismissal of fraud claims that were based on assurances that a system’s development was “high priority”). “[A]ll the advantages that only the nation’s largest wireless company can provide” is a vague statement and provides nothing concrete upon which Shroyer could reasonably rely. Shroyer depends on the fraud-on-the-regulator theory to prove actual reliance in his second and third fraud claims. See Mirkin v. Wasserman, 5 Cal.4th 1082, 1095-96, 23 Cal.Rptr.2d 101, 858 P.2d 568 (Cal.1993) (where defendant has reason to know that a third party will communicate the defendant’s misrepresentation to plaintiff, and the third party in fact does so communicate, defendant is liable to plaintiff). As to the second fraud claim, for Shroyer successfully to argue that New Cingular misrepresented facts to the FCC, there must have been some communication between the FCC and Shroyer to the effect that New Cingular was planning on maintaining compliance with its preexisting contracts. Mirkin, 5 Cal.4th at 1089-1108, 23 Cal.Rptr.2d 101, 858 P.2d 568 (indirect communication principle inapplicable to plaintiff class of company stock purchasers because they could not “allege that they actually read or" }, { "docid": "23463739", "title": "", "text": "they would be fully supported by the newly merged company, providing “all the advantages only the nation’s largest wireless company can provide”; 2) to the FCC that the merger would improve service quality and coverage; and 3) to AT & T customers the reasons why their service was degraded. All three of these claims were properly dismissed, albeit for different reasons. 1. Particularity New Cingular first argues that all three counts fail the particularity requirement of Federal Rule of Civil Procedure 9(b). In order to plead fraud with particularity, the complaint must allege the time, place, and content of the fraudulent representation; conclusory allegations do not suffice. Moore v. Kayport Package Express, Inc., 885 F.2d 531, 540 (9th Cir.1989). Claims made on information and belief are not usually sufficiently particular, unless they accompany a statement of facts on which the belief is founded. Id. Here, Shroyer’s allegations of fraud concern a relatively definite time frame, beginning with the merger application to the FCC and ending with New Cingular’s refusal to disclose to its customers why they were experiencing service degradations. Moreover, while the claims are made on information and belief, Shroyer explains exactly what it is that he believes constituted the fraudulent statements: New Cingular telling the FCC that it would honor its pre-existing contracts. Thus, the fraud claims have been pleaded with particularity sufficient to allow New Cingular to prepare an answer. 2. Reliance New Cingular next argues that the fraud claims cannot stand because Shroyer cannot prove both actual and justifiable reliance. See OCM Principal Opportunities Fund v. CIBC World Mkts. Corp., 157 Cal.App.4th 835, 864, 68 Cal.Rptr.3d 828 (Cal.Ct.App.2007) (holding that in fraud and nondisclosure claims, a plaintiff must show actual and justifiable reliance). Shroyer counters that reliance can be presumed because New Cingular misrepresented its plans to the FCC, and omitted information from Shroyer. The first count was properly dismissed because it is mere commercial “ ‘puffery’ upon which a reasonable consumer could not rely.” Glen Holly Entm’t, Inc. v. Tektronix, Inc., 343 F.3d 1000, 1015 (9th Cir.2003) (affirming dismissal of fraud claims that were based" }, { "docid": "23463738", "title": "", "text": "opportunity to add the provisions to the complaint if necessary. Those provisions are: “Service rates and other charges and conditions for each Number or Device are described in your Sales Information”; and “Service is normally available to your Device when it is within the operating range of our system.” The contract also provided that “[s]ervice may be ... temporarily limited or interrupted due to system ... modifications,” and New Cingular argues that this provision defeats Shroyer’s breach of contract claim. New Cingular is wrong, at least from a Rule 12(b)(6) standpoint. Shroyer alleges that service was not “normally available” within the system’s range, and that this failure was neither temporary nor caused by the excepted conditions. Whether the service interruption provision in the contract covered the types of problems that Shroyer alleges is to be decided on summary judgment or beyond. Shroyer successfully stated a claim for breach of contract, and thus it was error to dismiss it. B. Fraud and Deceit Shroyer claims that New Cingular misrepresented: 1) to AT & T customers that they would be fully supported by the newly merged company, providing “all the advantages only the nation’s largest wireless company can provide”; 2) to the FCC that the merger would improve service quality and coverage; and 3) to AT & T customers the reasons why their service was degraded. All three of these claims were properly dismissed, albeit for different reasons. 1. Particularity New Cingular first argues that all three counts fail the particularity requirement of Federal Rule of Civil Procedure 9(b). In order to plead fraud with particularity, the complaint must allege the time, place, and content of the fraudulent representation; conclusory allegations do not suffice. Moore v. Kayport Package Express, Inc., 885 F.2d 531, 540 (9th Cir.1989). Claims made on information and belief are not usually sufficiently particular, unless they accompany a statement of facts on which the belief is founded. Id. Here, Shroyer’s allegations of fraud concern a relatively definite time frame, beginning with the merger application to the FCC and ending with New Cingular’s refusal to disclose to its customers why" }, { "docid": "23463747", "title": "", "text": "themselves are preempted. This difference does not affect our conclusion; if damages are not preempted, neither are the claims under which they are awarded. . New Cingular relies on Aubrey v. Ameritech Mobile Commc'ns., Inc., No. 00-75080, 2002 WL 32521813 (E.D.Mich.2002), which held a claim of breach of contract similar to Shroyer's preempted because \"a decision in the Plaintiff's favor would require a determination as to the type and adequacy of the technology that a wireless service provider ... must use in order to enter or serve a particular market.” Id. at *3. We do not accept Aubrey’s general conclusion. Shroyer can succeed on his breach of contract claim if he can show that New Cingular did not perform their promises, regardless of the relative adequacy of various technologies. . His misrepresentation claim also is not preempted, but as we will explain, there are other deficiencies that support its dismissal. . It appears, by statements made in the dismissal order, that the district court considered materials outside of the pleadings, such as the Shroyer/AT & T contract, a press release regarding the AT & T/Cingular merger, and the FCC's merger order. When this is the case, the 12(b)(6) motion should be converted into one for summary judgment, and the parties should be given an opportunity to present related materials. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir.2001). The district court did not decide the motion under the summary judgment standard, and the parties do not challenge this choice. Therefore, we analyze the claims under a 12(b)(6) standard. . Shroyer’s complaint could easily be amended to refer specifically to the contract provisions, but the lack of such an amendment thus far does not affect our analysis. The contract is in the record and the district court considered it when ruling. Moreover, Shroyer's complaint clearly sets out the facts and legal theory under which he seeks relief. . New Cingular also cites to a 2004 press release and In re Applications of AT & T Wireless Servs., 19 F.C.C.R. 21522 (2004), in responding to Shroyer’s breach of contract" }, { "docid": "21312705", "title": "", "text": "merger. Shroyer pled seven causes of action based on California state statutes and common law, including (1) unfair competition under Cal. Bus. & Prof.Code § 17200, et seq.; (2) untrue and misleading advertising under Cal. Bus. & Prof.Code § 17500; (3) violations of the Consumers Legal Remedies Act, Cal. Civil Code § 1750; (4) breach of contract; (5) breach of the covenant of good faith and fair dealing; (6) fraud and deceit under Cal. Civil Code § 1710; and (7) unjust enrichment. Shroyer requested damages, declaratory relief, and injunctive relief. Shroyer’s complaint alleges that when AT & T and Cingular merged the cellular phone services received by AT & T’s customers deteriorated significantly. Simultaneously, Cingular sought to induce the customers of AT & T to transfer their service plans and equipment from AT & T to Cingular in order to increase the company’s profits. When class members complained about the new problems associated with their AT & T service plans, Cingular allegedly told them that it could provide members with a “chip” that would restore their service quality. To receive the chip, however, class members would be required to extend their current contracts by entering into “Wireless Service Agreements” (Agreements) with Cingular, and, thus, to switch their service plans from AT & T to Cingular. Cingular also allegedly told class members that when they extended their contracts with Cingular, they would not be able to retain the more favorable rates contained in their existing AT & T contacts. Shroyer initially subscribed to AT & T service plans in 2000 and 2003. After the merger, he complained about his service, and Cingular told him that it would be improved if he signed a new contract with Cingular. On January 2, 2005, Shroyer switched his two cellular phone accounts from AT & T to Cingular by entering into new Agreements with Cingular. Shroyer, like other class members who entered into Agreements with Cingular, executed an electronic signature over the telephone to assent to the terms of the Agreements. Shroyer selected the answer “Yes” in response to the statement “You agree to the" }, { "docid": "23463732", "title": "", "text": "Servs., Inc., 205 F.3d 983 (7th Cir.2000), to hold that the substance of Shroyer’s claims is really an attack on the post-merger service, and that deciding the case would necessarily involve regulating the modes and conditions under which New Cingular may begin offering service. But the FCC rejected this per se argument in In re Wireless Consumers Alliance, and so do we. Bastien dealt with a pre-merger AT & T wireless consumer who was dissatisfied with the signal he was receiving on his cellular phone. He alleged that AT & T breached its contract and violated a state consumer protection statute by failing to build sufficient cell towers and misrepresenting the quality of its services. Bastien, 205 F.3d at 985. The Seventh Circuit held that although some of the claims sounded in traditional state law, they were all “founded on the fact that AT & T Wireless had not built more towers and more fully developed its network at the time Bastien tried to use the system.” Id. at 989. The FCC has interpreted Bastien to hold that it is the substance of the claim, not its form, that determines preemption. In re Wireless Consumers Alliance, Inc., 15 F.C.C.R. at 17036-37. New Cingular correctly asserts that in both that case and here, the plaintiffs challenged the level of service they received as wireless customers. But the important difference lies in the theories on which they based their challenges. The plaintiff in Bastien was asking the court to decide the requisite number of cellular towers needed to support service. Here, on the other hand, Shroyer is asking the court to decide whether New Cingular has performed its promise in a contract and whether it misrepresented the level of service it would provide. The latter inquiries are ones that § 332, as interpreted in Wireless, leaves open to state adjudication. Similarly, a court does not have to determine the reasonableness of rates to decide Shroyer’s fraud claim, for “[a] carrier may charge whatever price it wishes and provide the level of service it wishes, as long as it does not misrepresent either" }, { "docid": "23463730", "title": "", "text": "competition claims and the dismissal of the claims for declaratory relief with regard to those claims, but we reverse the dismissal of the breach of contract claim and the claim for declaratory relief with regard to that claim. I. Federal Preemption New Cingular argues that Shroyer’s claims are preempted by 47 U.S.C. § 332(c)(3)(A) because the claims challenge the quality and rates of service, and those areas are reserved exclusively to the FCC. We reject this contention with regard to Shroyer’s breach of contract claim and his misrepresentation claim. In the main, Shroyer is challenging New Cingular’s rates and quality of service only insofar as they are contrary to the ones to which he had contractual rights or were misrepresented; he is not asking the court to rule on the reasonableness of a particular rate, and the quality of service is an issue only as it relates to, or was misrepresented as satisfying, the contract on which he sues. The claims are state law claims that do not tread on the FCC’s exclusive power to regulate rates and market entry. To the degree, however, that Shroyer’s unfair competition claim alleges unfairness resulting from the merger itself or its approval by the FCC, it is preempted. Section 332 provides: “[N]o State or local government shall have any authority to regulate the entry of or the rates charged by any commercial mobile service or any private mobile service, except that this paragraph shall not prohibit a State from regulating the other terms and conditions of commercial mobile services.” 47 U.S.C. § 332(c)(3)(A). The FCC has stated that § 332 does not prevent states from deciding “whether under state law, there was a difference between promise and performance” of “the terms and conditions of a contract.” In re Wireless Consumers Alliance, Inc., 15 F.C.C.R. 17021, 17035 (2000). In that opinion, the FCC “reject[ed] arguments by [cellular phone service providers] that non-disclosure and consumer fraud claims are in fact disguised attacks on the reasonableness of the rate charged for the service.” Id. New Cingular would have this court rely on Bastien v. AT&T Wireless" }, { "docid": "23463728", "title": "", "text": "claim, we also reverse the denial of declaratory relief with regard to that claim. At 606 F.3d at 667, the first sentence of Section IV, entitled “Conclusion,” is amended to state: For the reasons above stated, we affirm the dismissal of Shroyer’s common law fraud and unfair competition claims and the denial of declaratory relief with regard to those claims, and we reverse the dismissal of Shroyer’s breach of contract claim and denial of declaratory relief with regard to that claim. There are no pending petitions for panel or en banc rehearing. No subsequent petitions for panel or en banc rehearing may be filed. The mandate shall issue in due course. The amended opinion is filed contemporaneously with this order. OPINION CANBY, Circuit Judge: Appellant Kennith Shroyer filed a class action against New Cingular Wireless Services, Inc., a corporation resulting from the merger of AT & T Wireless Services, Inc., and Cingular Wireless Corporation. At the time of the merger in 2004, Shroyer had a contract for wireless telephone services with AT & T. He alleged that, immediately following the merger, his cellular phone service was severely degraded. He claimed that New Cingular disregarded its obligations under the existing AT & T contract by failing to provide adequate service coverage and requiring Shroyer to sign a different contract with New Cingular if he desired to get the service that AT & T had contracted to provide under the first agreement. He also claimed that New Cingular misrepresented and omitted key facts about the consequence of the merger to the Federal Communications Commission (“FCC”), and that the FCC would not have approved the merger if it had known that New Cingular planned to ignore the obligations of existing AT & T contracts. On these allegations, he made claims for 1) breach of contract; 2) fraud and deceit; 3) unfair competition under Cal. Bus. & Prof.Code §§ 17200-210; and 4) a demand for a declaratory judgment. The district court granted New Cingular’s 12(b)(6) motion to dismiss each of the claims, and Shroyer appeals. We affirm the dismissal of the fraud and unfair" }, { "docid": "21312704", "title": "", "text": "REINHARDT, Circuit Judge: In this case, we consider whether a class arbitration waiver in New Cingular Wireless Service Inc.’s standard contract for cellular phone services is unconscionable under California law, and whether the Federal Arbitration Act preempts a holding that the waiver is unenforceable. We hold that the waiver is unconscionable, and, thus, unenforceable, and that the invalidation of the contract provision is not preempted by the Federal Arbitration Act. Accordingly, we reverse the district court’s order compelling arbitration. I. Procedural and Factual Background On February 22, 2006, Appellant Kennith Shroyer filed a class action lawsuit in the California Superior Court against Ap-pellees New Cingular Wireless Services, Inc., AT & T Corp. (AT & T), and Does 1 through 100, alleging that he and similarly situated plaintiffs (“the class” or “class members”) had suffered injuries as a result of the 2004 merger between Cingular Wireless LLC and AT & T Wireless Services, Inc. (AT & T) that created New Cingular Wireless Services, Inc. (Cingu-lar), and in particular by the actions of Cingular subsequent to the merger. Shroyer pled seven causes of action based on California state statutes and common law, including (1) unfair competition under Cal. Bus. & Prof.Code § 17200, et seq.; (2) untrue and misleading advertising under Cal. Bus. & Prof.Code § 17500; (3) violations of the Consumers Legal Remedies Act, Cal. Civil Code § 1750; (4) breach of contract; (5) breach of the covenant of good faith and fair dealing; (6) fraud and deceit under Cal. Civil Code § 1710; and (7) unjust enrichment. Shroyer requested damages, declaratory relief, and injunctive relief. Shroyer’s complaint alleges that when AT & T and Cingular merged the cellular phone services received by AT & T’s customers deteriorated significantly. Simultaneously, Cingular sought to induce the customers of AT & T to transfer their service plans and equipment from AT & T to Cingular in order to increase the company’s profits. When class members complained about the new problems associated with their AT & T service plans, Cingular allegedly told them that it could provide members with a “chip” that would restore" }, { "docid": "1242171", "title": "", "text": "the Terms and Conditions or sales of the computer. Alienware moved to compel arbitration, and plaintiff argued that the arbitration provision was unconscionable because of the class action waiver. The court denied the motion, finding that the class action waiver was unconscionable because the facts met Discover Bank’s three criteria. First, the court found that the contract was presented on a “take it or leave it” basis. Id. at 1067. Second, with regard to the amount of damages, the court noted that the Court of Appeal in Cohen had rejected the proposition that sums exceeding $1000 necessarily fall outside the framework of Discover Bank, and also had rejected the reasoning in Provencher regarding the amount of recovery. Based on Cohen, the court found that the $4,149 that the plaintiff paid for his computer was within the Discover Bank limit. Id. at 1067-68. Finally, the court found that the complaint alleged that Alienware had acted deliberately to deprive consumers of money, in that Alienware was alleged to have been aware of defects in its products, concealed those defects from consumers, and chose to sell defective products rather than correcting the defects. Id. at 1068. c. Shroyer v. New Cingular On August 20, 2007, plaintiffs requested leave to file the decision in Shroyer v. New Cingular Wireless Sews., Inc., 498 F.3d 976 (9th Cir.2007). In Shroyer, the plaintiff filed a proposed class action against New Cingular Wireless Services and AT & T, alleging that he and the members of the proposed class had suffered injuries as a result of the 2004 merger between Cingu-lar Wireless and AT & T Wireless, which had created New Cingular Wireless Services. The plaintiff asserted that when the two companies merged, the services received by AT & T’s customers deteriorated, and that Cingular then attempted to induce AT & T’s customers to transfer their service plans and equipment from AT & T to Cingular in order to boost Cingular’s profits. In particular, he claimed that when customers complained about problems associated with their service plans, they were told that they could get a new “chip” that would" }, { "docid": "23463746", "title": "", "text": "we affirm the dismissal of Shroyer’s common law fraud and unfair competition claims and the denial of declaratory relief with regard to those claims, and we reverse the dismissal of Shroyer’s breach of contract claim and denial of declaratory relief with regard to that claim. The parties will bear their own costs on appeal. AFFIRMED in part; REVERSED in part; and REMANDED. . Shroyer had made additional claims against New Cingular, but did not include them in his first amended complaint and does not urge them here. . Because the FCC is authorized to issue binding legal rules, an order issued under that authority is entitled to Chevron deference. Metrophones Telecomms., Inc. v. Global Crossing Telecomms., Inc., 423 F.3d 1056, 1065-66 (9th Cir.2005). .New Cingular attempts to distinguish In re Wireless Consumers Alliance by observing that there the FCC was deciding whether an award of damages based on stale law breach of contract and fraud claims was preempted by § 332. Here, New Cingular argues, we are confronted with whether the contract and fraud claims themselves are preempted. This difference does not affect our conclusion; if damages are not preempted, neither are the claims under which they are awarded. . New Cingular relies on Aubrey v. Ameritech Mobile Commc'ns., Inc., No. 00-75080, 2002 WL 32521813 (E.D.Mich.2002), which held a claim of breach of contract similar to Shroyer's preempted because \"a decision in the Plaintiff's favor would require a determination as to the type and adequacy of the technology that a wireless service provider ... must use in order to enter or serve a particular market.” Id. at *3. We do not accept Aubrey’s general conclusion. Shroyer can succeed on his breach of contract claim if he can show that New Cingular did not perform their promises, regardless of the relative adequacy of various technologies. . His misrepresentation claim also is not preempted, but as we will explain, there are other deficiencies that support its dismissal. . It appears, by statements made in the dismissal order, that the district court considered materials outside of the pleadings, such as the Shroyer/AT &" }, { "docid": "23463737", "title": "", "text": "to dismiss, a complaint must contain sufficient factual matter to state a facially plausible claim to relief. Ashcroft v. Iqbal, - U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). A. Breach of Contract Shroyer sufficiently states a claim that New Cingular breached its contract with him. He alleges that his service degraded after the merger, in violation of AT & T’s promise in the contract. He also alleges that, by requiring Shroyer to sign up for a different contract with the merged company and pay additional expenses in order to maintain the former quality of service, New Cingular required additional consideration from Shroyer before it would perform its preexisting contractual duty. Finally, he alleges that this conduct was in violation of the implied covenant of good faith and fair dealing. The first amended complaint does not point to the specific provisions in the AT & T contract that Shroyer alleges were violated, but he directed the district court to them in his opposition to the motion to dismiss and he asked for the opportunity to add the provisions to the complaint if necessary. Those provisions are: “Service rates and other charges and conditions for each Number or Device are described in your Sales Information”; and “Service is normally available to your Device when it is within the operating range of our system.” The contract also provided that “[s]ervice may be ... temporarily limited or interrupted due to system ... modifications,” and New Cingular argues that this provision defeats Shroyer’s breach of contract claim. New Cingular is wrong, at least from a Rule 12(b)(6) standpoint. Shroyer alleges that service was not “normally available” within the system’s range, and that this failure was neither temporary nor caused by the excepted conditions. Whether the service interruption provision in the contract covered the types of problems that Shroyer alleges is to be decided on summary judgment or beyond. Shroyer successfully stated a claim for breach of contract, and thus it was error to dismiss it. B. Fraud and Deceit Shroyer claims that New Cingular misrepresented: 1) to AT & T customers that" } ]

[ { "docid": "23554323", "title": "", "text": "to serve on an industry committee[.] 29 U.S.C. § 215(a)(3). The question raised here is of first impression in this Circuit: whether FLSA’s prohibition on terminating an employee who “has filed any complaint or instituted or caused to be instituted any proceeding” under or related to the FLSA protects an employee who has lodged a written internal complaint with his or her employer but has not filed a judicial or administrative complaint. Federal courts of appeals grappling with this issue have differed. To date, the Sixth, Eighth, Tenth, and Eleventh Circuits have held that an internal complaint to the employer may satisfy § 215(a)(3), see EEOC v. Romeo Community Schools, 976 F.2d 985, 989-90 (6th Cir.1992); EEOC v. White & Son Enterprises, 881 F.2d 1006, 1011 (11th Cir.1989); Love v. Re/Max of America, Inc., 738 F.2d 383, 387 (10th Cir.1984); Brennan v. Maxey’s Yamaha, Inc., 513 F.2d 179, 181 (8th Cir.1975), while the Second Circuit, as well as a previous panel of the Ninth Circuit, have held that a formal complaint to the government agency or a court is required. Lambert v. Genesee Hospital, 10 F.3d 46 (2d Cir.1993); see also Lambert v. Ackerly, 156 F.3d 1018 (9th Cir.1998); withdrawn and reh’g granted, 169 F.3d 666 (9th Cir.1999). This is indeed a close question, but we side with the Sixth, Eighth, Tenth, and Eleventh Circuits. In deciding that the FLSA’s protections against retaliation are triggered only by a formal filing with a court or agency, the Second Circuit concluded that § 215(a)(3) is unambiguous. See Genesee Hospital, 10 F.3d at 55. We do not agree. We read the phrase “has filed any complaint” as susceptible to differing interpretations. The word “complaint” itself is certainly ambiguous. Webster defines “complaint” as either “the act or action of expressing protest, censure, or resentment: expression of injustice ([for example] about poor housing)” or as a “formal allegation or charge against a party made or presented to the appropriate court or officer (as for a wrong done or a crime committed) and variously applied ... ” Webster’s Third New Int’l Dictionary 464 (1971). By failing" } ]

[ { "docid": "10671066", "title": "", "text": "discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee[.]'' 29 U.S.C. § 215(a)(3). In Ball v. Memphis Bar-B-Q Co., Inc., 228 F.3d 360 (4th Cir. 2000), the Fourth Circuit held that Section 15(a)(3) does not protect internal complaints. Id. at 364. This is the minority view. See note 8, infra. . Section 704(a) of Title VII provides, \"It shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). . Although its analysis was more nuanced with regard to the term \"inquiry,” the Nicolaou court did not view its holding to be in conflict with the Fourth Circuit’s decision in King. See Nicolaou, 402 F.3d at 330. . As it is not necessary for the disposition of this case, we decline to elaborate on the level of formality required for protection under Section 510. At the very least, the provision would protect information given in legal and administrative proceedings. . The First, Fifth, Sixth, Eighth, Ninth, Tenth, and Eleventh Circuits have held that internal complaints are protected under the FLSA. See Hagan v. Echostar Satellite, L.L.C., 529 F.3d 617, 626 (5th Cir.2008); Lambert v. Ackerley, 180 F.3d 997, 1004 (9th Cir.1999) (en banc); Valerio v. Putnam Assocs. Inc., 173 F.3d 35, 41 (1st Cir.1999); E.E.O.C. v. Romeo Cmty. Sch., 976 F.2d 985, 989 (6th Cir.1992); E. E.O.C. v. White & Son Enters., 881 F.2d 1006, 1011 (11th Cir.1989); Love v. RE/MAX of Am., Inc., 738 F.2d 383, 387 (10th Cir. 1984); Brennan v. Maxey’s Yamaha, Inc., 513 F.2d 179, 181 (8th Cir. 1975). The Second and" }, { "docid": "593113", "title": "", "text": "with Clinton, the head of human resources at AIUO, qualified as a protected activity under the FLSA. The FLSA protects workers from retaliation on the basis of filing a complaint, instituting a proceeding, or testifying in a proceeding regarding a complaint made under the Act. 29 U.S.C. § 215(a)(3). AIUO argues that internal verbal complaints, such as plaintiffs’ complaints to Clinton, are not protected by the FLSA. In so arguing, AIUO relies on Lambert v. Genesee Hosp., 10 F.3d 46, 55 (2d Cir.1993), in which the Second Circuit held that the plain language of the FLSA retaliation provision “limits the cause of action to retaliation for filing formal complaints, instituting a proceeding, or testifying, but does not encompass complaints made to human resources representatives.” Lambert, however, represents the minority view of the breadth of coverage of § 215(a)(3). Though the Seventh Circuit has so far declined to rule on this exact issue, the First, Third, Sixth, Eleventh, Ninth, and Tenth Circuits, and several judges in this District, have all found that an oral, internal complaint triggers anti-retaliation protection under the FLSA. Lambert v. Ackerley, 180 F.3d 997, 1002-08 (9th Cir.1999) (en banc); Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1394 (10th Cir.1997); Valerio v. Putnam Assoc. Inc., 173 F.3d 35, 41 (1st Cir.1999); EEOC v. Romeo Community Schools, 976 F.2d 985, 989-90 (6th Cir.1992); EEOC v. White & Son Enterprises, 881 F.2d 1006, 1011-12 (11th Cir.1989); Brock v. Richardson, 812 F.2d 121, 124-25 (3d Cir.1987); Brennan v. Maxey’s Yamaha, Inc., 513 F.2d 179, 181 (8th Cir.1975); Chisholm v. Foothill Capital Corp., 940 F.Supp. 1273, 1283 (N.D.Ill.1996); DeGrange v. Richard Wolf Medical Instruments Corp., No. 99 C 3614, 2000 WL 1368043, *2 (N.D.Ill. Sept. 15, 2000). The Court agrees with the reasoning of the overwhelming majority view, which is based on the broad, remedial purposes of the FLSA. See generally Tennessee Coal. Iron, and R. Co. v. Muscoda Local No. 128, 321 U.S. 590, 597, 64 S.Ct. 698, 88 L.Ed. 949 (1944). Plaintiffs’ complaints to the head of human resources constituted protected activity under the FLSA. AIUO argues that even" }, { "docid": "23511964", "title": "", "text": "see also, e.g., Lambert v. Ackerley, 180 F.3d 997, 1003-05 (9th Cir.1999) (en banc); Valerio v. Putnam Assocs., Inc., 173 F.3d 35, 44-45 (1st Cir.1999); EEOC v. Romeo Comty. Schs., 976 F.2d 985, 989-90 (6th Cir.1992); EEOC v. White & Son Enters., 881 F.2d 1006, 1011 (11th Cir.1989); Brock v. Richardson, 812 F.2d 121, 124-25 (3d Cir.1987); Love v. RE/MAX of Am., Inc., 738 F.2d 383, 387 (10th Cir.1984); Brennan v. Maxey’s Yamaha, Inc., 513 F.2d 179, 181 (8th Cir.1975). But see Lambert v. Genesee Hosp., 10 F.3d 46, 55 (2d Cir.1993) (requiring the filing of a formal complaint with a government agency). At the same time, however, not all “abstract grumblings” or vague expressions of discontent are actionable as complaints. Lambert, 180 F.3d at 1007 Hagan, 2007 WL 543441, at *4. The “informal complaint” interpretation is not the only one. For example, in Lambert v. Genesee Hospital, cited by the district court as contrary authority, the Second Circuit stated that “[t]he plain language of [Section 215(a)(3)] limits the cause of action to retaliation for filing formal complaints, instituting a proceeding, or testifying, but does not encompass complaints made to a supervisor.” Lambert, 10 F.3d at 55 (citing Romeo, 976 F.2d at 990 (Surheinrich, J., dissenting)). We do not read Section 215(a)(3) so narrowly as the Lambert court. Section 215(a)(3) speaks of an employee “fil[ing] any complaint,” and we cannot agree that the plain language is limited to filing a formal complaint. We adopt the majority rule, which allows an informal, internal complaint to constitute protected activity under Section 215(a)(3), because it better captures the anti-retaliation goals of that section. We also accept that there are necessary qualifications to the majority rule. For instance, as the district court also noted, “not all ‘abstract grumblings’ or vague expressions of discontent are actionable as complaints.” Hagan, 2007 WL 543441, at *4. Thus, although Section 215(a)(3) allows informal complaints to constitute protected activity, the only immediate effect here is that Hagan’s anti-retaliation claim is not automatically precluded because he did not file a formal complaint. We must still determine whether he actually filed" }, { "docid": "22088743", "title": "", "text": "dissenting) (noting that § 215(a)(3) on its face prohibits retaliation based on \"three expressly enumerated types of conduct,\" in contrast to the much broader retaliation protection afforded by Title VII). We note that a number of our sister circuits have held to the contrary. See Romeo Community Sch., 976 F.2d at 989-90 (holding that plaintiffs complaint that employer was \"breaking some sort of law\" by paying her lower wages was sufficient to constitute filing of Equal Pay Act action for purposes of § 215(a)(3)); EEOC v. White & Son Enters., 881 F.2d 1006, 1011 (11th Cir.1989) (noting that while complaints to supervisors were not acts \"explicitly listed in the FLSA's anti-retaliation provision,\" reading such acts to be within the provision is merited since it would further the remedial purpose of the FLSA); Love v. RE/MAX of Am., Inc., 738 F.2d 383, 387 (10th Cir.1984) (holding that § 215(a)(3) \"applies to the unofficial assertion of rights through complaints at work\"); see also Crowley v. Pace Suburban Bus Div., 938 F.2d 797, 798 n. 3 (7th Cir.1991) (noting that section 215(a)(3) has been \"construed broadly\"). Because we hold that the statute's language is plain and unambiguous, we need not defer to the EEOC's interpretation in its compliance manual that the EPA retaliation provisions should encompass informal workplace complaints. See Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 842, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984) (\"If the intent of Congress is clear, that is the end of the matter.\"). Plaintiffs allege not that they filed any complaint or charge prior to Dupre's promotion, but only that they complained to Timmel that Baker should receive the same salary that Dupre received as charge person of the printing area, since her responsibilities in the microfilm area were substantially equivalent. We also note that they merely complained that it was \"not fair\" that Baker did not receive charge-person pay for her duties, without stating that sex was the reason for the disparity. Under these circumstances, no cause of action for Equal Pay Act retaliation will lie. Our decision in Brock v. Casey" }, { "docid": "593114", "title": "", "text": "triggers anti-retaliation protection under the FLSA. Lambert v. Ackerley, 180 F.3d 997, 1002-08 (9th Cir.1999) (en banc); Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1394 (10th Cir.1997); Valerio v. Putnam Assoc. Inc., 173 F.3d 35, 41 (1st Cir.1999); EEOC v. Romeo Community Schools, 976 F.2d 985, 989-90 (6th Cir.1992); EEOC v. White & Son Enterprises, 881 F.2d 1006, 1011-12 (11th Cir.1989); Brock v. Richardson, 812 F.2d 121, 124-25 (3d Cir.1987); Brennan v. Maxey’s Yamaha, Inc., 513 F.2d 179, 181 (8th Cir.1975); Chisholm v. Foothill Capital Corp., 940 F.Supp. 1273, 1283 (N.D.Ill.1996); DeGrange v. Richard Wolf Medical Instruments Corp., No. 99 C 3614, 2000 WL 1368043, *2 (N.D.Ill. Sept. 15, 2000). The Court agrees with the reasoning of the overwhelming majority view, which is based on the broad, remedial purposes of the FLSA. See generally Tennessee Coal. Iron, and R. Co. v. Muscoda Local No. 128, 321 U.S. 590, 597, 64 S.Ct. 698, 88 L.Ed. 949 (1944). Plaintiffs’ complaints to the head of human resources constituted protected activity under the FLSA. AIUO argues that even if plaintiffs’ activities were protected, they fail to present direct evidence of retaliation and therefore must proceed under the McDonnell Douglas burden-shifting method. AIUO’s argument represents a misunderstanding of the requirements of the direct method of proof. The direct method of proof permits a plaintiff to show, “by way of direct or circumstantial evidence,” that her termination was motivated by an impermissible purpose. Rhodes v. Ill. Dept. of Transportation, 359 F.3d 498, 504 (7th Cir.2004) (emphasis added). Plaintiffs have presented the Court with both direct and circumstantial evidence of retaliatory discharge. This direct evidence includes deposition testimony from a fellow admissions advisor that Savasta told her he fired Skelton for complaining to human resources, and that she would suffer the same fate if she complained, Harrison Dep. at 240, and testimony from Van-der Vennet that Savasta threatened to fire him if he complained “behind his back again” to human resources. Vander Ven-net Dep. at 16. Plaintiffs also present circumstantial evidence of retaliatory discharge. The Seventh Circuit has identified three types of circumstantial evidence. See Troupe" }, { "docid": "15850934", "title": "", "text": "should narrowly construe the EPA’s anti-retaliation provision. See Ball v. Memphis Bar-B-Q Co., 228 F.3d 360, 363-65 (4th Cir.2000) (holding that the FLSA’s language did not protect a plaintiff who told his employer that he might testify if a co-worker brought an employment discrimination lawsuit because the Act protects the act of giving testimony, not merely voicing opposition to an em ployer); Lambert v. Genesee Hosp., 10 F.3d 46, 55 (2d Cir.1993) (comparing the FLSA’s restrictive language to Title VII’s inclusive language and concluding that voicing complaints to supervisors is not a protected activity under the FLSA). A majority of circuits, on the other hand, have broadly interpreted the provision, finding that the EPA protects informal charges. See e.g., Valerio v. Putnam, Assoc. Inc., 173 F.3d 35 (1st Cir.1999) (expressing concern that a “narrow construction of the anti-retaliation provision could create an atmosphere of intimidation,” thereby defeating the FLSA’s purpose in protecting employees’ attempts to secure their rights, but noting that the provision does not protect “all abstract grumblings” or even all written complaints); Brock v. Richardson, 812 F.2d 121 (3d Cir.1987) (stating that the FLSA’s anti-retaliation provision necessarily protects informal complaints because the purpose of the Act is to “prevent employees’ ‘fear of economic retaliation’ for voicing grievances”); EEOC v. Romeo Cmty. Schools, 976 F.2d 985 (6th Cir.1992) (recognizing a protected activity in the plaintiffs assertion to her employer that it was “breaking some sort of law” by paying her lower wages than men); Brennan v. Maxey’s Yamaha, Inc., 513 F.2d 179 (8th Cir.1975) (concluding that because the act “prohibits discrimination against an employee who asserts or threatens to assert his or her FLSA rights,” an employee’s termination violated the FLSA where it followed her complaint, that her. rights under the FLSA were being violated); Lambert v. Ackerley, 180 F.3d 997 (9th Cir.1999) (stating that to “ensure that employees are not compelled to risk their jobs in order to assert their rights under the Act ... it must protect employees who complain about violations to their employers, as well as employees who turn to the Labor Department or the" }, { "docid": "302846", "title": "", "text": "FLSA and Title VII. It found Title VU’s provision to be broader than that of the FLSA because Title VII made it unlawful “for an employer to discriminate against any of his employees ... became he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). The phrase “opposed any practice” encompasses an individual’s complaints to supervisors regardless of whether she also files an EEOC charge. Kotcher v. Rosa & Sullivan Appliance Ctr., Inc., 957 F.2d 59, 65 (2d Cir.1992). Lambert, 10 F.3d at 55 (emphasis added). As noted supra, however, the anti-retaliation provision of the FLSA refers only to certain types of formal activities and does not contain a comparable “opposition” clause. The Lambert court found that “[t]he plain language of [§ 15(a)(3)] limits the cause of action to retaliation for filing formal complaints, instituting a proceeding, or testifying, but does not encompass complaints made to a supervisor.” Lambert, 10 F.3d at 55. To defendant’s credit, its supporting memorandum of law recognizes that the other circuits that have decided the issue have held that § 15(a)(3) does protect just the type of conduct alleged in this case. See, e.g., EEOC v. Romeo Community Sch., 976 F.2d 985, 989-90 (6th Cir.1992) (finding that employee’s assertion of statutory rights — telling employer that it was “breaking some sort of law” by paying lower wages — was triggering factor in § 15(a)(3) claim); EEOC v. White & Son Enterprises, 881 F.2d 1006, 1011 (11th Cir.1989) (“[T]he unofficial complaints expressed by the women to their employer about unequal pay constitute an assertion of rights protected under the [FLSA].”); Love v. RE/MAX of Am., Inc., 738 F.2d 383, 387 (10th Cir.1984) (“The [FLSA] also applies to the unofficial assertion of rights through complaints at work ”). In addition, defendant notes that in one case in this district the court found that an employee’s informal complaint at a staff meeting about the lack of compensation for" }, { "docid": "6818510", "title": "", "text": "v. Goodyear Tire & Rubber Co., 278 F.2d 562 (8th Cir.1960); Goldberg v. Boma Mfg. Corp., 302 F.2d 152 (5th Cir. 1962) (record revealed that, despite the fact that employee could have been terminated for \"half a dozen” other reasons, she was in fact only fired for asserting FLSA rights); see also Hageman v. Park West Gardens, 480 N.W.2d 223, 231, 30 Wage & Hour Cas. (BNA) 1198, 120 Lab.Cas. p. 35,589 (N.D.1992) citing Mitchell and Goodyear. . Because we affirm the District Court's finding of no retaliation, we do not need to decide whether or not Knickerbocker's informal complaints and advice to fellow officers were protected conduct under the FLSA. See Lambert v. Genesee Hosp., 10 F.3d 46 (2d Cir.1993) (informal complaints to supervisors are not protected conduct), cert. denied, - U.S. -, 114 S.Ct. 1612, 128 L.Ed.2d 339 (1994); contra EEOC v. Romeo Community Sch., 976 F.2d 985, 990 (6th Cir.1992); Brennan v. Maxey’s Yamaha, Inc., 513 F.2d 179 (8th Cir.1975); Love v. RE/MAX of Am. Inc., 738 F.2d, 383, 387 (10th Cir.1984); EEOC v. White & Son Enters, 881 F.2d 1006, 1011 (11th Cir.1989); see also Brock v. Richardson, 812 F.2d 121, 124 (3rd Cir.1987) (noting that courts have applied § 215 to activities not explicitly covered by language of the statute); Crowley v. Pace Suburban Bus. Div., 938 F.2d 797, 798 n. 3 (7th Cir.1991) (noting that § 215 has been construed broadly)." }, { "docid": "22088742", "title": "", "text": "§ 2000e-3(a). The phrase \"opposed any practice\" encompasses an individual's complaints to supervisors regardless of whether she also files an EEOC charge. Kotcher v. Rosa & Sullivan Appliance Ctr., Inc., 957 F.2d 59, 65 (2d Cir.1992). In contrast, FLSA's anti-retaliation provision makes it unlawful \"to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.\" 29 U.S.C. § 215(a)(3). The EPA is an amendment to the FLSA and is codified under the same chapter; thus retaliation for filing EPA complaints falls under § 215(a)(3). The plain language of this provision limits the cause of action to retaliation for filing formal complaints, instituting a proceeding, or testifying, but does not encompass complaints made to a supervisor. See EEOC v. Romeo Community Sch., 976 F.2d 985, 990 (6th Cir.1992) (Surheinrich, J., dissenting) (noting that § 215(a)(3) on its face prohibits retaliation based on \"three expressly enumerated types of conduct,\" in contrast to the much broader retaliation protection afforded by Title VII). We note that a number of our sister circuits have held to the contrary. See Romeo Community Sch., 976 F.2d at 989-90 (holding that plaintiffs complaint that employer was \"breaking some sort of law\" by paying her lower wages was sufficient to constitute filing of Equal Pay Act action for purposes of § 215(a)(3)); EEOC v. White & Son Enters., 881 F.2d 1006, 1011 (11th Cir.1989) (noting that while complaints to supervisors were not acts \"explicitly listed in the FLSA's anti-retaliation provision,\" reading such acts to be within the provision is merited since it would further the remedial purpose of the FLSA); Love v. RE/MAX of Am., Inc., 738 F.2d 383, 387 (10th Cir.1984) (holding that § 215(a)(3) \"applies to the unofficial assertion of rights through complaints at work\"); see also Crowley v. Pace Suburban Bus Div., 938 F.2d 797, 798 n. 3 (7th Cir.1991)" }, { "docid": "8171485", "title": "", "text": "hand, comports with the statute’s objectives as described by Congress’s findings and the Supreme Court’s interpretation of those findings. Amici offer several persuasive policy arguments in support of this conclusion. They point out that protection of internal complaints encourages resolution of FLSA violations without resort to drawn-out litigation — and that failure to protect internal complaints may have the perverse result of encouraging employers to fire employees who believe they have been treated illegally before they file a formal complaint. Our sister circuits have voiced the same concerns in concluding that § 215(a)(3) protects intracompany complaints. See Valerio v. Putnam Assocs., Inc., 173 F.3d 35, 43 (1st Cir.1999) (“By protecting only those employees who kept secret their belief that they were being illegally treated until they filed a legal proceeding, the Act would discourage prior discussion of the matter between employee and employer, and would have the bizarre effect both of discouraging early settlement and creating an incentive for the employer to fire an employee as soon as possible after learning the employee believed he was being treated illegally.”). Indeed, the majority of circuits to consider the question of whether intracompany complaints are protected activity within the meaning of “filed any complaint” have answered in the affirmative, basing their decisions on the FLSA’s remedial purpose. See, e.g., Hagan v. Echostar Satellite, LLC, 529 F.3d 617, 626 (5th Cir.2008) (“We adopt the majority rule, which allows an informal, internal complaint to constitute protected activity under Section 215(a)(3), because it better captures the anti-retaliation goals of that section.”); Lambert v. Ackerley, 180 F.3d 997, 1004 (9th Cir.1999) (en banc) (finding that § 215(a)(3) covered internal complaints based on its remedial purpose); Valerio, 173 at 42 (same); EEOC v. White & Son Enters., 881 F.2d 1006, 1011 (11th Cir.1989) (same); Love v. RE/MAX of Am., Inc., 738 F.2d 383, 387 (10th Cir.1984) (same); Brennan v. Maxey’s Yamaha, Inc., 513 F.2d 179, 181 (8th Cir.1975) (same); see also EEOC v. Romeo Cmty. Sch., 976 F.2d 985, 989 (6th Cir.1992) (holding that an employee’s complaints to her employer were sufficient to trigger protection of the" }, { "docid": "17063550", "title": "", "text": "Schnuck Markets, Inc., 121 F.3d 1390, 1394 (10th Cir.1997); EEOC v. White & Son Enterprises, 881 F.2d 1006, 1011-12 (11th Cir.1989); see also Valerio v. Putnam Assocs. Inc., 173 F.3d 35, 40-43 (1st Cir.1999) (holding that section 15(a)(3) protects an employee who has “lodged a written internal complaint with his or her employer but has not filed a judicial or administrative complaint”). Only the Second Circuit has held otherwise. See Lambert v. Genesee Hosp., 10 F.3d 46, 54-56 (2d Cir.1993) (holding that “[t]he plain language of [section 15(a)(3) ] limits the cause of action to retaliation for filing formal complaints, instituting a proceeding, or testifying, but does not encompass complaints made to a supervisor”). This court follows the majority view. Courts have observed that the language of section 15(a)(3), prohibiting discrimination against any employee who has “filed any complaint ... under or related to this chapter,” plausibly extends to complaints “filed” with employers. See Lambert, 180 F.3d at 1004; Valerio, 173 F.3d at 40-42. The Supreme Court has stated that the provisions of the FLSA are “remedial and humanitarian in purpose” and “must not be interpreted or applied in a narrow, grudging mannér.” Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 597, 64 S.Ct. 698, 88 L.Ed. 949 (1944). To exclude employees’ internal complaints of FLSA violations from the protection of section 15(a)(3) would discourage employees from attempting private conciliation with their employers. See Valerio, 173 F.3d at 43. Under such an interpretation, employees would have to initiate judicial or administrative action before even talking to their employers in order to gain protection from reprisal. In this case, Truex complained about overtime pay to his supervisor on several occasions, specifically claiming at least twice that the Chronicle’s failure to pay him overtime was against the law. Truex informally presented his grievance to the Department of Labor. The DOL representative suggested that Truex try again to resolve the matter without initiating formal proceedings and gave Truex printed copies of pertinent regulations to show his employer in an effort to resolve the dispute without formal proceedings." }, { "docid": "22290647", "title": "", "text": "this chapter” protects an employee who complains to his employer about violations of the Act. The district court, in denying the defendants’ motion for judgment as a matter of law, held that the statute extends protection to employees who make such complaints. The defendants contend, to the contrary, that the anti-retaliation provision protects only those employees who file formal proceedings with the Department of Labor or in a federal court. Our court has never before addressed this question, although we did reserve it in Knickerbocker v. City of Stockton, 81 F.3d 907, 912 n. 3 (9th Cir.1996). To date, however, seven other Circuits have reached the specific question raised here. The First, Third, Sixth, Eight, Tenth, and Eleventh circuits have all held that complaints similar to, and even far more “informal” than those lodged by the plaintiffs here entitle. the employee to coverage under the anti-retaliation provision of the FLSA. See Valerio v. Putnam Assocs. Inc., 173 F.3d 35 (1st Cir.1999); Brock v. Richardson, 812 F.2d 121, 124-25 (3d Cir.1987); EEOC v. Romeo Community Schools, 976 F.2d 985, 989 (6th Cir.1992); Brennan v. Maxey’s Yamaha, Inc., 513 F.2d 179, 181 (8th Cir.1975); Love v. RE/MAX of Am., Inc., 738 F.2d 383, 387 (10th Cir.1984); EEOC v. White & Son Enterprises, 881 F.2d 1006, 1011 (11th Cir.1989). The Second Circuit is the only circuit to reach the contrary conclusion, although it did so in a case in which the only complaint made was an oral complaint to a supervisor that a pay disparity was “not fair.” See Lambert v. Genesee Hosp., 10 F.3d 46, 55 (2d Cir.1993). Over fifty years ago, the Supreme Court determined the approach that must be followed in construing the provisions of the Fair Labor Standards Act. A number of the other circuits have explicitly followed .that approach. It is a simple one, often used in construing statutes designed to protect individual rights. In Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 597, 64 S.Ct. 698, 88 L.Ed. 949 (1944), the Court explained that because the FLSA is a remedial statute," }, { "docid": "17063548", "title": "", "text": "overtime pay for the two years before filing suit. See 28 U.S.C. § 255(a). Because this court previously granted plaintiff limited discovery under Rule 56(f) to permit him to respond to the threshold issue of the existence of a section 7 violation, plaintiff has not yet had an opportunity to take discovery on the willfulness issue. This court DENIES defendants’ motion as to willfulness, WITHOUT PREJUDICE. Defendants may submit a new motion for summary judgment on the willfulness issue after a reasonable opportunity for discovery on that issue. IV. Truex’s Retaliation Claim Truex asserts a claim under section 15(a)(3) of the FLSA, alleging that Cunningham removed him from the baseball beat in retaliation for his claim of entitlement to overtime pay. The narrow ground of the Chronicle’s motion for summary judgment on this claim is that Truex had not engaged in protected activity under section 15(a)(8) before the adverse employment decision he challenges. . Truex did not file a formal complaint initiating administrative or legal action. Instead, he complained to Cunningham that he was entitled to overtime and sought advice from the Department of Labor informally Section 15(a)(3) of the FLSA provides: [I]t shall be unlawful for any person ... to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.... Although the Fifth Circuit has not yet considered the question, several circuits have addressed whether an informal complaint of FLSA violations to a supervisor is activity protected from retaliation under section 15(a)(3). The Sixth, Eighth, Ninth, Tenth, and Eleventh Circuits have held that an oral, internal complaint is sufficient to trigger the protection of section 15(a)(3). See EEOC v. Romeo Community Schools, 976 F.2d 985, 989-90 (6th Cir.1992); Bren nan v. Maxey’s Yamaha, Inc., 513 F.2d 179, 181 (8th Cir.1975); Lambert v. Ackerley, 180 F.3d 997, 1002-08 (9th Cir.1999) (en banc); Conner v." }, { "docid": "10671067", "title": "", "text": "\"inquiry,” the Nicolaou court did not view its holding to be in conflict with the Fourth Circuit’s decision in King. See Nicolaou, 402 F.3d at 330. . As it is not necessary for the disposition of this case, we decline to elaborate on the level of formality required for protection under Section 510. At the very least, the provision would protect information given in legal and administrative proceedings. . The First, Fifth, Sixth, Eighth, Ninth, Tenth, and Eleventh Circuits have held that internal complaints are protected under the FLSA. See Hagan v. Echostar Satellite, L.L.C., 529 F.3d 617, 626 (5th Cir.2008); Lambert v. Ackerley, 180 F.3d 997, 1004 (9th Cir.1999) (en banc); Valerio v. Putnam Assocs. Inc., 173 F.3d 35, 41 (1st Cir.1999); E.E.O.C. v. Romeo Cmty. Sch., 976 F.2d 985, 989 (6th Cir.1992); E. E.O.C. v. White & Son Enters., 881 F.2d 1006, 1011 (11th Cir.1989); Love v. RE/MAX of Am., Inc., 738 F.2d 383, 387 (10th Cir. 1984); Brennan v. Maxey’s Yamaha, Inc., 513 F.2d 179, 181 (8th Cir. 1975). The Second and Fourth Circuits have held to the contrary. See Ball, 228 F.3d at 364; Lambert v. Genesee Hosp., 10 F.3d 46, 55 (2d Cir.1993). Finally, the Seventh Circuit has taken a middle approach. See Kasten v. Saint-Gobain Performance Plastics Corp., 570 F.3d 834, 838, 840 (7th Cir.2009) (holding that written, but not oral, internal complaints are protected based on the inclusion of the verb '‘filed”), cert. granted, - U.S. -, 130 S.Ct. 1890, 176 L.Ed.2d 361 (2010). We have cited the majority approach with approval in dicta. See Brock, 812 F.2d at 124. . In light of our disposition, we decline to address A.H. Cornell’s additional arguments that Edwards cannot maintain a claim against Cornell and Closterman because they \"merely served as the company’s agents,” (A.H. Cornell Br. at 7), and that, regardless of the outcome of this appeal, the allegations in Edwards’s complaint fail to satisfy the pleading requirements articulated by the Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). COWEN, Circuit Judge, dissenting. Unlike" }, { "docid": "8171486", "title": "", "text": "was being treated illegally.”). Indeed, the majority of circuits to consider the question of whether intracompany complaints are protected activity within the meaning of “filed any complaint” have answered in the affirmative, basing their decisions on the FLSA’s remedial purpose. See, e.g., Hagan v. Echostar Satellite, LLC, 529 F.3d 617, 626 (5th Cir.2008) (“We adopt the majority rule, which allows an informal, internal complaint to constitute protected activity under Section 215(a)(3), because it better captures the anti-retaliation goals of that section.”); Lambert v. Ackerley, 180 F.3d 997, 1004 (9th Cir.1999) (en banc) (finding that § 215(a)(3) covered internal complaints based on its remedial purpose); Valerio, 173 at 42 (same); EEOC v. White & Son Enters., 881 F.2d 1006, 1011 (11th Cir.1989) (same); Love v. RE/MAX of Am., Inc., 738 F.2d 383, 387 (10th Cir.1984) (same); Brennan v. Maxey’s Yamaha, Inc., 513 F.2d 179, 181 (8th Cir.1975) (same); see also EEOC v. Romeo Cmty. Sch., 976 F.2d 985, 989 (6th Cir.1992) (holding that an employee’s complaints to her employer were sufficient to trigger protection of the FLSA’s antiretaliation provision without explaining its rationale). Cf. Brock v. Richardson, 812 F.2d 121, 124-25 (3d Cir.1987) (holding that, because of the FLSA’s remedial purpose, a retaliatory firing based on an employer’s belief that an employee had filed a complaint— even when he had not — was prohibited by § 215(a)(3)). Thus, we adopt the majority view by holding that the remedial purpose of the FLSA requires intracompany complaints to be considered protected activity within the meaning of its antiretaliation provision. 2. Supporting our conclusion is the Secretary of Labor and the EEOC’s consistent position that intracompany complaints are included within the meaning of “filed any complaint.” We afford agency interpretations that do not have the force of law, like agency manuals and litigation documents, respect to the extent that they possess the “power to persuade.” Christensen v. Harris Cnty., 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944)). Factors we consider when determining whether an" }, { "docid": "17063549", "title": "", "text": "to overtime and sought advice from the Department of Labor informally Section 15(a)(3) of the FLSA provides: [I]t shall be unlawful for any person ... to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.... Although the Fifth Circuit has not yet considered the question, several circuits have addressed whether an informal complaint of FLSA violations to a supervisor is activity protected from retaliation under section 15(a)(3). The Sixth, Eighth, Ninth, Tenth, and Eleventh Circuits have held that an oral, internal complaint is sufficient to trigger the protection of section 15(a)(3). See EEOC v. Romeo Community Schools, 976 F.2d 985, 989-90 (6th Cir.1992); Bren nan v. Maxey’s Yamaha, Inc., 513 F.2d 179, 181 (8th Cir.1975); Lambert v. Ackerley, 180 F.3d 997, 1002-08 (9th Cir.1999) (en banc); Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1394 (10th Cir.1997); EEOC v. White & Son Enterprises, 881 F.2d 1006, 1011-12 (11th Cir.1989); see also Valerio v. Putnam Assocs. Inc., 173 F.3d 35, 40-43 (1st Cir.1999) (holding that section 15(a)(3) protects an employee who has “lodged a written internal complaint with his or her employer but has not filed a judicial or administrative complaint”). Only the Second Circuit has held otherwise. See Lambert v. Genesee Hosp., 10 F.3d 46, 54-56 (2d Cir.1993) (holding that “[t]he plain language of [section 15(a)(3) ] limits the cause of action to retaliation for filing formal complaints, instituting a proceeding, or testifying, but does not encompass complaints made to a supervisor”). This court follows the majority view. Courts have observed that the language of section 15(a)(3), prohibiting discrimination against any employee who has “filed any complaint ... under or related to this chapter,” plausibly extends to complaints “filed” with employers. See Lambert, 180 F.3d at 1004; Valerio, 173 F.3d at 40-42. The Supreme Court has stated that the provisions of the FLSA" }, { "docid": "13644456", "title": "", "text": "of America, Inc., 738 F.2d 383 (10th Cir.1984), the Court held that “[t]he Act also applies to the unofficial assertion rights through complaints at work.” Id. at 387. The Love Court held that it is the assertion of statutory rights which is the triggering factor, not the filing of a formal complaint. Id. This view is in accord with other circuits. See Brennan v. Maxey’s Yamaha, Inc., 513 F.2d 179, 181 (8th Cir.1975) (plaintiff asserted right at work and was fired immediately); E.E.O.C. v. White and Son Enterprises, 881 F.2d 1006, 1011 (11th Cir.1989) (even though the charging parties had not yet filed formal charges with the EEOC, the discharge can still be retaliatory in nature); Brock v. Richardson, 812 F.2d 121, 124-25 (3rd Cir.1987) (an informal complaint by an employee is sufficient to bring employee under Act; a formal filing is not necessary). Defendant concedes that before Ms. Gomes filed her charge, she had complained to the school district of unlawful sex discrimination and had told them she believed they were “breaking some sort of law” by paying her lower wages than previously paid to male temporary custodians. Because the adverse employment actions alleged by Ms. Gomes followed her pro tests, she has effectively set forth a claim of retaliation. Defendant urges this Court to find that even if Ms. Gomes states a claim of retaliation, the school district had legitimate reasons for no longer hiring her. The district court made no findings in this regard, and the case must be remanded for a determination on this issue. y. For the reasons stated above, we REVERSE the district court and REMAND the case for a trial on the merits consistent with this opinion. SUHRHEINRICH, Circuit Judge, concurring in part and dissenting in part. I concur with the majority in parts I, II, and III. As to part IV, however, I would affirm the grant of summary judgment on Gomes’s retaliation claim. 29 U.S.C. § 215(a)(3) does not. prohibit employers from taking adverse employment action, that is, retaliating, against employees generally. Rather, section 215(a)(3) protects from retaliation only those employees" }, { "docid": "22290692", "title": "", "text": "to a supervisor that an employee was being paid less than the complainants thought she should have been.” Id. at 56. The present case is much more closely analogous to Genesee than to Casey. Here, neither Lambert nor any of the other plaintiffs actually “filed” a formal complaint or instituted or testified in an FLSA proceeding. Rather, Lambert merely complained about overtime to her supervisor and to other Full House employees; called the DOL for information, and informed her superiors that she had done so; had her lawyers send a letter to Barry Ackerly regarding the overtime issue; and had a complaint delivered to the Sonics. Because such conduct is not encompassed by the plain and unambiguous language of § 215(a)(3), the plaintiffs have failed to state a retaliation claim under the FLSA. We recognize that several other circuits have come to the conclusion that informal complaints and requests for information from the DOL do constitute protected activities under § 215(a)(3). See E.E.O.C. v. Romeo Community Schools, 976 F.2d 985, 989 (6th Cir.1992) (holding that complaining to a school district of unlawful sex discrimination and expressing the belief that the law is being broken are sufficient to state a retaliation claim); E.E.O.C. v. White & Son Enterprises, 881 F.2d 1006, 1011 (11th Cir.1989) (holding that unofficial complaints to an employer about unequal pay constitute an assertion of rights protected under the statute); Brock v. Richardson, 812 F.2d 121, 124-25 (3d Cir.1987) (holding that retaliation based on employer’s mere belief that an employee filed a formal complaint is sufficient to bring employer’s conduct under the FLSA); Love v. RE/MAX of America, Inc., 738 F.2d 383, 387 (10th Cir.1984) (holding that it is the assertion of statutory rights, not the filing of a formal complaint, which triggers a retaliation claim); Crowley v. Pace Suburban Bus Div., 938 F.2d 797, 798 (7th Cir.1991) (broadly construing the statute to protect against retaliation for an employee’s assertion of rights under the FLSA); Brennan, 513 F.2d at 181. These circuits have reached this conclusion by extending the language of § 215(a)(3) beyond its plain meaning so" }, { "docid": "23511963", "title": "", "text": "capacity as a field service manager in behalf of the company to acting in an adversarial role against Echos-tar.” Id. Moreover, the district court noted that Hagan lacked a good faith belief that Echostar had violated the law in implementing the schedule change. Thus, the district court held, Hagan had failed to present any evidence that he had engaged in protected activity under Section 215(a)(3), and Echostar was entitled to judgment as a matter of law. We address each of the three rules relied upon by the district court: the “informal complaint” rule; the “stepping outside the role” rule; and the “good faith” rule. VI(A) The district court correctly noted the majority interpretation of Section 215(a)(3) is that even an informal, internal complaint may constitute protected activity: This Court has followed the majority position that an employee’s informal complaint to his employer may constitute protected activity under Section 215(a)(3). See Dearmon v. Tex. Migrant Council, Inc., 252 F.Supp.2d 367, 367-68 (S.D.Tex.2003) (Kazen, J.); Truex v. Hearst Commc’ns, Inc., 96 F.Supp.2d 652, 665-66 (S.D.Tex.2000) (Rosenthal, J.); see also, e.g., Lambert v. Ackerley, 180 F.3d 997, 1003-05 (9th Cir.1999) (en banc); Valerio v. Putnam Assocs., Inc., 173 F.3d 35, 44-45 (1st Cir.1999); EEOC v. Romeo Comty. Schs., 976 F.2d 985, 989-90 (6th Cir.1992); EEOC v. White & Son Enters., 881 F.2d 1006, 1011 (11th Cir.1989); Brock v. Richardson, 812 F.2d 121, 124-25 (3d Cir.1987); Love v. RE/MAX of Am., Inc., 738 F.2d 383, 387 (10th Cir.1984); Brennan v. Maxey’s Yamaha, Inc., 513 F.2d 179, 181 (8th Cir.1975). But see Lambert v. Genesee Hosp., 10 F.3d 46, 55 (2d Cir.1993) (requiring the filing of a formal complaint with a government agency). At the same time, however, not all “abstract grumblings” or vague expressions of discontent are actionable as complaints. Lambert, 180 F.3d at 1007 Hagan, 2007 WL 543441, at *4. The “informal complaint” interpretation is not the only one. For example, in Lambert v. Genesee Hospital, cited by the district court as contrary authority, the Second Circuit stated that “[t]he plain language of [Section 215(a)(3)] limits the cause of action to retaliation for" }, { "docid": "22290693", "title": "", "text": "complaining to a school district of unlawful sex discrimination and expressing the belief that the law is being broken are sufficient to state a retaliation claim); E.E.O.C. v. White & Son Enterprises, 881 F.2d 1006, 1011 (11th Cir.1989) (holding that unofficial complaints to an employer about unequal pay constitute an assertion of rights protected under the statute); Brock v. Richardson, 812 F.2d 121, 124-25 (3d Cir.1987) (holding that retaliation based on employer’s mere belief that an employee filed a formal complaint is sufficient to bring employer’s conduct under the FLSA); Love v. RE/MAX of America, Inc., 738 F.2d 383, 387 (10th Cir.1984) (holding that it is the assertion of statutory rights, not the filing of a formal complaint, which triggers a retaliation claim); Crowley v. Pace Suburban Bus Div., 938 F.2d 797, 798 (7th Cir.1991) (broadly construing the statute to protect against retaliation for an employee’s assertion of rights under the FLSA); Brennan, 513 F.2d at 181. These circuits have reached this conclusion by extending the language of § 215(a)(3) beyond its plain meaning so as to “effectuate the broad remedial purposes of the FLSA.” We [should], however, reject this approach in light of the clear language of the statute. B. Washington Law Covers Informal Overtime Complaints Regardless of their failure to state a valid retaliation claim under federal law, the plaintiffs have asserted in their complaint state law claims for violation of public policy. Washington law prohibits retaliation against an employee who “has made any complaint to [her] employer” or who “has caused to be instituted or is about to cause to be instituted any proceeding under or related to the [Washington wage and overtime laws].” Wash. Rev.Code § 49.46.100(2) (emphasis added).[ ] Since there is no dispute that Lambert complained to her superiors about the lack of overtime pay, and threatened on several occasions to file suit, Lambert has stated a valid retaliation claim under Washington law. C. All of the Plaintiffs Have Stated a Valid Cause of Action Under Washington Law Defendants argue that because all of the plaintiffs other than Lambert predicate their retaliation claims on" } ]

[ { "docid": "23120449", "title": "", "text": "U.S. at 467, 103 S.Ct. 1952. Finally, it distinguishes the case from American Hospital, in which the Court construed the statute to require individualized determinations only in narrow circumstances, and in which the regulations governed “certain issues of general applicability” that did not contradict the statutory command. Am. Hosp., 499 U.S. at 611-12, 111 S.Ct. 1539. By fusing the entire placement analysis with respect to CCCs into a single category grounded on the length of an inmate’s remaining sentence, the February 2005 Rule eliminated from consideration each of the statutory factors that turn, instead, on the inmate’s specific history. Accordingly, and like our sister circuits, we find that 28 C.F.R. § 570.21 is an improper exercise of the BOP’s rulemaking authority. Section 3621(b) establishes clear parameters for the BOP’s exercise of discretion in making prison placements and transfers. By sorting prisoners’ eligibility for one of the institutions on the “available penal or correctional facility” list only according to the portion of time served, the BOP has unlawfully excised these parameters from the statute. CONCLUSION We hold that in transferring an inmate to a CCC or any “available penal or correctional facility,” the BOP must consider the factors set forth in § 3621(b), without reference to 28 C.F.R. § 570.21. For the foregoing reasons, the dismissal of Levine’s habeas challenge to the December 2002 Policy is AFFIRMED. The dismissal of Levine’s habeas challenge to the February 2005 Rule is VACATED and REMANDED for further proceedings not inconsistent with this opinion. . Our court did not consider the December 2002 Policy before its repeal. We have, however, acknowledged the \"firestorm” of legal challenges triggered by the policy and we reported one district court's observation that a sizeable majority of district courts in our circuit had found the policy invalid. See United States v. Arthur, 367 F.3d 119, 121 (2d Cir.2004) (declining to consider the merits of a petitioner's challenge to the December 2002 Policy, because the petitioner had not yet surrendered to the BOP, which meant that the agency was not properly before the court). . The government has not challenged the" } ]

[ { "docid": "22397664", "title": "", "text": "persuasively articulated in Lesnick v. Menifee, 2005 WL 2542908, at *4, 2005 U.S.Dist.LEXIS 23183 Congress “expressed] an intent regarding the process by which the BOP should designate inmates to CCCs.” Id., 2005 WL 2542908, at *4, 2005 U.S.Dist.LEXIS 23183, at *11 (emphasis added) (citing Goldings, 383 F.3d at 28). The congressional intent here is clear: determinations regarding the placement scheme — including where a prisoner is held, and when transfer is appropriate — must take into consideration individualized circumstances. The statute requires an individualized process that cannot possibly occur under the dissent’s narrow interpretation. The dissent falls back on the language of § 3624(c) and argues that when the lesser of six months or ten percent of an inmate’s sentence remains, and only then, the BOP must consider the § 3621(b) factors. However, § 3624 does not determine when the BOP should consider CCC placement, but when it must provide it. The clear language of § 3624(c) mandates that the BOP “shall” assure that a prisoner is given appropriate pre-release conditions that are focused on re-entry, if “practicable.” The statute requires the BOP not just to consider, but to actually place an inmate in a CCC or like facility, during the last ten percent or six months of the sentence, when that is possible. Under the dissent’s rationale, the temporal references in § 3624(c), which were meant to create an obligation regarding CCC placement, swallow the central provisions of § 3621(b). These § 3621(b) provisions were meant to guide the transfer scheme more generally. In short, we conclude that the § 3621(b) factors apply to BOP determinations re garding whether or not initial placements or transfers are appropriate. We thus do not find that the factors are limited by the temporal references in § 3624. V. Woodall’s Remedy We have held that the BOP may transfer an inmate to a CCC or like facility prior to the last six months or ten percent of his sentence. In exercising its discretion in this matter, the BOP must consider the factors set forth in § 3621(b). However, that the BOP may assign" }, { "docid": "19926057", "title": "", "text": "provision in Lopez, we reject Respondent’s contention that Lopez validates the BOP’s categorical rule in 28 C.F.R. § 570.21. Respondent lastly claims the BOP’s categorical rule is permissible because the BOP considered the five factors enumerated in § 3621(b)(1 )-(5) when promulgating the regulations. This argument, like Respondent’s others, must fail. The statutory language in § 3621(b) clearly indicates the five enumerated factors are to be applied to individual inmates. See 18 U.S.C. § 3621(b) (“The Bureau of Prisons shall designate the place of the prisoner’s imprisonment. The Bureau may designate any available penal or correctional facility ... considering [the five enumerated factors].” (emphasis added)). The BOP cannot validate this otherwise invalid regulation by claiming to have categorically considered the five statutory factors during the rulemaking process. The individualized nature of three of the five factors — the nature of the prisoner’s offense, the prisoner’s history and characteristics, and the sentencing judge’s statement— made such consideration impossible. See Fults, 442 F.3d at 1092. IY. WEDELSTEDT’S REMEDY This court’s determination that the BOP regulations are invalid entitles Wedelstedt to be considered for transfer to a CCC prior to the last ten percent of his sentence. In determining whether Wedel-stedt should be transferred, the BOP must consider the factors set forth in 18 U.S.C. § 3621(b) without regard to the invalid regulations. This court, however, takes no position on whether Wedelstedt should be transferred and, as Wedelstedt himself acknowledges, he has no entitlement to such a transfer. The record on appeal does not indicate whether the sentencing court made any statements recommending that Wedelstedt serve part of his sentence in a CCC, nor is it appropriate for this court to consider the arguments made in the parties’ briefs about Wedelstedt’s character. Y. CONCLUSION For the foregoing reasons, this court affirms the district court’s grant of Wedel-stedt’s habeas writ and affirms the district court’s order that the BOP immediately consider whether Wedelstedt should be transferred to a CCC without regard to 28 C.F.R. §§ 570.20 and 570.21. The mandate shall issue forthwith. . The Second, Third, and Eighth Circuits are the only circuit" }, { "docid": "19926051", "title": "", "text": "in a CCC or other form of community confinement as the inmate’s release date nears, § 3624(c) has no bearing on whether a CCC may be considered as a place of imprisonment at some earlier point in a prisoner’s period of incarceration. See Prows, 981 F.2d at 469 (interpreting § 3624(c) as imposing a mandatory obligation on the BOP to facilitate a prisoner’s pre-release transition, but explicitly stating § 3624(c) does not affect the agency’s discretion in determining an individual prisoner’s place of imprisonment prior to the pre-release period); accord Woodall, 432 F.3d at 250 (“[Section] 3624[ (c)] does not determine when the BOP should consider CCC placement, but when it must provide it.”); Elwood, 386 F.3d at 847 (“Under § 3621(b), the BOP may place a prisoner in a CCC for six months, or more. Under § 3624(c) the BOP must formulate a plan of pre-release conditions.” (emphasis added)); Goldings v. Winn, 383 F.3d 17, 26 (1st Cir.2004) (same). In this court’s view, § 3624(c) has no bearing on whether §§ 570.20 and 570.21 are consistent with the § 3621(b) statutory scheme for BOP placement and transfer determinations. Section 3621(b) articulates clear and unambiguous congressional intent that all placement and transfer determinations be carried out with reference to each of the five factors enumerated in § 3621(b)(1)-(5). In promulgating regulations pursu ant to this statute, the BOP must not contradict Congress’ clear intent. Chevron, 467 U.S. at 843 n. 9, 104 S.Ct. 2778 (“The judiciary ... must reject administrative constructions which are contrary to clear congressional intent.”). Accordingly, if 28 C.F.R. §§ 570.20 and 570.21 are inconsistent with § 3621(b), this court must determine them to be invalid. C. Relationship Between 18 U.S.C. § 3621(b) and 28 C.F.R. §§ 570.20 and 570.21 Section 570.20(a), the policy statement explaining the BOP’s ten-percent rule, defines the rule as a “categorical exercise of discretion for designating inmates to community confinement.” 28 C.F.R. § 570.20(a). Section 570.21(a) then provides that the BOP “will designate inmates to community confinement only as part of pre-release custody and programming” and only “during the last ten percent" }, { "docid": "19926044", "title": "", "text": "Woodall, 432 F.3d at 249. Each court interpreted § 3621(b) to clearly and unambiguously require the BOP to consider the five factors set out in § 3621(b)(l)-(5) when making placement and transfer decisions, and interpreted the CCC placement restrictions in § 570.21 as preventing the BOP from fully considering each of these factors. Levine, 455 F.3d at 87 (“Section 3621(b) establishes clear parameters for the BOP’s exercise of discretion in making prison placements and transfers. By sorting prisoners’ eligibility for [CCCs] only according to the portion of time served, the BOP has unlawfully excised these parameters from the statute.”); Fults, 442 F.3d at 1092 (“[T]he BOP’s regulation necessarily conflicts with § 3621(b) by excluding an entire class of inmates — those not serving the final ten percent of their sentences — from the opportunity to be transferred to a CCC.”); Woodall, 432 F.3d at 249 (“[W]e are faced with a statute providing that the BOP must consider several factors in CCC placement, and a regulation providing that the agency may not consider those factors in full. The conflict between the regulations and the statute seems unavoidable.”). Under Chevron, U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), these courts ruled the regulations were invalid. Because each court determined § 3621(b) includes a clear assertion of congressional intent, each rejected the BOP’s argument that, under Lopez, 531 U.S. at 242, 121 S.Ct. 714, the promulgation of §§ 570.20 and 570.21 was a permissible exercise of the BOP’s categorical rulemak-ing authority. Levine, 455 F.3d at 85; Fults, 442 F.3d at 1091; Woodall, 432 F.3d at 246-47. 2. The District Court Decision The district court was guided by the reasoning of Levine, Fults, and Woodall in invalidating the BOP’s categorical refusal to consider placing an inmate in a CCC until the last ten percent of his sentence. Wedelstedt, 2006 WL 2475268, at *4. The court recognized the regulations were enforced in two other district court decisions from the District of Colorado. Id. at *3 (citing Montoya v. Rios, No. 05-cv-00606, 2005 WL 3271489 (D.Colo. Nov." }, { "docid": "16584683", "title": "", "text": "to the unambig uously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778 (footnotes omitted). As noted above, the BOP’s interpretation of section 3621(b) is contrary to the plain language of section 3621(b), ie., that the agency consider the enumerated factors before making placement and transfer determinations. The BOP regulation, which provides that the agency may not consider those factors in full, fails to give effect to the “unambiguously expressed intent of Congress,” id. at 843, 104 S.Ct. 2778, and thus is not entitled to deference under Chevron. See Woodall, 432 F.3d at 249. E. Remedy Evans has asked the court to order the BOP to consider her for CCC placement immediately. Although section 3621(b) does not set forth requirements concerning when the BOP must consider transfers, prior to the implementation of the 2002 policy and 2005 rule, inmates were referred to CCC’s for up to 180 days before release from custody. Program Statement 7310.01 at 8 (Dec. 16, 1998), Ex. A to Decl. of Patrick W. Ward (doc. # 12), available at http://www.bop.gov/policy/in-dex.jsp. When considering the remedy available for an inmate challenging the 2005 rule, courts have ordered the BOP to immediately consider the inmate for transfer to a CCC in good faith and without reference to the 2002 and 2005 policies. See, e.g., Woodall, 432 F.3d at 251; Baker, 2005 WL 2276040 at *7. Although the BOP is not required to consider an inmate transfer at any particular time — other than its duty to provide appropriate pre-release conditions pursuant to section 3624(c) — it may not rely on its invalid regulations for guidance. Accordingly, I hereby order the Respondent to consider Evans’ request" }, { "docid": "7869145", "title": "", "text": "as was the case in Lopez, where the only factor at issue was use of a firearm during the crime of conviction. “Moreover, Congress did appear to express intent to withhold from the BOP the authority to make CCC placements without the guidance of the statutory factors.”) (emphasis in the original). Like the majority of our sister circuits that have considered this argument, we are not persuaded that Lopez supports the BOP’s categorical exercise of discretion when administering § 3621(b). Finally, we are not convinced that reference to some of the factors in the BOP regulations translates into compliance with the statutory command contained in § 3621(b). See Muniz, 517 F.3d at 39. As the Tenth Circuit astutely remarked: The BOP cannot validate this otherwise invalid regulation by claiming to have categorically considered the five statutory factors during the rulemaking process. The individualized nature of three of the five factors — the nature of the prisoner’s offense, the prisoner’s history and characteristics, and the sentencing judge’s statement — made such consideration impossible. Wedelstedt, 477 F.3d at 1168 (citing Fults, 442 F.3d at 1092); see also Woodall, 432 F.3d at 248. IV. CONCLUSION The BOP’s regulations conflict with the plain language of 18 U.S.C. § 3621(b) as to when an inmate may be considered for initial placement in or transfer to an RRC. We therefore AFFIRM the district court’s order granting the writ of habeas corpus ordering the BOP to promptly consider Rodriguez for transfer to an RRC without reference to 28 C.F.R. §§ 570.20 and 570.21. AFFIRMED. . Although the parties both agree that RRCs were formally referred to as Community Correction Centers (CCCs) and are commonly known as \"halfway houses,” Smith refers to them as RRCs and Rodriguez uses the term CCC. This opinion will use the term RRC throughout. . Section 3621(b) provides: § 3621 Imprisonment of a convicted person (b) Place of imprisonment. — The Bureau of Prisons shall designate the place of the prisoner’s imprisonment. The Bureau may designate any available penal or correctional facility that meets minimum standards of health and habitability established by the" }, { "docid": "19926043", "title": "", "text": "BOP’s regulations impermissibly restrict the discretion Congress gave the BOP in 18 U.S.C. § 3621(b) to consider transferring him to a CCC prior to the last ten percent of his sentence. Respondent asserted the regulations are valid as a permissible exercise of the BOP’s discretion under § 3621(b) and § 3624(c). The district court granted the writ and Respondent appealed, again asserting the validity of the BOP regulations. C. Other Circuits’ Precedent and the District Court’s Decision 1. Second, Third, and Eighth Circuit Decisions The district court relied heavily in its decision to grant Wedelstedt’s habeas petition on decisions from the Second, Third, and Eighth Circuits. Levine v. Apker, 455 F.3d 71 (2d Cir.2006); Fults v. Sanders, 442 F.3d 1088 (8th Cir.2006); Woodall v. Fed. Bureau of Prisons, 432 F.3d 235 (3d Cir.2005). The Levine, Fults, and Woodall courts each determined that the BOP regulations at 28 C.F.R. §§ 570.20 and 570.21 contradicted the clear and unambiguous congressional intent expressed in 18 U.S.C. § 3621(b). Levine, 455 F.3d at 87; Fults, 442 F.3d at 1092; Woodall, 432 F.3d at 249. Each court interpreted § 3621(b) to clearly and unambiguously require the BOP to consider the five factors set out in § 3621(b)(l)-(5) when making placement and transfer decisions, and interpreted the CCC placement restrictions in § 570.21 as preventing the BOP from fully considering each of these factors. Levine, 455 F.3d at 87 (“Section 3621(b) establishes clear parameters for the BOP’s exercise of discretion in making prison placements and transfers. By sorting prisoners’ eligibility for [CCCs] only according to the portion of time served, the BOP has unlawfully excised these parameters from the statute.”); Fults, 442 F.3d at 1092 (“[T]he BOP’s regulation necessarily conflicts with § 3621(b) by excluding an entire class of inmates — those not serving the final ten percent of their sentences — from the opportunity to be transferred to a CCC.”); Woodall, 432 F.3d at 249 (“[W]e are faced with a statute providing that the BOP must consider several factors in CCC placement, and a regulation providing that the agency may not consider those factors in" }, { "docid": "22397661", "title": "", "text": "fail to take into account Congress’s indications that certain individualized factors— including a sentencing court’s recommendations — should be considered in the BOP’s placement and transfer scheme. Therefore, the regulations are not “reasonable in light of the legislature’s revealed design.” Id. at 116 (quoting NationsBank of North Carolina, N.A. v. Variable Annuity Life Ins. Co., 513 U.S. 251, 257, 115 S.Ct. 810, 130 L.Ed.2d 740 (1995)). We thus conclude that even if the BOP regulations pass the first prong of the Chevron analysis, they fail to meet the second. Of course, Chevron and its progeny recognize the wide deference granted to agencies such as the BOP in administering their governing statutes, and we are well aware of the expertise of the Bureau of Prisons in matters concerning prison administration and inmate placement. However, we are also mindful that the Bureau cannot depart from the clearly expressed intent of Congress, including its desire that several factors, one of which is the recommendation of a sentencing judge, be considered in placement designations. To accept the BOP’s argument would be to ignore that intent as embodied in the statute’s plain language and legislative history. In sum, while the BOP does have the discretion to refuse to place Woodall in a CCC for the last six months of his sentence, the exercise of that discretion must be based, at least in part, on the § 3621(b) factors. F. The Dissent’s Temporal Limitation Arguments The dissent argues that the § 3621(b) factors need not be considered by the BOP until an inmate transfer is “actually considered.” We disagree. First, this argument ignores the fact that in promulgating the 2005 regulations, the BOP did “actually consider” the question of CCC placement. The BOP “considered” the appropriateness of more lengthy CCC placements for all current and future inmates, and did so without properly acknowledging the factors specifically designated by Congress in § 3621(b). See Baker, 2005 WL 2276040, at *3, 2005 U.S. Dist. LEXIS 23468, at *15 (“[Although the BOP is not required to transfer a prisoner at any specific time, it is required to make decisions" }, { "docid": "12684882", "title": "", "text": "that the regulation misconstrues the discretion granted to the BOP by § 3621(b) and violates the Ex Post Facto Clause. Solely on the basis of the former argument, the district court ordered the BOP to consider in good faith whether to transfer Fults to a CCC to serve the final 180 days of his sentence. II. Prior to December 2002, the BOP allowed an inmate to be placed in a CCC for up to six months, regardless of the total length of the inmate’s sentence. On December 13, 2002, the Office of Legal Counsel for the Department of Justice issued a memorandum stating that this practice was inconsistent with § 3624(c) which, in its opinion, limited an inmate’s placement in a CCC to the lesser of six months or ten percent of the inmate’s sentence. Section 3624(c) states: The Bureau of Prisons shall, to the extent practicable, assure that a prisoner serving a term of imprisonment spends a reasonable part, not to exceed six months, of the last 10 per centum of the term to be served under conditions that will afford the prisoner a reasonable opportunity to adjust to and prepare for the prisoner’s re-entry into the community. The authority provided by this subsection may be used to place a prisoner in home confinement. The United States Probation System shall, to the extent practicable, offer assistance to a prisoner during such pre-release custody- The BOP adopted the Office of Legal Counsel’s interpretation of this statute, but we later rejected that interpretation and invalidated the December 2002 policy in Elwood v. Jeter, 386 F.3d 842 (8th Cir.2004). We stated that the BOP has the discretion to transfer an inmate to a CCC at any time, but only the duty to consider a transfer to a CCC in the last six months of a sentence. Id. at 845-47. In February 2005, in response to Elwood and a similar decision from the First Circuit, Goldings v. Winn, 383 F.3d 17 (1st Cir.2004), the BOP created new regulations governing the placement of inmates in CCCs. These regulations state that the BOP was engaging" }, { "docid": "12854950", "title": "", "text": "Rule improperly precludes a consideration of these factors in the case of CCC placement. As set forth in Drew v. Menifee, wherein the court also invalidated the February 2005 Rule, “there is no inconsistency between recognizing the BOP’s right to exercise its discretion on a categorical basis and requiring that it consider the factors Congress has specifically identified as relevant.” 2005 WL 525449 at *5. Pursuant to Lopez, BOP is free to make a categorical finding that the nature and circumstances of a particular offense or the history and characteristics of a class of offender present concerns than outweigh the other factors in Section 3621(b). The February 2005 Rule fails because it in no way relates to or considers these factors with regard to transfer to a CCC. D. EX POST FACTO CLAUSE Pimentel contends that the February 2005 Rule violates the Ex Post Facto Clause because it amounts to a retroactive increase to his punishment. Having already found the February 2005 Rule improperly ignores the factors set forth in Section 3621(b), I decline to decide whether it also violates the Constitution. See Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (“The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.”); Slack v. McDaniel, 529 U.S. 473, 475, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (same). III. CONCLUSION For the foregoing reasons, the petition is granted and respondent is ordered, in good faith, to consider the appropriateness of transferring the petitioner to a community confinement center in light of the factors set forth in Section 3621(b) and any additional factors deemed appropriate by the BOP, without reference to the BOP policy promulgated in December 2002 and without reference to the BOP’s February 14 amendment to 28 C.F.R. § 570.21. Respondent is to make this determination promptly, and, in no event, later than ten (10) days from the date of this Order. SO ORDERED. . Pimentel asserts that he was sentenced on" }, { "docid": "4487695", "title": "", "text": "DECISION AND ORDER MARRERO, District Judge. Pro se petitioner Lawrence White (“White”), an inmate in the custody of the Federal Bureau of Prisons (“BOP”) at the Federal Correctional Institution in Otis-ville, New York (“FCI Otisville”), seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241, on the grounds that the BOP policy codified in its February 14, 2005 amendment to 28 C.F.R. Part 570 (“ § 570.21”) constituted an unauthorized exercise of the BOP’s administrative discretion pursuant to 18 U.S.C. § 3621(b). White asserts that BOP’s application of § 570.21 in determining his eligibility for placement in a Community Corrections Center (“CCC”) was improper and requests that the BOP immediately and in good faith consider his eligibility for transfer to a CCC without reference to § 570.21. For the reasons set forth below, White’s petition is dismissed as moot. I. BACKGROUND White was convicted in the United States District Court for the Southern District of New York for health care fraud and false statements relating to health care matters. He was sentenced on March 3, 2005 to a 24-month term of incarceration and a 24-month term of supervised release. (See Judgment and Commitment Order (“J & C”), attached as Ex. C to Declaration of Adam M. Johnson, dated December 7, 2005 (“Johnson Dec!.”)). White’s custody expires on February 5, 2007. (See Respondent’s Memorandum of Law in Opposition to Petition for Writ of Habeas Corpus, dated December 22, 2005 (“Resp.Mem.”), at 2.) II. DISCUSSION At the time he filed his Petition, White’s eligibility for placement in a CCC was subject to the rules set forth in § 570.21. Those rules limited eligibility for placement in a CCC to inmates serving the last ten percent of their sentences and further specified that such placement could not exceed six months. See § 570.21. Subsequent to the filing of White’s petition, the Second Circuit ruled in Levine v. Apker that § 570.21 “is an improper exercise of the BOP’s rulemaking authority.” 455 F.3d 71, 86 (2d Cir.2006). The Circuit Court held that “in transferring an inmate to a CCC or any ‘available" }, { "docid": "19926052", "title": "", "text": "are consistent with the § 3621(b) statutory scheme for BOP placement and transfer determinations. Section 3621(b) articulates clear and unambiguous congressional intent that all placement and transfer determinations be carried out with reference to each of the five factors enumerated in § 3621(b)(1)-(5). In promulgating regulations pursu ant to this statute, the BOP must not contradict Congress’ clear intent. Chevron, 467 U.S. at 843 n. 9, 104 S.Ct. 2778 (“The judiciary ... must reject administrative constructions which are contrary to clear congressional intent.”). Accordingly, if 28 C.F.R. §§ 570.20 and 570.21 are inconsistent with § 3621(b), this court must determine them to be invalid. C. Relationship Between 18 U.S.C. § 3621(b) and 28 C.F.R. §§ 570.20 and 570.21 Section 570.20(a), the policy statement explaining the BOP’s ten-percent rule, defines the rule as a “categorical exercise of discretion for designating inmates to community confinement.” 28 C.F.R. § 570.20(a). Section 570.21(a) then provides that the BOP “will designate inmates to community confinement only as part of pre-release custody and programming” and only “during the last ten percent of the prison sentence being served, not to exceed six months.” 28 C.F.R. § 570.21(a). The regulations, therefore, add a threshold requirement to any placement or transfer decision the BOP might make under 18 U.S.C. § 3621(b). As long as an inmate has more than ten percent of his sentence left to serve (or as long as ten percent of an inmate’s remaining sentence exceeds the regulation’s six-month maximum), the BOP will categorically refuse to consider whether the five statutory factors would, nonetheless, weigh in favor of earlier CCC placement. This categorical refusal to consider the five statutory factors is in direct conflict with the clear congressional command that the factors be considered if a transfer is sought or recommended. Based on the foregoing reasoning, the district court and each of the three circuit courts to consider the question determined these regulations to be inconsistent with the clear and unambiguous congressional intent articulated in § 3621(b) and, therefore, invalid under Chevron’s first step. See Levine, 455 F.3d at 87; Fults, 442 F.3d at 1090; Woodall," }, { "docid": "12684888", "title": "", "text": "criteria, is not controlling. The Third Circuit is the only Court of Appeals to have ruled on the validity of the BOP’s February 2005 regulation. See Woodall v. Fed. Bureau of Prisons, 432 F.3d 235 (3d Cir.2005). In holding that the regulation was invalid, the Woodall court said: The regulations do not allow the BOP to consider the nature and circumstances of an inmate’s offense, his or her history and pertinent characteristics, or most importantly, any statement by the sentencing court concerning a placement recommendation and the purposes for the sentence. And yet, according to the text and history of § 3621, these factors must be taken into account. The regulations are invalid because the BOP may not categorically remove its ability to consider the explicit factors set forth by Congress in § 3621(b) for making placement and transfer determinations. Woodall, 432 F.3d at 244. The BOP offers a number of counterarguments. First, it contends that § 3621(b) provides the BOP with the discretion to consider the enumerated factors, but not the duty to do so. Second, it claims that it did consider the enumerated factors in making the decision to categorically exclude from CCC placement those inmates not within the last ten percent of their sentences. Third, it asserts that it will consider the enumerated factors on an individualized basis when making placement decisions for inmates who are in the last ten percent of their sentences. These arguments were all also raised in the Woo-dall case, and we reject them for the same reasons discussed at length in that opinion. Woodall, 432 F.3d at 245-51. Those reasons are summarized below. The BOP’s first argument hinges on the use of the word “may,” rather than “shall,” at the beginning of § 3621(b). We agree with the Woodall Court that the term “may” describes the BOP’s discretionary ability to place an inmate in any penal facility that meets the appropriate standards. The term does not modify the BOP’s duty to consider the five enumerated factors when making placement decisions. The word immediately preceding the factors is “considering.” This implies that the" }, { "docid": "22397662", "title": "", "text": "would be to ignore that intent as embodied in the statute’s plain language and legislative history. In sum, while the BOP does have the discretion to refuse to place Woodall in a CCC for the last six months of his sentence, the exercise of that discretion must be based, at least in part, on the § 3621(b) factors. F. The Dissent’s Temporal Limitation Arguments The dissent argues that the § 3621(b) factors need not be considered by the BOP until an inmate transfer is “actually considered.” We disagree. First, this argument ignores the fact that in promulgating the 2005 regulations, the BOP did “actually consider” the question of CCC placement. The BOP “considered” the appropriateness of more lengthy CCC placements for all current and future inmates, and did so without properly acknowledging the factors specifically designated by Congress in § 3621(b). See Baker, 2005 WL 2276040, at *3, 2005 U.S. Dist. LEXIS 23468, at *15 (“[Although the BOP is not required to transfer a prisoner at any specific time, it is required to make decisions regarding transfer considering the statutory factors. A blanket failure to consider such factors and exercise discretion accordingly thus violates the statute and its underlying policy.”). The dissent cites Yip, 363 F.Supp.2d at 552, in addition to other cases, for the proposition that the BOP has simply identified a category of prisoners — those not yet required by § 3624(b) to be considered for CCC transfers — and “created a rule denying transfer to all of them.” But in denying transfer to inmates generally, the BOP clearly considered the question of transfer to begin with. It did so, we think in error, without reference to the mandatory § 3621(b) factors. Those factors cannot all be considered in a blanket promulgation. Second, we believe that the dissent takes a crabbed view of the BOP’s governing statute. The statute as a whole, if it is to have practical effect, indicates that the factors enumerated must be considered in making determinations regarding where to initially place an inmate, as well as whether or not to transfer him. As is" }, { "docid": "22397666", "title": "", "text": "a prisoner to a CCC does not mean that it must. Therefore, the appropriate remedy is an order requiring the BOP to consider — in good faith — whether or not Woodall should be transferred to a CCC. In making this decision, the BOP should consider the sentencing judge’s recommendation and the other § 3621 factors, as well as any other appropriate factors the BOP routinely considers. This should be done without reference to the BOP’s 2002 and 2005 policies. It should also be done immediately given that Woodall’s six-month CCC placement would already have started. As noted above, Woodall is scheduled to be transferred to a CCC in January, and to be released on April 3, 2006. Accordingly, we will vacate the District Court’s order and remand with instructions to grant the writ of habeas corpus conditioned upon the BOP’s immediate reconsideration of the decision as to whether to transfer Woodall to a CCC under the § 3621 factors. The mandate shall issue forthwith. FUENTES, Circuit Judge. I agree with the majority that the District Court had jurisdiction in this case under 28 U.S.C. § 2241, and that 18 U.S.C. § 3621(b) requires the BOP to consider each of the factors listed in that statute in designating the place of an inmate’s imprisonment or transfer. However, I dissent from the majority’s invalidation of the BOP’s February 2005 regulation because I find that the § 3621(b) factors need not be considered by the BOP until an inmate is actually considered for a transfer, and that the BOP is not required to consider any inmate for transfer to a CCC until the lesser of six months or ten percent of an inmate’s sentence remains. Under the language of § 3621(b), the BOP “may” designate an inmate to any approved facility at any time, and as the majority convincingly explains, the agency must consider the listed factors when it makes a designation. The statute does not require the BOP to make or consider such a designation at any particular time, however. The only relevant temporal requirement arises in 18 U.S.C. § 3624(c)," }, { "docid": "22397665", "title": "", "text": "re-entry, if “practicable.” The statute requires the BOP not just to consider, but to actually place an inmate in a CCC or like facility, during the last ten percent or six months of the sentence, when that is possible. Under the dissent’s rationale, the temporal references in § 3624(c), which were meant to create an obligation regarding CCC placement, swallow the central provisions of § 3621(b). These § 3621(b) provisions were meant to guide the transfer scheme more generally. In short, we conclude that the § 3621(b) factors apply to BOP determinations re garding whether or not initial placements or transfers are appropriate. We thus do not find that the factors are limited by the temporal references in § 3624. V. Woodall’s Remedy We have held that the BOP may transfer an inmate to a CCC or like facility prior to the last six months or ten percent of his sentence. In exercising its discretion in this matter, the BOP must consider the factors set forth in § 3621(b). However, that the BOP may assign a prisoner to a CCC does not mean that it must. Therefore, the appropriate remedy is an order requiring the BOP to consider — in good faith — whether or not Woodall should be transferred to a CCC. In making this decision, the BOP should consider the sentencing judge’s recommendation and the other § 3621 factors, as well as any other appropriate factors the BOP routinely considers. This should be done without reference to the BOP’s 2002 and 2005 policies. It should also be done immediately given that Woodall’s six-month CCC placement would already have started. As noted above, Woodall is scheduled to be transferred to a CCC in January, and to be released on April 3, 2006. Accordingly, we will vacate the District Court’s order and remand with instructions to grant the writ of habeas corpus conditioned upon the BOP’s immediate reconsideration of the decision as to whether to transfer Woodall to a CCC under the § 3621 factors. The mandate shall issue forthwith. FUENTES, Circuit Judge. I agree with the majority that the" }, { "docid": "16584677", "title": "", "text": "courts also invalidated the 2002 policy. See, e.g., United States v. Mestel, 2004 WL 2472273 (D.Conn. Nov.2, 2004). But see Skelskey v. Deboo, 332 F.Supp.2d 485 (D.Conn.2004). In response to court rulings such as Elwood and Goldings, in 2004 the BOP proposed new regulations. 69 Fed.Reg. 51,213 (Aug. 18, 2004). After a period for submission of comments, the proposed regulations were published in January 2005 and became effective on February 14, 2005. See 28 C.F.R. §§ 570.20-21. Unlike the 2002 policy, the 2005 regulation recognizes that the BOP has authority under section 3621 to place an inmate in a CCC at any time, but the regulation represents a “categorical exercise of discretion for designating inmates to community confinement.” 28 C.F.R. § 570.20(a). Pursuant to the 2005 rule, the BOP will designate inmates to CCC’s (subject to certain exceptions not relevant to the instant suit) “only as part of pre-release custody and programming, during the last ten percent of the prison sentence being served, not to exceed six months.” 28 C.F.R. § 570.21(a). In the last year, the validity of the 2005 regulations has also been litigated. One Court of Appeals has considered the rule and rejected it as unlawful. See Woodall v. Federal Bureau of Prisons, 432 F.3d 235 (3d Cir.2005). District courts in the Second Circuit have been divided on the issue. Compare, e.g., Baker v. Willingham, 2005 WL 2276040 (D.Conn. Sept.16, 2005) (invaliding the new rule); Pimentel, 367 F.Supp.2d 365 (same) with, e.g., Moss v. Apker, 376 F.Supp.2d 416 (S.D.N.Y.2005) (upholding the new rule); Yip v. Federal Bureau of Prisons, 363 F.Supp.2d 548 (E.D.N.Y.2005) (same). B. The BOP Regulation is an Unlawful Interpretation of Section 8621(c) The 2005 rule is a categorical exercise of discretion for designating or transferring inmates to CCC’s. Because 18 U.S.C. § 3621(c) requires the BOP to consider certain, individualized factors before determining a prisoner’s placement or potential transfer, the BOP’s categorical rule is unlawful. See Woodall, 432 F.3d at 244 (“The regulations are invalid because the BOP may not categorically remove its ability to consider the explicit factors set forth by Congress in" }, { "docid": "12684889", "title": "", "text": "so. Second, it claims that it did consider the enumerated factors in making the decision to categorically exclude from CCC placement those inmates not within the last ten percent of their sentences. Third, it asserts that it will consider the enumerated factors on an individualized basis when making placement decisions for inmates who are in the last ten percent of their sentences. These arguments were all also raised in the Woo-dall case, and we reject them for the same reasons discussed at length in that opinion. Woodall, 432 F.3d at 245-51. Those reasons are summarized below. The BOP’s first argument hinges on the use of the word “may,” rather than “shall,” at the beginning of § 3621(b). We agree with the Woodall Court that the term “may” describes the BOP’s discretionary ability to place an inmate in any penal facility that meets the appropriate standards. The term does not modify the BOP’s duty to consider the five enumerated factors when making placement decisions. The word immediately preceding the factors is “considering.” This implies that the BOP must consider all of the factors that follow. This implication is bolstered by the statute’s legislative history as discussed in Woodall. Woodall, 432 F.3d at 245-46. Nothing in § 3621(b) suggests that consideration of the factors is optional. The BOP’s contention that it considered all of the factors in making its categorical exercise of discretion is without merit. Three of the five factors relate to an inmate’s individual circumstances. Accordingly, it would not have been possible for the BOP to consider all of the factors when it promulgated the regulations. The BOP’s most persuasive argument is that the § 3621(b) factors need not be considered until the BOP considers whether a specific individual should be transferred. This interpretation of the statute was the main focus of the dissent in Woo-dall. Woodall, 432 F.3d at 251-52 (Fuentes, J. dissenting) (“[T]he § 3621(b) factors need not be considered by the BOP until an inmate is actually considered for a transfer, and ... the BOP is not required to consider any inmate for transfer to a CCC" }, { "docid": "16584684", "title": "", "text": "to order the BOP to consider her for CCC placement immediately. Although section 3621(b) does not set forth requirements concerning when the BOP must consider transfers, prior to the implementation of the 2002 policy and 2005 rule, inmates were referred to CCC’s for up to 180 days before release from custody. Program Statement 7310.01 at 8 (Dec. 16, 1998), Ex. A to Decl. of Patrick W. Ward (doc. # 12), available at http://www.bop.gov/policy/in-dex.jsp. When considering the remedy available for an inmate challenging the 2005 rule, courts have ordered the BOP to immediately consider the inmate for transfer to a CCC in good faith and without reference to the 2002 and 2005 policies. See, e.g., Woodall, 432 F.3d at 251; Baker, 2005 WL 2276040 at *7. Although the BOP is not required to consider an inmate transfer at any particular time — other than its duty to provide appropriate pre-release conditions pursuant to section 3624(c) — it may not rely on its invalid regulations for guidance. Accordingly, I hereby order the Respondent to consider Evans’ request for transfer to a CCC in good faith and without regard to the 2005 rule or 2002 policy. Because the full-term of Evans’ sentence will expire on August 29, 2006, time is of the essence, and the Respondent is ordered to consider Evans’ request for transfer within ten days. Evans’ petition (doc. # 1) is GRANTED. It is so ordered. . The Respondent has not challenged that Evans properly filed her suit as a habeas petition pursuant to 28 U.S.C. § 2241. A petitioner seeking habeas relief under section 2241 is normally required to first exhaust administrative remedies. See, e.g., Carmona v. United States Bureau of Prisons, 243 F.3d 629, 634 (2d Cir.2001). Where, as here, exhaustion would be futile, it is appropriate to waive that prudential requirement. See, e.g., Pimentel v. Gonzales, 367 F.Supp.2d 365, 371 (E.D.N.Y.2005). Although Evans has not exhausted her remedies with the BOP, such an attempt would be futile. I, therefore, excuse that failure. . In the present litigation, the Respondent has not maintained that his authority to transfer a" }, { "docid": "19926058", "title": "", "text": "entitles Wedelstedt to be considered for transfer to a CCC prior to the last ten percent of his sentence. In determining whether Wedel-stedt should be transferred, the BOP must consider the factors set forth in 18 U.S.C. § 3621(b) without regard to the invalid regulations. This court, however, takes no position on whether Wedelstedt should be transferred and, as Wedelstedt himself acknowledges, he has no entitlement to such a transfer. The record on appeal does not indicate whether the sentencing court made any statements recommending that Wedelstedt serve part of his sentence in a CCC, nor is it appropriate for this court to consider the arguments made in the parties’ briefs about Wedelstedt’s character. Y. CONCLUSION For the foregoing reasons, this court affirms the district court’s grant of Wedel-stedt’s habeas writ and affirms the district court’s order that the BOP immediately consider whether Wedelstedt should be transferred to a CCC without regard to 28 C.F.R. §§ 570.20 and 570.21. The mandate shall issue forthwith. . The Second, Third, and Eighth Circuits are the only circuit courts to have considered the BOP regulations at issue and each invalidated them. See Levine v. Apker, 455 F.3d 71, 87 (2d Cir.2006); Fults v. Sanders, 442 F.3d 1088, 1092 (8th Cir.2006); Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 237 (3d Cir.2005). Additionally, the First and Eighth Circuits previously concluded a 2002 BOP policy, which similarly prohibited CCC transfer prior to the last part of a prisoner’s term, constituted an impermissible restriction on the BOP's discretion in prisoner assignment. See Elwood v. Jeter, 386 F.3d 842, 847 (8th Cir. 2004); Goldings v. Winn, 383 F.3d 17, 28-29 (1st Cir.2004). . For a more thorough discussion of the BOP’s adoption of the current ten-percent policy in 2002 and the promulgation of its current regulations, see Fults, 442 F.3d at 1089-91, and Woodall, 432 F.3d at 240. . The record is silent as to whether the sentencing judge recommended Wedelstedt serve any portion of his sentence in a CCC. See 18 U.S.C. § 3621(b)(4)(B). . Wedelstedt’s § 2241 application also alleged the manner in which" } ]

[ { "docid": "23247250", "title": "", "text": "law or in equity against a person acting under col- or of state law, who deprives another of rights, privileges or immunities, it does not provide a cause of action for conspiracy to deny due process or other rights, and it cannot be used for that purpose; in this regard see Hanna v. Home Insurance Co., 281 F.2d 298, 5 Cir., 1960. “Since neither section 1981 nor 1983 mentions the words ‘conspiracy’ it has been held that a cause of action for such a conspiracy is not cognizable in the federal courts, and this is the announced rule in the Fifth Circuit. See 15 Am. Jurisprudence 2d, 416, at Section 14, under Civil Rights, and the Hanna case.” It appearing that what was said with respect to this matter in the Hanna case, supra, was dictum, we are guided by what has more recently been said in Mansell v. Saunders, 5 Cir., 1967, 372 F.2d 573, where, dealing with section 1983, this court said: “We hold that appellants stated causes of action under 42 U.S.C.A. § 1983. This statute embraces deprivation or (sic) both due process of law and equal protection of the laws, and the action charged was under color of state law. * * * It contemplates such deprivation through the unconstitutional application of a law by a conspiracy or otherwise.” We think this view is bolstered by the language of the court in Nesmith v. Alford, 5 Cir., 1963, 318 F.2d 110, 126. The court there said: “In the Plaintiff’s complaint and in the pretrial order outlining the issues for the trial then to be held * * * the Plaintiffs asserted the theory of a conspiracy among the several police officers and city officials to violate their Civil Rights. Of course, for a claim under § 1983, a conspiracy as such is not an indispensable element as it is under § 1985. But it may be charged as the legal mechanism through which to impose liability on each and all of the Defendants without regard to the person doing the particular act. Conspiracy is asserted in" } ]

[ { "docid": "14884293", "title": "", "text": "Porush, Belfort and Maxwell conspired to breach their fiduciary duties to Stratton through manipulation, mismanagement, and usurpation of Stratton, self-dealing by its principals, officers and directors, and resulting unjust enrichment and corporate waste, all of which were allegedly occasioned by or a direct result of the SP and NCP Agreements and the S & B payments. Belfort, his father and Porush argue that these claimed breaches are already reflected in the Fifth, Sixth, Seventh (all three of which are unchallenged), Ninth and Tenth Claims for relief, the first against Belfort, the second two against Porush and the third two against Maxwell. The Eleventh Cause of Action, assert the trio, merely adds that they conspired to commit the foregoing breaches of fiduciary duty and, therefore, standing alone, is not actionable under New York law because the underlying acts to which this claim for civil conspiracy attaches have already been alleged in the form of separate and distinct claims against the individual defendants. A conspiracy is an agreement between two or more persons to accomplish an unlawful purpose. See Borden v. Spoor Behrins Campbell & Young, 828 F.Supp. 216, 225 (S.D.N.Y.1993). “The charge of conspiracy in an a civil action is merely the string whereby the plaintiff seeks to tie together those who, acting in concert, may be held responsible in damages for any overt acts or acts.” Powell v. Kopman, 511 F.Supp. 700, 704 (S.D.N.Y.1981) (quoting Rutkin v. Reinfeld, 229 F.2d 248, 252 (2d Cir.), cert. denied, 352 U.S. 844, 77 S.Ct. 50, 1 L.Ed.2d 60 (1956)). New York courts do not recognize an inde pendent cause of action for civil conspiracy. See Banca Commercial Italiana, N.Y. v. Northern Trust Intern. Banking Corp., 160 F.3d 90, 93 (2d Cir.1998); Durante Bros. & Sons, Inc., v. Flushing Natl. Bank, 755 F.2d 239, 251 (2d Cir.1985); ESI, 995 F.Supp. at 434; Hoag v. Chancellor, Inc., 246 A.D.2d 224, 677 N.Y.S.2d 531, 534 (1998); Litras v. Litras, 254 A.D.2d 395, 681 N.Y.S.2d 545, 546 (1998); Ahmed v. National Bank of Pakistan, 572 F.Supp. 550, 554 (S.D.N.Y.1983). Notwithstanding this general rule, a few cases have" }, { "docid": "2903213", "title": "", "text": "International Management Services, 398 F.Supp. 307, 312 (S.D.N.Y.1975). However, conspiracy, per se, is not a tort under New York law. Grove Press, 649 F.2d at 123; Newburger, Loeb & Co. v. Gross, 563 F.2d 1057, 1074 (2d Cir.1977), cert denied, 434 U.S. 1035, 98 S.Ct. 769, 54 L.Ed.2d 782 (1978). The allegation of a conspiracy “is merely the string whereby the plaintiff seeks to tie together those who, acting in concert, may be held responsible in damages for any overt act or acts [performed by any of the co-conspirators].” Grove Press, 649 F.2d at 123 (quoting Rutkin v. Reinfeld, 229 F.2d 248, 252 (2d Cir.), cert. denied, 352 U.S. 844, 77 S.Ct. 50, 1 L.Ed.2d 60 (1956)). Plaintiff asserts jurisdiction over the moving defendants as individuals. It is therefore necessary to determine whether an agency relationship, legally cognizable for jurisdictional purposes, existed between the defendants in their capacity as individuals and their alleged agents in New York. See Green v. McCall, 710 F.2d 29, 34 (2d Cir.1983); Grove Press, Inc. v. Angleton, 649 F.2d at 122. Marsh v. Kitchen, 480 F.2d 1270, 1273 (2d Cir.1973). Grove Press Inc. v. Angleton is similar to the case presented here in that plaintiffs asserted long-arm jurisdiction on the basis of acts that defendants’ alleged co-conspirators committed in New York, and all of the alleged conspirators were government employees. 649 F.2d at 122. The Grove Press plaintiffs claimed that employees of the Central Intelligence Agency had conspired to violate their constitutional and statutory rights by the methods used to investigate the Grove Press Publishing Company. The district court asserted long-arm jurisdiction over CIA employees who had committed no acts in New York on the basis of acts committed in New York by other CIA employees. Id.; see also Grove Press, Inc. v. CIA, 608 F.2d 926, 927 (2d Cir.1979). In reversing the district court’s finding of personal jurisdiction, the Second Circuit stated that for purposes of applying N.Y. Civ.Prac.Law Sec. 302(a)(2), an agency relationship exists only when the alleged agent “acted in New York for the benefit of, with the knowledge and consent of," }, { "docid": "23464851", "title": "", "text": "home. Given the nature of his inju ries and the duration of his detention, the denial of his request to go to the hospital was not objectively unreasonable. iv) Garza. Garza claims that the defendants should have allowed him to go to the hospital because of his blood pressure. He was released after three hours. He went to the hospital, received medical attention, obtained a prescription for his high blood pressure, and was given permission to go home. He has not alleged that the three hour delay caused any complications. The defendants’ actions were objectively reasonable as to Garza. D. Conspiracy. All plaintiffs claim that all defendants conspired to deprive them of their civil rights. We have recognized that section 1983 plaintiffs may assert conspiracy claims. See Mizell v. North Broward Hospital Dist., 427 F.2d 468, 472-73 (5th Cir.1970). A conspiracy by itself, however, is not actionable under section 1983. In Nesmith v. Alford, 318 F.2d 110 (5th Cir.1963), cert. denied, 375 U.S. 975, 84 S.Ct. 489, 11 L.Ed.2d 420 (1964), we stated: “Of course, for a claim under § 1983, a conspiracy as such is not an indispensable element as it is under § 1985. But it may be charged as the legal mechanism through which to impose liability on each and all of the Defendants without regard to the person doing the particular act.” Id. at 126. Thus, a conspiracy claim is not actionable without an actual violation of section 1983. See Hanna v. Home Ins. Co., 281 F.2d 298, 303 (5th Cir.1960), cert. denied, 366 U.S. 955, 81 S.Ct. 1905, 6 L.Ed.2d 1247 (1961). In order to prevail on a section 1983 conspiracy claim, a plaintiff must establish (1) the existence of a conspiracy involving state action and (2) a deprivation of civil rights in furtherance of the conspiracy by a party to the conspiracy. This appeal requires us to consider the legal effect of qualified immunity in the conspiracy context. Specifically, we must determine whether defendants who are entitled to assert qualified immunity may be personally liable based on a section 1983 conspiracy theory when the" }, { "docid": "14884294", "title": "", "text": "purpose. See Borden v. Spoor Behrins Campbell & Young, 828 F.Supp. 216, 225 (S.D.N.Y.1993). “The charge of conspiracy in an a civil action is merely the string whereby the plaintiff seeks to tie together those who, acting in concert, may be held responsible in damages for any overt acts or acts.” Powell v. Kopman, 511 F.Supp. 700, 704 (S.D.N.Y.1981) (quoting Rutkin v. Reinfeld, 229 F.2d 248, 252 (2d Cir.), cert. denied, 352 U.S. 844, 77 S.Ct. 50, 1 L.Ed.2d 60 (1956)). New York courts do not recognize an inde pendent cause of action for civil conspiracy. See Banca Commercial Italiana, N.Y. v. Northern Trust Intern. Banking Corp., 160 F.3d 90, 93 (2d Cir.1998); Durante Bros. & Sons, Inc., v. Flushing Natl. Bank, 755 F.2d 239, 251 (2d Cir.1985); ESI, 995 F.Supp. at 434; Hoag v. Chancellor, Inc., 246 A.D.2d 224, 677 N.Y.S.2d 531, 534 (1998); Litras v. Litras, 254 A.D.2d 395, 681 N.Y.S.2d 545, 546 (1998); Ahmed v. National Bank of Pakistan, 572 F.Supp. 550, 554 (S.D.N.Y.1983). Notwithstanding this general rule, a few cases have recognized a limited tort of conspiracy “to do an unlawful thing, or to do a lawful thing in an unlawful manner.” Ahead By A Length, 100 B.R. at 170 (quoting Arlinghaus v. Ritenour, 622 F.2d 629, 639 (2d. Cir.), cert. denied, 449 U.S. 1013, 101 S.Ct. 570, 66 L.Ed.2d 471 (1980)); see Lippe, 230 B.R. at 918 (plaintiff must plead wrongful conduct constituting an independent tort); Ahmed, 572 F.Supp. at 554. This exception permits a plaintiff to recover for the overt acts committed in carrying out the conspiracy’s wrongful purpose or goal but not for the mere act of conspiring in and of itself. See Ahead By A Length, 100 B.R. at 170 (citing Sterling Nat’l Bank & Trust Co. v. Federated Dep’t Stores, Inc. 612 F.Supp. 144, 146 n. 1 (S.D.N.Y.1985)). Since New York courts do not recognize an independent cause of action for civil conspiracy, the Eleventh Claim can lie only if it alleges, in addition to the conspiracy, independent overt acts undertaken in pursuit of that conspiracy. Here, the overt acts alleged" }, { "docid": "22947818", "title": "", "text": "Rutkin v. Reinfeld, 229 F.2d 248, 252 (2d Cir. 1956), cert. denied, 352 U.S. 844, 77 S.Ct. 50, 1 L.Ed.2d 60 (1956). As stated in Jones v. Bales, 58 F.R.D. 453, 458 (N.D.Ga.1972), aff’d, 480 F.2d 805 (5th Cir. 1973) (per curiam): “For a claim under 42 U.S.C. § 1983, a conspiracy is not a vital element. Nevertheless, a conspiracy may be used as the legal mechanism through which to impose liability on each and all the defendants without regard to the person doing the particular act. Mizell v. North Broward Hosp. Dist., 427 F.2d 468, 472-473 (5th Cir. 1970); Nesmith v. Alford, 318 F.2d 110, 126 (5th Cir. 1963) [cert. denied, 375 U.S. 975, 84 S.Ct. 489, 11 L.Ed.2d 420 (1964)].” In the case at bar plaintiff has shown that defendants agreed and acted in concert in denying plaintiff a hearing. Indeed a board is incapable of acting in any other manner. Each defendant, however, is still only liable for the overt act of depriving plaintiff of his property interest without a hearing, which is the same liability that exists under the substantive charge of Count I. The conspiracy count thus adds nothing to the substantive count. IV. Relief for Due Process Violation The Defendant Board The defendant board, as distinguished from its members, “is a body politic and corporate” which “may sue and be sued in all courts and places where judicial proceedings are had,” Ill. Rev.Stat., ch. 122, § 103-11 (1969); that is, it is a municipal corporation, Norfolk & W. Ry. Co. v. Board of Education, 114 F.2d 859, 863 (7th Cir. 1940) (relying upon Board of Education v. Upham, 357 Ill. 263, 191 N.E. 876 (1934)). As such it is not amenable to suit under 42 U.S.C. § 1983. City of Kenosha v. Bruno, 412 U.S. 507, 513, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973); Monroe v. Pape, 365 U.S. 167, 187-192, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); see Strickland v. Inlow, 485 F.2d 186, 191 (8th Cir. 1973), rev’d on other grounds sub nom. Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992," }, { "docid": "22566813", "title": "", "text": "Pacific Transportation Co. v. Stoot, 530 S.W.2d 930, 931 (Tex.1975) (emphasis added). The actions of the defendants may also have amounted to a violation of the Louisiana Constitution, which provides in section 22 of its Declaration of Rights that “every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to [his] ... property... . ” La.Const. art. I, § 22 (emphasis added). An action for conspiracy may be maintained under section 1983. Slavin v. Curry, 574 F.2d 1256, 1261 (5th Cir.), modified, 583 F.2d 779 (5th Cir.1978). However, federal courts view conspiracy claims under section 1983 differently than similar claims under section 1985. We explained this important distinction in Nesmith v. Alford, 318 F.2d 110 (5th Cir.1963), cert. denied, 375 U.S. 975, 84 S.Ct. 489, 11 L.Ed.2d 420 (1964): In the Plaintiff’s complaint and in the pretrial order outlining the issues for the trial then to be held * * * the Plaintiffs asserted the theory of a conspiracy among the several police officers and city officials to violate their Civil Rights. Of course, for a claim under § 1983, a conspiracy as such is not an indispensable element as it is under § 1985. But it may be charged as the legal mechanism through which to impose liability on each and all of the Defendants without regard to the person doing the particular act. Conspiracy is asserted in that situation on more or less traditional principles of agency, partnership, joint venture, and the like. Id. at 126 (emphasis added). We applied the same principle in Mansell v. Saunders, 372 F.2d 573, 576 (5th Cir.1967): We hold that appellants stated causes of action under 42 U.S.C.A. § 1983. This statute embraces deprivation or [sic] both due process of law and equal protection of the laws, and the action charged was under color of state law. * * * It contemplates such deprivation through the unconstitutional application of a law by a conspiracy or otherwise. See also Mizell v. North Broward Hospital District, 427 F.2d 468, 472 (5th" }, { "docid": "22442934", "title": "", "text": "Thus, regardless of the characterization of Slavin’s single conspiracy claim, none of its individual components is barred by the statute of limitations. The conclusion that no part of Slavin’s action is barred by a limitation period depends upon his being able to maintain the action as one for conspiracy either under section 1983 or section 1985. Absent a connecting conspiracy, the statute of limitations would run from the date of each violation and, as the district court held, some portions of the action would be barred. An action for conspiracy may be maintained under section 1983. As this court said in Nesmith v. Alford, 318 F.2d 110, 126 (5th Cir. 1963), cert. denied, 375 U.S. 975, 84 S.Ct. 489, 11 L.Ed.2d 420 (1964): Of course, for a claim under § 1983, a conspiracy as such is not an indispensable element as it is under § 1985. But it may be charged as the legal mechanism through which to impose liability on each and all of the Defendants without regard to the person doing the particular act. Conspiracy is asserted in that situation on more or less traditional principles of agency, partnership, joint venture, and the like. To maintain a conspiracy action under § 1983 here, however, it is necessary that there have been an actual denial of due process or of equal protection by someone acting under color of state law. Hanna v. Home Insurance Company, 281 F.2d 298, 303 (5th Cir. 1960), cert. denied, 365 U.S. 838, 81 S.Ct. 751, 5 L.Ed.2d 747 (1961). Here, taking the allegations as true, the conspirators framed Slavin, thereby denying him due process, and prevented him from obtaining a beer and wine license, thereby denying him equal protection of the laws. In particular, the court reporters acted under color of state law in preparing the trial transcript. Slavin’s complaint is therefore legally sufficient to state a cause of action for conspiracy under section 1983. We reach a different conclusion regarding his claims under section 1985. In his complaint, Slavin mentions only section 1985(3). Even so, the complaint states facts sufficient to support a" }, { "docid": "22947817", "title": "", "text": "The Conspiracy Charge Plaintiff contends that, as alleged in Count II of his amended complaint, the board members, in addition to violating his civil rights, conspired to do so in violation of 42 U.S.C. § 1983. The District Court, having found no violation of plaintiff’s rights, also found against plaintiff on the conspiracy issue. The doctrine of civil conspiracy extends liability for a tort, here the deprivation of constitutional rights, to persons other than the actual wrongdoer, W. Prosser, The Law of Torts § 46 at 293 (4th ed. 1971), but it is the acts causing damage to the plaintiff that give rise to liability for damages, not the conspiracy itself. “The damage for which recovery may be had in a civil action is not the conspiracy itself but the injury to the plaintiff produced by specific overt acts. [Citations omitted.] The charge of conspiracy in a civil action is merely the string whereby the plaintiff seeks to tie together those who, acting in concert, may be held responsible for any overt act or acts.” Rutkin v. Reinfeld, 229 F.2d 248, 252 (2d Cir. 1956), cert. denied, 352 U.S. 844, 77 S.Ct. 50, 1 L.Ed.2d 60 (1956). As stated in Jones v. Bales, 58 F.R.D. 453, 458 (N.D.Ga.1972), aff’d, 480 F.2d 805 (5th Cir. 1973) (per curiam): “For a claim under 42 U.S.C. § 1983, a conspiracy is not a vital element. Nevertheless, a conspiracy may be used as the legal mechanism through which to impose liability on each and all the defendants without regard to the person doing the particular act. Mizell v. North Broward Hosp. Dist., 427 F.2d 468, 472-473 (5th Cir. 1970); Nesmith v. Alford, 318 F.2d 110, 126 (5th Cir. 1963) [cert. denied, 375 U.S. 975, 84 S.Ct. 489, 11 L.Ed.2d 420 (1964)].” In the case at bar plaintiff has shown that defendants agreed and acted in concert in denying plaintiff a hearing. Indeed a board is incapable of acting in any other manner. Each defendant, however, is still only liable for the overt act of depriving plaintiff of his property interest without a hearing, which" }, { "docid": "19989443", "title": "", "text": "a tort. Newburger, Loeb & Co. v. Gross, 563 F.2d 1057, 1074 (2d Cir. 1977), cert. denied, 434 U.S. 1035, 98 S.Ct. 769, 54 L.Ed.2d 782 (1978); Kajtazi v. Kajtazi, 488 F.Supp. 15, 21 (E.D.N.Y.1978); ABKCO Industries, Inc. v. Lennon, 52 App.Div.2d 435, 441, 384 N.Y.S.2d 781 (1976). “The damage for which recovery may be had in a civil action is not the conspiracy itself but the injury to the plaintiff produced by specific overt acts.” Rutkin v. Reinfeld, 229 F.2d 248, 252 (2d Cir.), cert. denied, 352 U.S. 844, 77 S.Ct. 50, 1 L.Ed.2d 60 (1956). Accordingly, a bare conclusory allegation of conspiracy does not state a cause of action. Goldstein v. Siegel, 19 App.Div.2d 489, 493, 244 N.Y.S.2d 378 (1963). A conspiracy is alleged for the purpose of showing that a wrong was committed jointly by the conspirators and that, because of their common purpose and interest, the acts of one may be imputed to the others. Original Ballet Russe, Ltd. v. Ballet Theatre, Inc., 133 F.2d 187, 189 (2d Cir. 1943). The allegation “is merely the string whereby the plaintiff seeks to tie together those who, acting in concert, may be held responsible in damages for any overt act or acts.” Rutkin v. Reinfeld, supra, 229 F.2d at 252. The evidence relied upon by the district court to connect appellants with a conspiracy was extremely weak. It consisted of assertions that appellants approved or failed to disapprove of several internal-security projects conducted by the CIA, which were in excess of that agency’s statutory authority. See 483 F.Supp. at 136-37. Assuming for the argument that appellants’ conduct was “common action for a common purpose by common agreement or understanding among a group, from which common responsibility derives,” Goldstein v. Siegel, supra, 19 App.Div.2d at 493, 244 N.Y.S.2d 378, it is undisputed that no part of the “common action” occurred in the State of New York. Plaintiffs have made no showing whatever that any of the unnamed CIA employees who allegedly performed the in-State tortious acts necessary for jurisdiction under section 302(a)(2) were parties to the “common agreement.” So" }, { "docid": "2903212", "title": "", "text": "Plaintiff relies on the New York State long-arm statute, N.Y.Civ.Prac.Law Sec. 302(a)(2), to obtain jurisdiction over defendants. Sec. 302(a)(2) provides in relevant part that a court may exercise personal jurisdiction over any nondomiciliary ... who in person or through an agent ... 2. commits a tortious act within the State____ N.Y.Civ.Prac.Law Sec. 302(a)(2) (McKinney 1972, Supp.1986). A. The Agency Theory Plaintiff contends that the moving defendants are all subject to personal juris diction in New York because of acts committed within the state by their agents. More specifically, she asserts that a conspiracy to conceal the Army’s involvement in the drug testing program existed among the moving defendants and other alleged co-conspirators in New York State, including David Marcus, such that the conspiratorial acts of Marcus and others within New York State may be imputed to the defendants for the purpose of gaining long-arm jurisdiction. A co-conspirator may be an “agent” as that term is used in the New York long-arm statute. Grove Press, Inc. v. Angleton, 649 F.2d 121, 122 (2d Cir.1981); Ghazoul v. International Management Services, 398 F.Supp. 307, 312 (S.D.N.Y.1975). However, conspiracy, per se, is not a tort under New York law. Grove Press, 649 F.2d at 123; Newburger, Loeb & Co. v. Gross, 563 F.2d 1057, 1074 (2d Cir.1977), cert denied, 434 U.S. 1035, 98 S.Ct. 769, 54 L.Ed.2d 782 (1978). The allegation of a conspiracy “is merely the string whereby the plaintiff seeks to tie together those who, acting in concert, may be held responsible in damages for any overt act or acts [performed by any of the co-conspirators].” Grove Press, 649 F.2d at 123 (quoting Rutkin v. Reinfeld, 229 F.2d 248, 252 (2d Cir.), cert. denied, 352 U.S. 844, 77 S.Ct. 50, 1 L.Ed.2d 60 (1956)). Plaintiff asserts jurisdiction over the moving defendants as individuals. It is therefore necessary to determine whether an agency relationship, legally cognizable for jurisdictional purposes, existed between the defendants in their capacity as individuals and their alleged agents in New York. See Green v. McCall, 710 F.2d 29, 34 (2d Cir.1983); Grove Press, Inc. v. Angleton, 649 F.2d at" }, { "docid": "22442933", "title": "", "text": "complicity in the first action. The complaint recounts a number of incidents. While they state separate causes of action against individual defendants, they also charge participation in a single conspiracy. The district court erred in treating the incidents as alleging only separate causes of action. Since there is no congressionally enacted statute of limitation for actions under the Civil Rights Act, federal courts must apply the appropriate state limitation period. Under Texas law the statute of limitations for a civil conspiracy begins to run after “the last overt act alleged to have caused damage.” Harang v. Aetna Life Insurance Company, 400 S.W.2d 810, 814 (Tex.Civ.App.1966). In the present case, the last overt act occurred on December 30, 1975, when the court reporters certified the transcript of Slavin’s trial. We need not decide which limitation period would be appropriate for Slavin’s complaint, for he filed it within a year of the last act and the shortest period of limitation for personal actions under Texas law is one year. See Tex.Rev.Civ.Stat.Ann. arts. 5524-5536a (Vernon 1958 & Supp.1978). Thus, regardless of the characterization of Slavin’s single conspiracy claim, none of its individual components is barred by the statute of limitations. The conclusion that no part of Slavin’s action is barred by a limitation period depends upon his being able to maintain the action as one for conspiracy either under section 1983 or section 1985. Absent a connecting conspiracy, the statute of limitations would run from the date of each violation and, as the district court held, some portions of the action would be barred. An action for conspiracy may be maintained under section 1983. As this court said in Nesmith v. Alford, 318 F.2d 110, 126 (5th Cir. 1963), cert. denied, 375 U.S. 975, 84 S.Ct. 489, 11 L.Ed.2d 420 (1964): Of course, for a claim under § 1983, a conspiracy as such is not an indispensable element as it is under § 1985. But it may be charged as the legal mechanism through which to impose liability on each and all of the Defendants without regard to the person doing the particular" }, { "docid": "288251", "title": "", "text": "action. This action is duplicative and is dismissed. IV. Conspiracy The fifth cause of action alleged is for damages occasioned by the conspiracy of the defendants. A civil conspiracy is a combination of two or more persons to do an unlawful or criminal act or to do a lawful act by unlawful means or for an unlawful purpose. Ammlung v. City of Chester, 494 F.2d 811, 814 (3d Cir. 1974). Unlike a criminal conspiracy, where the conspiracy itself forms the gist of the crime, in a civil conspiracy, it is the overt acts producing damage to the plaintiff that give rise to liability. The charge of conspiracy is merely the string “. . . whereby the plaintiff seeks to tie together those who, acting in concert, may be held liable for any overt act . . . .” Rutkin v. Reinfeld, 229 F.2d 248, 252 (2d Cir.), cert, denied, 352 U.S. 844, 77 S.Ct. 50, 1 L.Ed.2d 60 (1956). New York cases hold there is no substantive tort of civil conspiracy in New York Ghazoul v. International Management Services, Inc., 398 F.Supp. 307, 311 (1975), and that a civil conspiracy to commit an actionable wrong is not a cause of action. See ABKCO Industries, Inc. v. Lennon, 52 A.D.2d 435, 437, 384 N.Y.S.2d 781, 783 (1976); Health Delivery Systems Inc. v. Scheinman, 42 A.D.2d 566, 567, 344 N.Y. S.2d 190, 191 (1973); Egan Real Estate, Inc. v. McGraw, 40 A.D.2d 299, 301, 339 N.Y. S.2d 870, 872, 244 N.Y.S.2d 378, 380 (1963). Assuming arguendo New York State recognized the substantive tort of civil conspiracy, because of the critical function of the overt act, the allegations must be supported by more than vague and conclusory statements. The complaint must contain specific facts which demonstrate what the defendant did to execute the conspiracy; that such acts fit within the framework of the conspiracy; and that such acts have inflicted injury upon the plaintiff. Hoffman v. Halden, 268 F.2d 280 (9th Cir. 1959); Martin Hodas, East Coast Cinematics v. Lindsay, 431 F.Supp. 637, 644 (S.D.N.Y.1977). Defendants Joseph and Adolph, together with defendant Fabian," }, { "docid": "288250", "title": "", "text": "defendants Fabian, Joseph and Adolph the suni of $50 a day from November 4,1977, to date of judgment, for the intentional infliction of mental suffering occasioned by the plaintiff due to the felonious conduct of the defendant. III. Prima Facie Tort The fourth cause of action alleged is for prima facie tort. New York recognizes a distinct cause of action for prima facie tort but the doctrine has crystallized into a narrowly restricted specific remedy, involving otherwise lawful conduct not giving rise to an action for some other tort. The New York courts have taken the view that conduct actionable under one of the traditional tort categories cannot be made the subject of an action for prima facie tort. Susskind v. Ipco Hospital Supply Corp., 49 A.D.2d 915, 917, 373 N.Y.S.2d 627, 629 (1975); Nationwide Carpets, Inc. v. Lenett Publications, Inc., 31 A.D.2d 911, 912, 298 N.Y.S.2d 95, 96 (1969); Best Window Co. v. Better Business Bureau, 2 Misc.2d 55, 58, 146 N.Y.S.2d 382, 385 (1955). Plaintiffs allege other distinct and sound tort causes of action. This action is duplicative and is dismissed. IV. Conspiracy The fifth cause of action alleged is for damages occasioned by the conspiracy of the defendants. A civil conspiracy is a combination of two or more persons to do an unlawful or criminal act or to do a lawful act by unlawful means or for an unlawful purpose. Ammlung v. City of Chester, 494 F.2d 811, 814 (3d Cir. 1974). Unlike a criminal conspiracy, where the conspiracy itself forms the gist of the crime, in a civil conspiracy, it is the overt acts producing damage to the plaintiff that give rise to liability. The charge of conspiracy is merely the string “. . . whereby the plaintiff seeks to tie together those who, acting in concert, may be held liable for any overt act . . . .” Rutkin v. Reinfeld, 229 F.2d 248, 252 (2d Cir.), cert, denied, 352 U.S. 844, 77 S.Ct. 50, 1 L.Ed.2d 60 (1956). New York cases hold there is no substantive tort of civil conspiracy in New York Ghazoul" }, { "docid": "7412875", "title": "", "text": "the defendants to appropriate its business and goodwill. A conspiracy is alleged for the purpose of showing that a wrong was committed jointly by the conspirators and that, because of their common purpose and interest, the acts of one may be imputed to the others. Original Ballet Russe, Ltd. v. Ballet Theatre, Inc., 133 F.2d 187, 189 (2d Cir.1943). The allegation “is merely the string whereby the plaintiff seeks to tie together those who, acting in concert, may be held responsible in damages for any overt act or acts.” Rutkin v. Reinfeld, supra, 229 F.2d [248] at 252 [(2d Cir.), cert. denied, 352 U.S. 844, 77 S.Ct. 50, 1 L.Ed.2d 60 (1956)]. Grove Press, Inc., 649 F.2d at 123. The conspiracy count, set forth at paragraphs 71 and 72 of the complaint, incorporates by reference the preceding 70 paragraphs. Contained therein are allegations that Schmid intended to reduce competition in the market for Hummel products by removing plaintiff as a competitor and to appropriate plaintiffs business and goodwill (1134) and to steal plaintiffs key employees (If 40). The complaint further alleges that the Goebel Defendants agreed to Schmid’s demand to terminate the distributorship agreement with plaintiff (Mi 36 & 39) and agreed to make Schmid a primary distributor and importer of Goebel-Hummel products (1138). The complaint also alleges illegal combinations in violation of the federal antitrust laws, intentional interference with contractual relations (1164) and intentional interference with prospective contractual relations (1166). The conspiracy allegations in this case properly serve the purpose of allowing the acts of one defendant to be imputed to the other. Grove Press, Inc., 649 F.2d at 123. In many respects, the complaint is similar to the allegations of conspiracy upheld by the New York Court of Appeals in A.S. Rampell v. Hyster Co., 3 N.Y.2d 369, 379-80, 165 N.Y.S.2d 475, 484, 144 N.E.2d 371, 377, (1957). For these reasons the motions to dismiss Count VIII are denied. Paragraphs 73, 74 and 75 of Count IX set forth factual averments as predicates for plaintiff’s claim for an accounting of all sums paid by it to Goebel Promotion." }, { "docid": "7412874", "title": "", "text": "at 349. Accordingly, Count VII is dismissed for failure to state a claim upon which relief can be granted. The termination clause of the distribution agreement contains no implied requirement that it must be exercised in good faith. But see Richard Bruce & Co. v. J. Simpson & Co., 40 Misc.2d 501, 504, 243 N.Y.S.2d 503, 506 (Sup.Ct.1963) (underwriter’s right to terminate underwriting agreement if “in its absolute discretion” it determines that market conditions make it undesirable to continue “means ... a discretion based upon fair dealing and good faith”). See generally J. Calamari & J. Perillo, The Law of Contracts § 4-17, at 161-64 (2d ed.1977). All the defendants have moved to dismiss Count VIII of the complaint which alleges a conspiracy to unlawfully appropriate plaintiff’s business and goodwill thereby injuring and damaging plaintiff. Defendants are correct that under New York law “conspiracy, per se, is not a tort.” Grove Press, Inc. v. Angleton, 649 F.2d 121, 123 (2d Cir.1981). This does not mean, however, that plaintiff may not properly allege a conspiracy among the defendants to appropriate its business and goodwill. A conspiracy is alleged for the purpose of showing that a wrong was committed jointly by the conspirators and that, because of their common purpose and interest, the acts of one may be imputed to the others. Original Ballet Russe, Ltd. v. Ballet Theatre, Inc., 133 F.2d 187, 189 (2d Cir.1943). The allegation “is merely the string whereby the plaintiff seeks to tie together those who, acting in concert, may be held responsible in damages for any overt act or acts.” Rutkin v. Reinfeld, supra, 229 F.2d [248] at 252 [(2d Cir.), cert. denied, 352 U.S. 844, 77 S.Ct. 50, 1 L.Ed.2d 60 (1956)]. Grove Press, Inc., 649 F.2d at 123. The conspiracy count, set forth at paragraphs 71 and 72 of the complaint, incorporates by reference the preceding 70 paragraphs. Contained therein are allegations that Schmid intended to reduce competition in the market for Hummel products by removing plaintiff as a competitor and to appropriate plaintiffs business and goodwill (1134) and to steal plaintiffs key employees" }, { "docid": "4515588", "title": "", "text": "the instant case Judge Shell noted: Without hesitation, the Court concludes that interests of the plaintiff as a subpoenaed witness in a United States District Court proceeding in commenting to an attorney associated with that case concerning any matters related to that case override the interests of the police department in regulating his speech. On the record before us we cannot say that this finding is clearly erroneous. Conspiracy. The defendants contend that a civil conspiracy charge is improper under § 1983 and challenge the trial court’s finding that they engaged in a civil conspiracy. The Seventh Circuit, in Hostrop v. Board of Junior College District No. 515, 523 F.2d 569 (7th Cir. 1975), holding that § 1983 could support a charge of civil conspiracy, explained: The doctrine of civil conspiracy extends liability for a tort, here the deprivation of constitutional rights, to persons other than the actual wrongdoer, W. Prosser, The Law of Torts § 46 at 293 (4th ed. 1971), but it is the acts causing damage to the plaintiff that give rise to liability for damages, not the conspiracy itself. “The damage for which recovery may be had in a civil action is not the con spiracy itself but the injury to the plaintiff produced by specific overt acts. [Citations omitted.] The charge of conspiracy in a civil action is merely the string whereby the plaintiff seeks to tie together those who, acting in concert, may be held responsible- for any overt act or acts.” Rutkin v. Reinfeld, 229 F.2d 248, 252 (2d Cir. 1956), cert. denied, 352 U.S. 844, 77 S.Ct. 50,1 L.Ed.2d 60 (1956). Id. at 576. See also Mizell v. North Broward Hospital District, 427 F.2d 468, 472-73 (5th Cir. 1970); Hoffman v. Halden, 268 F.2d 280, 292-94 (9th Cir. 1959), overruled on other grounds, Cohen v. Norris, 300 F.2d 24, 29-30 (9th Cir. 1962). The record establishes that Weeks and his assistant, Terry, jointly and individually acted to deprive Simpson of his civil rights. Terry was fully cognizant of Weeks’ vendetta against Simpson and acted on his own initiative and in bad faith" }, { "docid": "10469083", "title": "", "text": "is: “In the context of a continuing conspiracy ... each time a plaintiff is injured by an act of defendants a cause of action accrues to him to recover the damages caused by that act and that, as to those damages, the statute of limitations runs from the commission of that act.” Zenith Radio Corp. v. Hazeltine Research, 401 U.S. 321, 338, 91 S.Ct. 795, 806, 28 L.Ed.2d 77 (1971). In other words, in a longstanding conspiracy to violate civil rights, a civil plaintiff will recover only those damages “caused by” the overt acts of the conspiracy that occurred within the period of the statute of limitations. As the D.C. Circuit has said, “the statute of limitations in a civil damages action for conspiracy runs separately from each overt act that is alleged to cause damage to the plaintiff.\" Lawrence v. Acree, 665 F.2d 1319,1324 (D.C.Cir.1981) (per curiam) (footnote omitted). This rule is consistent with an earlier Second Circuit case cited by Jones, Rutkin v. Reinfeld, 229 F.2d 248, 252 (2d Cir.) (Lumbard, J.), cert. denied, 352 U.S. 844, 11 S.Ct. 50, 1 L.Ed.2d 60 (1956). The Court there wrote: The charge of conspiracy in a civil action is merely the string whereby the plaintiff seeks to tie together those who, acting in concert, may be held responsible in damages for any overt act or acts. The person harmed by the conspiracy may bring suit as soon as the damage to him is inflicted; he obviously need not wait until the termination of the conspiracy which caused it. It is at the time of injury that the “right to relief by action” arises and the statute therefore begins to run at the moment such injury occurs. Id. (emphasis added). Therefore, the statute of limitations clock starts anew with each act and accompanying injury with respect to that act. Jones has also cited Landman v. Royster, 354 F.Supp. 1302 (E.D.Va.1973), in support of his proposition. The court there found that Landman, then an inmate in the Virginia prison system, was subject to “a continual pattern of unconstitutional punishment” in retaliation for" }, { "docid": "8848900", "title": "", "text": "was not act committed in New York); Marine Midland Bank v. Keplinger and Assoc., Inc., 488 F.Supp. 699 (S.D.N.Y.1980). Each of the alleged calls and letters, with the exception of one call from Defendant Wolf, originated outside New York. Under the relevant case law, these Defendants have not committed a tortious act within New York for purposes of § 302(a)(2). 2. Agency Plaintiff alternatively relies upon an agency theory based on an alleged conspiracy between Defendant Colapinto and the other Defendants. He claims that because the Defendants are co-conspirators, Colapinto’s filing of a false complaint in New York can be imputed to the other Defendants for jurisdictional purposes. A co-conspirator may be an “agent” as that term is used in § 302(a)(2). Grove Press, Inc. v. Angleton, 649 F.2d 121, 122-23 (2d Cir.1981). Under New York law, however, conspiracy itself is not a tort, but “‘merely the string whereby the plaintiff seeks to tie together those who, acting in concert, may be held responsible in damages for any overt act’ ” committed by a eo-eon-spirator. Id. at 123 (quoting Rutkin v. Reinfeld, 229 F.2d 248, 262 (2d Cir.), cert. denied, 352 U.S. 844, 77 S.Ct. 50, 1 L.Ed.2d 60. (1956)). Before an agency relationship will be held to exist under New York law, the plaintiff must allege a prima facie case of conspiracy, as well as a “sufficient relationship between the defendant and the conspiracy to warrant the inference that defendant was a member of the conspiracy.” Chrysler Capital Corp. v. Century Power Corp., 778 F.Supp. 1260, 1268-69 (S.D.N.Y.1991). Section 302(a)(2) does not require a formal agency relationship, but before long-arm jurisdiction can be exercised over an out-of-state co-conspirator, the plaintiff must show that (1) the out-of-state co-conspirator had an awareness of the effects of the activity in New York, (2) the New York co-conspirators’ activity was for the benefit of the out-of-state conspirators, and (3) that the co-conspirators in New York acted at the behest of or on behalf of, or under the control of the out-of-state conspirators. Id. at 1269; see also Grove Press, 649 F.2d at 122" }, { "docid": "4515589", "title": "", "text": "to liability for damages, not the conspiracy itself. “The damage for which recovery may be had in a civil action is not the con spiracy itself but the injury to the plaintiff produced by specific overt acts. [Citations omitted.] The charge of conspiracy in a civil action is merely the string whereby the plaintiff seeks to tie together those who, acting in concert, may be held responsible- for any overt act or acts.” Rutkin v. Reinfeld, 229 F.2d 248, 252 (2d Cir. 1956), cert. denied, 352 U.S. 844, 77 S.Ct. 50,1 L.Ed.2d 60 (1956). Id. at 576. See also Mizell v. North Broward Hospital District, 427 F.2d 468, 472-73 (5th Cir. 1970); Hoffman v. Halden, 268 F.2d 280, 292-94 (9th Cir. 1959), overruled on other grounds, Cohen v. Norris, 300 F.2d 24, 29-30 (9th Cir. 1962). The record establishes that Weeks and his assistant, Terry, jointly and individually acted to deprive Simpson of his civil rights. Terry was fully cognizant of Weeks’ vendetta against Simpson and acted on his own initiative and in bad faith in several instances to further the conspiracy. The evidence that both Weeks and Terry acted in bad faith and with malice in depriving Simpson of his civil rights is strongly supported in the record. The record is, however, inadequate to support a finding that Parkman acted either in concert with Weeks and Terry or independently to deprive Simpson of his First Amendment rights. Simpson relies primarily upon two incidents to establish Parkman’s liability. First, he argues that Parkman was involved in a meeting between Terry and Sergeant Charles Goodwin, Jr., at which Parkman purportedly said that Simpson was “the redheaded son-of-a-bitch that’s going and giving information.” No relationship between this statement and any overt act intended to deprive Simpson of his civil rights is established in the record. The second incident alleged as establishing Parkman’s culpability is the handling of a drug charge against Charles Crawford, a former member of the city’s Civil Service Commission. After reviewing the record we conclude the evidence of any wrongdoing by Parkman in connection with the Crawford matter was" }, { "docid": "22941583", "title": "", "text": "321, 338, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971); Rutkin v. Reinfeld, 229 F.2d 248, 252 (2d Cir.), cert. denied, 352 U.S. 844, 77 S.Ct. 50, 1 L.Ed.2d 60 (1956); Crummer Co. v. DuPont, 223 F.2d 238, 247 (5th Cir.), cert. denied, 350 U.S. 848, 76 S.Ct. 85, 100 L.Ed. 755 (1955). While this rule arose in cases of civil antitrust conspiracies, it has been applied to civil conspiracies to violate the federal civil rights laws, Hoffman v. Halden, 268 F.2d 280 (9th Cir. 1959); see Bergschneider v. Denver, 446 F.2d 569 (9th Cir. 1971). Injury and damage in a civil conspiracy action flow from the overt acts, not from “the mere continuance of a conspiracy”. Hoffman v. Halden, supra, 268 F.2d at 303. Under plaintiffs’ theory a conspiracy action could not be maintained — since no cause of action would have accrued — until it could be told with certainty that the final overt act in furtherance of the conspiracy had been committed. See Momand v. Universal Film Exchanges, supra, 172 F.2d at 49. We thus agree with the district court that defendants cannot be held liable for acts allegedly committed in 1971 and 1972. As for the post-1972 period, no overt acts specifically implicating these defendants are alleged. Plaintiffs can only fall back on the insufficient allegations already discussed implicating all defendants in everything. We agree with the district court that the complaint fails to state a claim as to these four defendants. 4. Santere, Johnson, MacMaster, Foreman and Jarvi. Lastly, the court dismissed the complaint as to defendants Santere, Johnson, Mac-Master, Foresman and Jarvi. Each of these defendants is named in the general allegations, along with all other defendants, as “an individual residing in Townsend, County of Middlesex, Massachusetts.” In addition, later in the complaint there are allegations relating to two different types of actions implicating defendants in their official capacity as members of the Board of Selectmen. Santere, Johnson and MacMaster are stated to have constituted the Board of Selectmen in 1973 when the Board rescinded its permission granted previously to plaintiff Robert M. Hicks, Inc." } ]

[ { "docid": "22116871", "title": "", "text": "of Ms. Cone under the ADEA, and therefore, she could not establish a pri-ma facie case. Ms. Cone appeals, challenging the district court’s dismissal on those grounds. We need not address whether an employer’s application of policy can be a “discharge” because we affirm the district court’s order on other grounds. The Tenth Circuit uses the three-stage analysis outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973), and Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252-56, 101 S.Ct. 1089, 1093-95, 67 L.Ed.2d 207 (1981), to prove discrimination when no direct evidence of age discrimination exists. Cooper v. Asplundh Tree Expert Co., 836 F.2d 1544, 1547 (10th Cir.1988). At the first stage, the plaintiff must prove a prima facie case of discrimination. She must show that (1) she is “within the protected age group”; (2) she “was doing satisfactory work”; (3) she “was discharged”; and (4) her position was filled by a younger person. Denison v. Swaco Geolograph Co., 941 F.2d 1416, 1420 (10th Cir.1991) (quoting Lucas v. Dover Corp., 857 F.2d 1397, 1400 (10th Cir.1988)). If the plaintiff satisfies the prima facie requirements under the ADEA, then the ease enters the next stage. In this second stage, the burden of production moves to the defendant. The defendant has to present a legitimate nondiscriminatory reason for. .its action. If the defendant articulates a legitimate, nondiscriminatory reason for its action, then the burden of persuasion moves back to the plaintiff. In this third stage of the discrimination analysis, the plaintiff must show that- age was a determinative factor in the defendant’s employment decision, or show that the defendant’s explanation for its action was merely pretext. See Faulkner v. Super Valu Stores, Inc., 3 F.3d 1419, 1424-25 (10th Cir.1993). Failure to come forward with evidence of pretext will entitle the defendant to judgment. See Burdine, 450 U.S. at 256, 101 S.Ct. at 1095; Denison, 941 F.2d at 1421 (evidence of pretext “is crucial in an ADEA case”). “Discharge” by an employer is an essential statutory element of the prima facie" } ]

[ { "docid": "22374044", "title": "", "text": "VII of the Civil Rights Act of 1964. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-06, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The Court has explained that \"[t]he McDonnell Douglas division of intermediate evidentiary burdens serves to bring the litigants and the court ... to [the] ultimate question [of whether the defendant intentionally discriminated against the plaintiff]” in violation of Title VII. Texas Dept, of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Accordingly, once a plaintiff makes a prima facie case, the burden shifts to the employer \"to articulate some legitimate, nondiscriminatory reason” for its allegedly discriminatory actions. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. If the employer does so, the prima facie case disappears and the employee must then show that the employer's proffered reasons were pretext for discrimination. See id. at 804, 93 S.Ct. 1817. In contrast, the ADA was designed \"to provide clear, strong, consistent, enforceable standards” to eliminate discrimination against disabled individuals. 42 U.S.C. § 12101(b)(2). As such, unless disparate treatment with others similarly situated is alleged, there is no statutory avenue under the ADA for an employer to articulate a nondiscriminatory reason for its actions or for an employee to show that the employer’s reason was pretextual. . \"A few hours’ tardiness should not be the reason for cutting off the interactive process and cutting off a person's rights under the ADA.” Bultemeyer, 100 F.3d at 1286. . An employer commits unlawful discrimination under the ADA if the employer does \"not mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the business of [the employer].” 42 U.S.C. § 12112(b)(5)(A); cf. Or.Rev.Stat. § 659.436(2)(e). The ADA’s regulations state that: \"To determine the appropriate reasonable accommodation it may be necessary for the [employer] to initiate an informal, interactive process with the [employee] with a disability in need of the accommodation. This process" }, { "docid": "16281779", "title": "", "text": "Bost wherein he asks Store Manager Von Cannon, “[a]re we paying for that?” and, upon Von Cannon’s affirmative response, McCray states “[w]ell, get rid of it .... ” However, this evidence is disputed. Therefore, the Court will proceed under the more traditional burden-shifting proof scheme of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); see also Ennis v. Nat’l Ass’n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 57-58 (4th Cir.1995) (extending McDonnell Douglas to ADA claims). Under the McDonnell Douglas proof scheme, a plaintiff must first establish a prima facie case of discrimination by a preponderance of the evidence. Murrell, 262 F.3d at 257; St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506-07, 113 S.Ct. 2742, 2746-47, 125 L.Ed.2d 407 (1993). The burden of production then shifts to the defendant to articulate a legitimate, non-discriminatory reason for its actions. Murrell, 262 F.3d at 257. If the defendant makes such a showing, the burden then shifts to the plaintiff to present evidence to prove that the defendant’s articulated reason was pretext for unlawful discrimination. Id. In making this final determination, a court may “consider the evidence establishing the plaintiffs prima facie case and inferences properly drawn therefrom .... ” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 2106, 147 L.Ed.2d 105 (2000) (quotation omitted). A court may also “infer the ultimate fact of discrimination from the falsity of the employer’s explanation.” Id. at 147, 120 S.Ct. at 2108. Finally, although the evidentiary burdens shift back and forth under the McDonnell Douglas framework, “[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981). C. Qualified Individual With a Disability The ADA prohibits a covered employer from discriminating “against a qualified individual with a disability because of the disability of such individual .... ” 42 U.S.C. § 12112(a). Therefore, to establish a prima facie case" }, { "docid": "2572184", "title": "", "text": "barring discrimination based on' disability do more than merely prohibit disparate treatment; they also impose an affirmative duty on employers to offer a “reasonable accommodation” to a disabled employee. 42 U.S.C. § 12112(b)(5)(A). García-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 646 n. 9 (1st Cir.2000). In order to establish a claim of disability discrimination under the ADA, in the absence of direct evidence of discrimination, a plaintiff must rely on circumstantial evidence and establish a prima, facie case through the burden shifting method developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under the McDonnell Douglas framework, a plaintiff must first prove by a preponderance of the evidence that he or she (i) is a “qualified individual” with a disability within the meaning of the Act; (ii) is able to perform the essential functions of the job, with or without a reasonable accommodation; (iii) was subject to an adverse employment action by an employer who is subject to the Act; (iv) was replaced by a non-disabled person or was treated less favorably than non-disabled employees; and (v) suffered damages as a result. Carroll v. Xerox Corp., 294 F.3d 231, 237 (1st Cir.2002)(citing Lessard v. Osram Sylvania, Inc., 175 F.3d 193, 197 (1st Cir.1999)); Calero-Cerezo v. U.S. Department of Justice, 855 F.3d 6, 19 (1st Cir.2004). Such a showing gives rise to an inference the employer discriminated due to the plaintiffs disability and places upon the employer the burden of articulating a legitimate, nondiscriminatory reason for the adverse employment decision. Cumpiano v. Banco Santander P.R., 902 F.2d 148, 153 (1st Cir.1990). This entails only a burden of production, and not a burden of persuasion. The burden of proving discrimination remains with the plaintiff at all times. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). See also Dichner v. Liberty Travel, 141 F.3d 24, 29-30 (1st Cir.1998) (holding that the employer’s burden is one only of production, inasmuch as the burden of proving an improper motive always remains with the plaintiff). Once" }, { "docid": "22374043", "title": "", "text": "whether Met and Snead have engaged in a good-faith interactive process to determine whether reasonable accommodation is feasible. Without the clarification requested by the plaintiff, it seems to me that there exists an evidentiary gap that needs to be filled before this case can be decided. I would therefore reverse the grant of summary judgment and remand the case to the district court for further proceedings. . Notably, the statutory language of the Oregon law is phrased much differently than that of the ADA. The Oregon law states that \"[i]t is an unlawful employment practice for any employer to ... discharge from employment ... an otherwise qualified person [because such person] is a disabled person.” Or.Rev.Stat. § 659.436(1) (1999). The ADA states that an employer “shall [not] discriminate against a qualified individual with a disability because of the disability of such individual in regard to ... discharge of employees.” 42 U.S.C. § 12112(a). . The McDonnell Douglas burden-shifting analysis applied by the majority was fashioned by the Supreme Court to analyze claims brought under Title VII of the Civil Rights Act of 1964. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-06, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The Court has explained that \"[t]he McDonnell Douglas division of intermediate evidentiary burdens serves to bring the litigants and the court ... to [the] ultimate question [of whether the defendant intentionally discriminated against the plaintiff]” in violation of Title VII. Texas Dept, of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Accordingly, once a plaintiff makes a prima facie case, the burden shifts to the employer \"to articulate some legitimate, nondiscriminatory reason” for its allegedly discriminatory actions. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. If the employer does so, the prima facie case disappears and the employee must then show that the employer's proffered reasons were pretext for discrimination. See id. at 804, 93 S.Ct. 1817. In contrast, the ADA was designed \"to provide clear, strong, consistent, enforceable standards” to eliminate discrimination against disabled individuals. 42 U.S.C. § 12101(b)(2). As such," }, { "docid": "14567005", "title": "", "text": "VII must establish that the employer’s actions were the result of intentional discrimination. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). Where, as in this case, a plaintiff seeks to prove a claim by use of circumstantial evidence of the employer’s intent, a framework of shifting burdens of proof applies. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). First, the plaintiff must establish a prima facie case of discrimination. McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Once the plaintiff establishes a prima facie ease, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions. Id. This is a burden of production, not persuasion. Burdine, 450 U.S. at 254-55, 101 S.Ct. 1089. If the employer provides a legitimate, nondiscriminatory reason for its actions, the burden shifts back to the plaintiff to prove by a preponderance of the evidence that the reasons offered by the employer were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817. To avoid summary judgment, the “evidence must be sufficient to create a genuine factual issue with respect to the truthfulness of the defendant’s proffered explanation.” Howard v. BP Oil Co., 32 F.3d 520, 525 (11th Cir.1994). A. Disparate Treatment and Equal Protection Claims (Counts I and Y) Merriweather contends that the Department of Public Safety took employment action against her on the basis of race.’ Merriweather brought claims against the Department of Public Safety and its Director, L.N. Hagan, in his official capacity, for race discrimination under 42 U.S.C. § 2000e (“Title VII”) and 42 U.S.C. § 1983 for violation of the Equal Protection Clause of the United States Constitution. Both claims, premised on the same facts, require evidence of intentional discrimination on the basis of race. Consequently, the framework traditionally applied to claims of intentional discrimination under Title VII (the McDonnell Douglas-Burdine framework set out above) also applies to Merriweather’s § 1983 claim for violation of the Equal Protection Clause. See Lee" }, { "docid": "23387552", "title": "", "text": "disability; 2) he is ‘otherwise qualified’ to perform the job requirements, with or without reasonable accommodation; and 3) he was discharged solely by reason of his handicap.” Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1178 (6th Cir.1996); see also Macy v. Hopkins County Sch. Bd. of Educ., 484 F.3d 357, 363 n. 2 (6th Cir. 2007) (explaining that, unlike “every other circuit save one,” the Sixth Circuit continues to subject claims brought under either the ADA or the Rehabilitation Act to the same substantive standard despite the linguistic differences between the two acts). Because Jones attempts to meet this burden by presenting circumstantial, as opposed to direct, evidence of discrimination, we apply the familiar three-step burden-shifting framework originally articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and later refined in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The initial burden rests with the plaintiff to establish a prima facie case of discrimination. Monette, 90 F.3d at 1186. If the plaintiff establishes a prima facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the challenged employment decision. Burdine, 450 U.S. at 253, 101 S.Ct. 1089. Should the employer carry this burden, then the burden returns to the plaintiff to prove by a preponderance of the evidence that the employer’s proffered reason was in fact a pretext designed to mask illegal discrimination. See id. Jones can defeat summary judgment only if his evidence is sufficient to “create a genuine dispute at each stage of the McDonnell Douglas inquiry.” See Macy, 484 F.3d at 364. C. Prima facie case Although the district court granted summary judgment to the USPS on the issue of pretext (the third step under the McDonnell Douglas framework), the USPS urges us to affirm the court’s decision instead on the ground that Jones failed to establish a prima facie case of disability-based discrimination under the Rehabilitation Act (the first step). To do so, a plaintiff must establish each of the following five" }, { "docid": "4109960", "title": "", "text": "application of Title VII burden shifting analysis to eases arising under ADA). This court will analyze a claim of discrimination because of disability in the same manner as cases involving other forms of discrimination. Under employment discrimination law, a plaintiff can establish a claim in two manners. First, he may present direct evidence of discrimination. Flasza, 1994 WL 529392, *3 (N.D.Ill. Sept. 27, 1994). Direct evidence usually takes the form of statements made by an employer that evidence discrimination based on, in this case, disability. In most cases, however, direct evidence is not available. Perryman v. Johnson Products Co., Inc., 698 F.2d 1138, 1141 (11th Cir.1983). The alternative method of establishing a claim in employment discrimination cases involves the use of indirect evidence. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981); McDonnell Douglas v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668; Morgan v. City of Jasper, 959 F.2d 1542, 1547 (11th Cir.1992). According to the framework laid out in McDonnell Douglas, a plaintiff must first establish a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. In the case of the ADA, a plaintiff establishes the prima facie case by showing that: 1) he suffers from a disability; 2) there was a position available for which he was qualified; 3) the position was given to a person who was not disabled. Flasza, 1994 WL 529392, *3 (N.D.Ill. Sept. 27, 1994). Once the plaintiff establishes a prima facie ease, the burden then shifts to the employer to rebut it by articulating clearly and specifically a legitimate, nondiscriminatory reason for its adverse employment action. Burdine, 450 U.S. at 254, 101 S.Ct. at 1094; McDonnell Douglas, 411 U.S. at 803, 93 S.Ct. at 1824-25; Morgan, 959 F.2d at 1547. This is a burden of production, not persuasion. Burdine, 450 U.S. at 254-55, 101 S.Ct. at 1094-95. The defendant need not at this stage prove that the reason alleged was the actual reason, he must simply allege it. St. Mary’s Honor Center" }, { "docid": "15978816", "title": "", "text": "v. Green, 411 U.S. 792, 793, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The plaintiff bears the initial burden of proving, by the preponderance of the evidence, every element of a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817; McMillan v. Examination Mgmt. Servs., Inc., No. 94-2229, 1996 WL 551725, at *7 (S.D.N.Y. Sept. 27, 1996). If he meets that burden (which has been described as minimal), the burden of production shifts to the defendant, who must come forward with a legitimate non-discriminatory reason for taking the action it took. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). However, “The defendant’s burden of production also is not a demanding one; [he] need only offer [ ] an explanation for the employment decision.” Bickerstaff v. Vassar College, 196 F.3d 435, 446 (2d Cir.1999). Once the defendant has come forward with a legitimate business reason for taking the adverse employment action, the burden shifts back to the plaintiff to prove—with hard evidence, not conclusory supposition—that the defendant’s articulated rationale is a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817. “A reason cannot be proved to be a pretext for discrimination unless it is shown both that the reason was false, and that discrimination was the real reason.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515,113 5. Ct. 2742, 125 L.Ed.2d 407 (1993) (internal citation omitted) (emphasis in original). “The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Burdine, 450 U.S. at 253, 101 S.Ct. 1089 (citing Bd. of Trs. of Keene State Coll. v. Sweeney, 439 U.S. 24, 25, n. 2, 99 S.Ct. 295, 58 L.Ed.2d 216 (1978).) Defendant has moved for summary judgment dismissing all of Schanfield’s personal claims. The Court will consider that motion before addressing the issue of class certification. II. Schanfield’s Individual Claims Schanfield asserts claims of discrimination and retaliation under virtually every applicable civil rights statute: 42 U.S.C. § 1981," }, { "docid": "20535793", "title": "", "text": "individual claiming disability discrimination and/or hostile work environment based on disability still bears the burden of establishing a prima facie case. To establish a prima facie case of disability discrimination under the ADA, the employee must show that he (1) is a disabled person within the meaning of the ADA; (2) is qualified to perform the essential functions of his job, with or without reasonable accommodations, and (3) has been subjected to an adverse employment action as a result of discrimination. Sulima v. Tobyhanna Army Depot, 602 F.3d 177, 185 (3d Cir.2010) (citing Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir.1999)); Gaul v. Lucent Techs., Inc., 134 F.3d 576, 580 (3d Cir.1998) (citation omitted). A discrimination claim under the ADA is analyzed under the familiar burden shifting of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Wishkin v. Potter, 476 F.3d 180, 185 (3d Cir.2007). Under this framework, initially, the plaintiff bears the burden of establishing a prima facie case of discrimination. Id. (citing McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817). If the plaintiff successfully establishes a prima facie case, the burden then shifts to the employer to articulate some legitimate non-discriminatory reason for the adverse employment action. Id. Once the employer carries its burden, the burden then shifts back to the plaintiff to prove by a preponderance of the evidence that the legitimate reasons proffered by the employer were merely a pretext for discrimination, and not the true motivation for the adverse employment action. Id. (citing Burdine, 450 U.S. at 252-53, 101 S.Ct. 1089; McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817). To succeed on a claim for harassment based on disability, the plaintiff must show that: “(1) [he] is a qualified individual with a disability under the ADA; (2) [he] was subject to unwelcome harassment; (3) the harassment was based on h[is] disability or a request for accommodation; (4) 'the harassment was sufficiently severe or pervasive to" }, { "docid": "11610261", "title": "", "text": "the NYPD perceived her as substantially limited in her ability to perform a class or a broad range of jobs, she fails to establish a prima facie case of perceived disability discrimination. The Court therefore grants defendant summary judgment on Tubens’s claim under the ADA. Tubens’s Title VII Claim A plaintiff in a Title VII action bears the initial burden of establishing a prima facie case. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). This burden, however, is a light one. See Chertkova v. Connecticut General Life Insurance Co., 92 F.3d 81, 87 (2d Cir.1996). A plaintiff establishes a prima facie case by showing (1) that she is a member of a protected class; (2) that she was qualified for the position she held; (3) that she was discharged; and (4) that the position remained open and the employer continued to seek applicants with the plaintiffs qualifications. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. A plaintiff who establishes a prima facie case has set forth sufficient facts upon which a finding of discrimination by the employer can be predicated. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The burden then shifts to the defendant to “articulate some legitimate non-discriminatory reason for the employee’s rejection.” Burdine, 450 U.S. at 253, 101 S.Ct. 1089 (quoting McDonnell Douglas, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668). If the defendant carries this burden, then the plaintiff must prove that the action taken against her was the result of unlawful discrimination, a burden she may discharge by establishing by a preponderance of the evidence that the legitimate reason offered by the defendant is merely a pretext for the employer’s actual discriminatory reasons for terminating the plaintiffs employment. See id. Assuming without deciding that Tubens has established a prima facie case, no rational finding of discrimination could be sustained on the facts presented here. The" }, { "docid": "594597", "title": "", "text": "Supreme Court recognized in Plumbers & Steamfitters Joint Apprenticeship Comm. v. Ohio Civil Rights Comm’n, 66 Ohio St.2d 192, 197, 421 N.E.2d 128 (1981), that McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) sets forth the formula courts should rely upon in evaluating claims of discrimination under Ohio Rev.Code § 4112.02. The burden shifting established in McDonnell Douglas, and later clarified by Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), is divided into three stages. At the first stage, plaintiff must prove aprima facie case of discrimination. Burdine, 450 U.S. at 252-53, 101 S.Ct. 1089. It is well settled that to establish a prima facie case of disability discrimination under Ohio Rev.Code § 4112.02, plaintiff must prove that: (1) she has a disability; (2) adverse action was taken by Federal Express, at least in part, because of her disability; and (3) even though she had a disability, she could have safely and substantially performed the essential functions of the job in question with or without reasonable accommodation. Hood v. Diamond Prods., 74 Ohio St.3d 298, 302, 658 N.E.2d 738 (1996) (citing Hazlett v. Martin Chevrolet, Inc., 25 Ohio St.3d 279, 281, 496 N.E.2d 478 (1986)). If plaintiff establishes a prima facie case, the burden then shifts to defendant to “articulate some legitimate, nondiscriminatory reason” for the adverse employment action. Id. (quoting McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817). See Plumbers, 66 Ohio St.2d at 197, 421 N.E.2d 128. If defendant meets this burden, the final stage requires plaintiff to prove that the proffered reason was merely a pretext for unlawful discrimination. Burdine, 450 U.S. at 253, 101 S.Ct. 1089 (citing McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817). Pretext is established by a direct showing that “a discriminatory reason more likely motivated the employer or [by an] indirect[ ] ... showing that the employer’s explanation is unworthy of credence.” Burdine, 450 U.S. at 256, 101 S.Ct. 1089. See also, Kline v. TVA, 128 F.3d 337, 342-43 (6th Cir.1997). Federal Express maintains" }, { "docid": "13003909", "title": "", "text": "mentor other employees, provide direction and assign tasks to team members, provide oversight and advice to team members, and interact with others, including contractors and employees, on a daily basis. At the time Plaintiff was under consideration for the Software Engineer IV position, the ISSD Department did not permit employees (as opposed to contractors) to telecommute. In addition, Defendant specifically advised Plaintiff that the Software Engineer IV job required him to work from Defendant’s offices. Defendant did not hire Plaintiff for the position, claiming that it was the company’s understanding that Plaintiff’s health prevented him from working from Defendant’s offices on a full-time basis. III. DISCUSSION A. Disability Discrimination The ADA prohibits employers from discriminating “against a qualified individual with a disability because of the disability of such individual in regard to ... hiring ....” 42 U.S.C. § 12112(a). Where, as here, there is no direct evidence of discrimination, the court applies the three-step, burden-shifting analysis set forth by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir.1997) (citation omitted) (applying McDonnell Douglas analysis to ADA discrimination claim). Under the McDonnell Douglas analysis, the plaintiff bears the initial burden of establishing a prima facie case of discrimination. 411 U.S. at 802, 93 S.Ct. 1817. If the plaintiff presents a prima facie case, then the burden shifts to the defendant to offer evidence suggesting a legitimate, non-discriminatory reason for the adverse employment action taken against the plaintiff. Id. Once the defendant articulates a legitimate, non-discriminatory reason, the ultimate burden reverts to the plaintiff to demonstrate an issue of material fact as to whether the proffered reason is pretextual. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507-08, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (citation omitted). Pretext can be established if the plaintiff shows either “that a discriminatory reason more likely motivated the employer or ... that the employer’s proffered explanation is unworthy of credence.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct." }, { "docid": "7300326", "title": "", "text": "make a full investigation of that incident. In an effort to evaluate the propriety of these requested “accommodations” and develop further appropriate accommodations, Ispat asked to examine Tyler’s medical records, but he refused to release them. Dr. Nasr subsequently diagnosed Tyler with a “paranoid disorder,” a diagnosis Tyler disputes. Ispat ultimately refused to transfer Tyler back to Plant 2. He then brought this suit under the ADA, 42 U.S.C. § 12101 et seq., alleging that the company failed reasonably to accommodate his disability of mental illness. The district court granted summary judgment in favor of Ispat, finding that Tyler suffered no adverse employ ment action and that the company had reasonably accommodated him. The ADA prohibits employers from discriminating against “a qualified individual with a disability because of the disability of such individual in regard to ... [the] terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). Where there is no direct evidence of disability discrimination, a plaintiff may prove his case indirectly by employing the burden-shifting approach set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under the McDonnell Douglas method of proof, the plaintiff bears the initial burden of establishing a prima facie case of discrimination. Bekker v. Humana Health Plan, Inc., 229 F.3d 662, 672 (7th Cir.2000), cert. denied, 121 S.Ct. 1603. The burden of production then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the employment action. Id. Finally, the burden shifts back to the plaintiff to prove that the employer’s articulated reason for the employment action was a pretext for discrimination and that the decision was in fact motivated by an unlawful factor. Id. Although the burden of production rests on the employer for the second stage of the McDonnell Douglas inquiry, “[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Because Tyler lacks direct evidence of discrimination," }, { "docid": "23593059", "title": "", "text": "that she was fired for absenteeism was pretext. Summary judgment is appropriate if there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). All evidence and inferences must be viewed in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The non-moving party, however, may not rest upon mere denials or allegations in the pleadings, but must set forth specific facts sufficient to raise a genuine issue for trial. Celotex Corp. v. Catrett, 471 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). We review a grant of summary judgment de novo. Crawford v. Runyon, 37 F.3d 1338, 1340 (8th Cir.1994). The ADA prohibits employment discrimination “against a qualified individual with a disability because of the. disability of such individual.” 42 U.S.C. § 12112(a). A plaintiff may use the burden-shifting frame work identified in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993), to prove a claim of intentional discrimination. This method of proof requires a plaintiff to establish her ability to prove a prima facie case. In the absence of an explanation from the employer, this creates a rebuttable presumption of discrimination. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981). The burden of production then shifts to the employer to come forward with a legitimate, nondiscriminatory reason for its actions. Id. Finally, the burden shifts back to the plaintiff to prove that the defendant’s proffered reason is pretextual and that intentional discrimination was the true reason for the defendant’s actions. See Hicks, 509 U.S. at -, 113 S.Ct. at 2747. To establish a prima facie case under the ADA, a plaintiff must show that she is a disabled person within the meaning of the ADA, that she is qualified to perform the essential functions of" }, { "docid": "22369270", "title": "", "text": "with the EEOC. Even if we assume that Leong was entitled to equitable tolling until he retained counsel who recognized his disability claim, his lawyer was required to exhaust administrative remedies as to his disability claim once recognized. The district court’s refusal to grant Leong equitable tolling was not an abuse of discretion. III. TITLE VII CLAIMS We review the district court’s grant of summary judgment de novo. United States v. City of Tacoma, 332 F.3d 574, 578 (9th Cir.2003). This Court must determine if, viewing the evidence in the light most favorable to the nonmoving party, there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Id.; Fed.R.Civ.P. 56(c). Federal law prohibits discharging any individual because of his race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2. In order to establish a prima facie case of discrimination, a plaintiff must show (1) that he belongs to a protected class; (2) he was qualified for the position; (3) he was subject to an adverse employment action; and (4) similarly situated individuals outside his protected class were treated more favorably. See, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). If the plaintiff establishes a prima facie case, the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for the employment decision. Id. Although the burden of production shifts to the defendant at this point, the burden of proof remains with the plaintiff at all times. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). If the employer offers a nondiscriminatory reason, the burden returns to the plaintiff to show that the articulated reason is a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817. The district court held that Leong failed to establish a prima facie case of discrimination because he could not provide evidence that similarly situated employees were treated more favorably than Leong was treated. Leong argues that three individuals were similarly situated" }, { "docid": "13003910", "title": "", "text": "1817, 36 L.Ed.2d 668 (1973). Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir.1997) (citation omitted) (applying McDonnell Douglas analysis to ADA discrimination claim). Under the McDonnell Douglas analysis, the plaintiff bears the initial burden of establishing a prima facie case of discrimination. 411 U.S. at 802, 93 S.Ct. 1817. If the plaintiff presents a prima facie case, then the burden shifts to the defendant to offer evidence suggesting a legitimate, non-discriminatory reason for the adverse employment action taken against the plaintiff. Id. Once the defendant articulates a legitimate, non-discriminatory reason, the ultimate burden reverts to the plaintiff to demonstrate an issue of material fact as to whether the proffered reason is pretextual. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507-08, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (citation omitted). Pretext can be established if the plaintiff shows either “that a discriminatory reason more likely motivated the employer or ... that the employer’s proffered explanation is unworthy of credence.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (citation omitted). “[A] plaintiffs prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). To establish a prima facie case of discrimination for failure to hire under the ADA, a plaintiff must show: (1) he has a “disability” within the meaning of the ADA; (2) he was qualified, with or without reasonable accommodation, to perform the essential functions of the job he sought; and (3) his employer refused to hire him under circumstances that give rise to an inference that the decision was based on his disability. See Morgan, 108 F.3d at 1323 (citation omitted). Defendant contends that Plaintiff has failed to meet any of these three elements. To satisfy the first element of the prima facie case, Plaintiff must show that he has a “disability” within the meaning of the ADA. Id. A" }, { "docid": "3086736", "title": "", "text": "on the basis of disability”). These methods and manners of proof are outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973) and Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252-56, 101 S.Ct. 1089, 1093-95, 67 L.Ed.2d 207 (1981). To avoid summary judgment, a plaintiff must first make out a prima facie case of discrimination based on disability by demonstrating that: (1) she is disabled within the meaning of the ADA; (2) she is qualified for the job, meaning that with or without reasonable accommodation (which she must describe), she is able to perform the essential functions of the job; (3) she was subjected to an adverse employment decision; (4) the employer knew or had reason to know of her disability; and (5) she was replaced by a non-disabled person or treated less favorably than non-disabled employees. Monette, 90 F.3d at 1185. The plaintiff must establish each of these elements to make out a prima facie case under the ADA. If the plaintiff successfully proves a prima facie case, the burden of production shifts to the employer to articulate some legitimate, nondiscriminatory reason for the adverse employment action. Id. at 1179. The employer’s articulation of a nondiscriminatory reason is legitimate if it is “clear, reasonably specific and worthy of credence.” Jordan v. Wilson, 755 F.Supp. 993, 996 (M.D.Ala.1990). Once the employer carries this burden, the burden shifts back to the plaintiff to prove by a preponderance of the evidence that the legitimate reasons offered by the employer were not its true reasons, but were a pretext for discrimination. Mon-ette, 90 F.3d at 1179. The Supreme Court has stated that, in order to show pretext, the plaintiff must demonstrate both that the proffered “reason was false, and that discrimination was the real reason.” St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 2752, 125 L.Ed.2d 407 (1993). Hicks made clear that when an employer proffers a nondiscriminatory explanation for its action, the inference of discrimination based upon the plaintiffs prima facie ease changes from a" }, { "docid": "22042161", "title": "", "text": "1817, 36 L.Ed.2d 668 (1973) (discrimination under Title VII); De-Novellis, 124 F.3d at 308 (under ADEA); Katz v. City Metal Co., 87 F.3d 26, 30 n. 2 (1st Cir.1996) (under ADA). Some of our sister circuit courts have applied this framework to the proscriptive portion of the FMLA, but not to claims under the prescriptive portion of the Act. See, e.g., Diaz, 131 F.3d at 712-13; Morgan v. Hilti Inc., 108 F.3d 1319, 1323 (10th Cir.1997). We follow that lead and hold that, when there is no direct evidence of discrimination, the McDonnell Douglas burden-shifting framework applies to claims that an employee was discriminated against for availing himself of FMLA-protected rights. McDonnell Douglas allocates the burdens of production and persuasion in accordance with a three-step procedure. See McDonnell Douglas, 411 U.S. at 802-04, 93 S.Ct. 1817. Under that framework, a plaintiff employee must carry the initial burden of coming forward with sufficient evidence to establish a prima facie case of discrimination or retaliation. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817; see Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). If he does so, then the burden shifts to the employer “to articulate some legitimate, nondiseriminatory reason for the employee’s [termination],” sufficient to raise a genuine issue of fact as to whether it discriminated against the employee. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817; see Burdine, 450 U.S. at 253, 101 S.Ct. 1089. The employer “must clearly set forth, through the introduction of admissible evi dence, the reasons for the [employee’s termination], The explanation provided must be legally sufficient to justify a judgment for the [employer].” Burdine, 450 U.S. at 255, 101 5.Ct. 1089. If the employer’s evidence creates a genuine issue of fact, the presumption of discrimination drops from the- case, and the plaintiff retains the ultimate burden of showing that the employer’s stated reason for terminating him was iii fact a pretext for retaliating against him for having taken protected FMLA leave. McDonnell Douglas, at 804, 93 S.Ct. 1817; Burdine, 450 U.S. at 257, 101" }, { "docid": "16776374", "title": "", "text": "preferred list for future vacancies (Malloy Decl Ex. U). After submitting a complete employment application, plaintiff was reinstated to the position of TPPA on June 9, 1997 (Greenberg Decl. ¶ 60). Discussion (1) The ADA provides that “no covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to ... the hiring, advancement, or discharge of employees ... and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). Courts reviewing discrimination claims under the ADA apply the burden-shifting framework established for Title VII cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Reg’l Econ. Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d 35, 48 (2d Cir.2002) (applying McDonnell Douglas burden-shifting framework to analyze a claim of intentional discrimination under the ADA). First, the plaintiff must demonstrate a prima facie case of discrimination. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). If the plaintiff meets its burden of establishing a prima facie case, the burden then shifts to the defendant to articulate evidence that the adverse employment action was taken for a legitimate, non-discriminatory reason. See id. at 506-07, 113 S.Ct. 2742; Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). If the defendant successfully does so, the burden of persuasion then shifts back to the plaintiff to “prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.” Burdine, 450 U.S. at 253, 101 S.Ct. 1089. (2) The first question that must be addressed is whether plaintiff demonstrates a prima facie case of discrimination. To establish a prima facie case of discrimination under the ADA, the plaintiff must show that: (1) the defendant employer is subject to the ADA; (2) the plaintiff suffers from a qualifying disability within the meaning of the ADA; (3) the plaintiff could perform the essential functions of the" }, { "docid": "7300327", "title": "", "text": "v. Green, 411 U.S. 792, 804, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under the McDonnell Douglas method of proof, the plaintiff bears the initial burden of establishing a prima facie case of discrimination. Bekker v. Humana Health Plan, Inc., 229 F.3d 662, 672 (7th Cir.2000), cert. denied, 121 S.Ct. 1603. The burden of production then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the employment action. Id. Finally, the burden shifts back to the plaintiff to prove that the employer’s articulated reason for the employment action was a pretext for discrimination and that the decision was in fact motivated by an unlawful factor. Id. Although the burden of production rests on the employer for the second stage of the McDonnell Douglas inquiry, “[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Because Tyler lacks direct evidence of discrimination, our analysis starts with the elements of a prima facie case. In order to establish a prima facie case of disability discrimination under the ADA, Tyler must show (1) that he is a “qualified individual with a disability,” (2) that his work performance met Ispat’s legitimate expectations, (3) that he suffered an adverse employment action, and (4) that his disability was the motivation for the adverse employment action. See Leffel v. Valley Fin. Servs., 113 F.3d 787, 794 (7th Cir.1997). Ispat does not dispute that Tyler’s mental illness constitutes a disability under the ADA and that his work performance was satisfactory, so we will assume he is a “qualified individual with a disability” under the Act. Ispat argues, however, that it took no adverse employment action against Tyler and that it reasonably accommodated his disability. We agree that Tyler suffered no adverse employment action. Although an adverse employment action “is defined quite broadly in this circuit,” not everything that makes an employee unhappy can form the basis of a federal discrimination suit. Smart v. Ball" } ]

[ { "docid": "18645602", "title": "", "text": "and, if such jurisdiction exists, whether the bankruptcy court abused its discretion by permitting the extension. 1. Statutory Bases In a Chapter 13 proceeding a creditor must file a proof of claim within ninety days of the first date set for the meeting of creditors. Bankr.R. 3002(c). The rule provides exceptions, but for those relevant here, the IRS must move for an extension within the permitted ninety days, which it did not do. Under Rule 3002(c), therefore, the IRS’s claim was untimely. Rule 3002(c), however, operates in conjunction with Bankr.R. 7015, which provides, in its entirety, “Rule 15 F.R.Civ.P. applies in adversary proceedings.” A claims proceeding may not be an adversary proceeding, but Bankr.R. 9014 extends Bankr.R. 7015 to “contested matters,” which include Unroe’s disputed claim. The bankruptcy rules therefore provide that a creditor may amend a claim if it meets Fed.R.Civ.P. 15(c)’s standard of arising out of a timely filed claim’s “conduct, transaction or occurrence.” Did the district court err in finding the requisite nexus between the 1982 and 1983 claims? We believe it did. The IRS’s position would permit the Service to file a claim for one tax year, and then, after the bar date, “amend” by right the claim to include any number of additional tax years. This would defeat the bankruptcy law’s purpose of affording the debtor, trustee and court timely notice of claims. Separate years imply separate tax claims under Bankr.R. 7015. Examples of amendments permitted under Bankr.R. 7015 would include correcting the amount of tax, penalties or interest claimed in a timely filed claim. Fed.R. Civ.P. 15(c) therefore does not rescue the tardy 1983 claim. 2. Equitable Bases Bankr.R. 7015 is not, however, the only possible authority for amendment. Another potential basis is the bankruptcy court’s broad equitable jurisdiction. Equity jurisdiction extends even to setting aside final confirmation of a plan. See In re Longardner & Assocs., Inc., 855 F.2d 455, 462 (7th Cir.1988), cert. denied, 489 U.S. 1015, 109 S.Ct. 1130, 103 L.Ed.2d 191 (1989). We find no case that specifically addresses the question of whether Bankr.R. 7015’s amendment procedure precludes a judge" } ]

[ { "docid": "18496244", "title": "", "text": "its entirety, “Rule 15 F.R.Civ.P. applies in adversary proceedings.” A claims proceeding may not be an adversary proceeding, but Bankr.R. 9014 extends Bankr.R. 7015 to “contested matters,” which include Unroe’s disputed claim. The bankruptcy rules therefore provide that a creditor may amend a claim if it meets Fed.R.Civ.P. 15(c)’s standard of arising out of a timely filed claim’s “conduct, transaction or occurrence.” Did the district court err in finding the requisite nexus between the 1982 and 1983 claims? We believe it did. The IRS’s position would permit the Service to file a claim for one tax year, and then, after the bar date, “amend” by right the claim to include any number of additional tax years. This would defeat the bankruptcy law’s purpose of affording the debtor, trustee and court timely notice of claims. Separate years imply separate tax claims under Bankr.R. 7015. Examples of amendments permitted under Bankr.R. 7015 would include correcting the amount of tax, penalties or interest claimed in a timely filed claim. Fed. R.Civ.P. 15(c) therefore does not rescue the tardy 1983 claim. 2. Equitable Bases Bankr.R. 7015 is not, however, the only possible authority for amendment. Another potential basis is the bankruptcy court’s broad equitable jurisdiction. Equity jurisdiction extends even to setting aside final confirmation of a plan. See, In re Longardner & Assocs., Inc., 855 F.2d 455, 462 (7th Cir.1988), cert. denied, 489 U.S. 1015 [109 S.Ct. 1130, 103 L.Ed.2d 191] (1989). We find no case that specifically addresses the question of whether Bankr.R. 7015’s amendment procedure precludes a judge from classifying a late-filed claim as an amendment on equitable principles. Bankruptcy courts appear split on the question. Compare, In re Miller, 90 Bankr. 317, 323 (Bankr.E.D.Tenn.1988) (must meet FRCP 15(c), despite ample notice to debt- or), aff'd., 118 Bankr. 76 (E.D.Tenn.1989), with, In re Bajac Construction Co., 100 Bankr. 524 (Bankr.E.D.Cal.1989) (relying on equities and applying broad “same generic origin” test). The question therefore is whether equity here trumps the time bar of Bankr.R. 3002(a), or whether the rule functions as statute of limitations. We think that Congress has supplied the answer. Unlike" }, { "docid": "8309353", "title": "", "text": "the conduct, transaction or occurrence that forms the basis of the claim asserted in the amendment.” In re Westgate-California Corp., 621 F.2d 983 (9th Cir.1980). Amendments are allowed “only where the original claim prompted notice to the court of the existence, nature, and amount of the [amended] claim.” In re International Horizons, 751 F.2d at 1217. An amendment adding a different type of tax to a timely claim generally does not relate back. See In re International Horizons; In re AM Int’l., 67 B.R. at 82. Here, the untimely escape property tax is of the same category as the timely property tax claim. Courts have differed on whether an amendment extending the tax period may relate back to a timely-filed claim. Courts have generally allowed untimely amendments concerning years following the timely-filed period. For instance, an untimely amendment for 1986 taxes related back to a timely-filed claim for 1984-85 taxes. In re Calisoff, 94 B.R. 1002 (Bankr.N.D.Ill.1988). Similarly, where the Chapter 13 plan proposed to pay all taxes in full, the court held that the IRS’ timely claim for 1973, 1974 and 1976 taxes gave notice that 1978-80 taxes would be claimed. Accordingly, the amendment related back. In re Simms, 40 B.R. 186 (Bankr.N.D.Ga.1984). In contrast, despite the IRS’ pre-bar date notice of the deficiency to the debtor, an untimely amendment adding 1981 taxes to a timely 1983 tax claim did not relate back. United States v. Owens, 84 B.R. 361 (E.D.Pa.1988). Here, the County timely filed a claim for 1987 post-petition taxes. This claim stated no facts which would give notice of the existence or amount of a pre-petition claim for 1984 taxes. The County did not style its untimely claim as an amendment. Finally, the County did not refer to the claim as an amendment in its pleadings. The Bankruptcy Rules provide mechanisms which protect a creditor that has not determined the extent of its claim. In re Fischer, 109 B.R. at 389. The County could have noted on its timely filed claim that the amount was uncertain. Under Rule 3003(c)(3), it could have requested an extension of" }, { "docid": "18496242", "title": "", "text": "In Unroe, a chapter 13 case, the debtor filed a plan listing both a 1982 and 1983 tax liability to the IRS. The bar date to file claims was January 6, 1987. The IRS filed a timely claim as to the 1982 taxes. However, as to the 1983 taxes, the IRS did not file a claim until March 12, 1987 styled as an “amendment” which asserted a priority claim for 1985 taxes. On January 20, 1988, the IRS filed a second “amendment” which corrected the date of the 1985 claim to 1983. On April 30, 1987, the Court confirmed the debtor’s plan which provided for the payment of the 1982 and 1983 taxes to the IRS. The debtor then objected to the “amended” 1983 claim as untimely. The Bankruptcy Court overruled the debtor’s objection (104 B.R. 77). The District Court affirmed. (119 B.R. 626). The Seventh Circuit affirmed the District Court and stated as follows: B. Filing of The IRS’s Untimely Claim Unroe argues that the claim should not be permitted because (i) it is barred by Bankr.R. 3002(c)’s ninety-day time limit; (ii) the bankruptcy and district courts misapplied the equitable factors of the Glamour Coat test; and (iii) it does not, in the words of Fed.R.Civ.P. 15(c), arise from the “same conduct, transaction or occurrence” as the timely 1982 claim. Because these arguments mix jurisdictional and substantive questions, we re-frame the inquiry along these lines: whether the amendment is authorized by statute and rule; whether the bankruptcy court possesses equitable jurisdiction to extend the ninety-day deadline; and, if such jurisdiction exists, whether the bankruptcy court abused its discretion by permitting the extension. 1. Statutory Bases In a Chapter 13 proceeding a creditor must file a proof of claim within ninety days of the first date set for the meeting of creditors. Bankr.R. 3002(c). The rule provides exceptions, but for those relevant here, the IRS must move for an extension within the permitted ninety-days, which it did not do. Under Rule 3002(c), therefore, the IRS’ claim was untimely. Rule 3002(c), however, operates in conjunction with Bankr.R. 7015, which provides, in" }, { "docid": "5450325", "title": "", "text": "amended claim simply alleges a higher amount owed by Kolstad for the same type of employment tax liability stated in Kolstad’s § 501(c) claim. Compare United States v. Owens, 84 B.R. 361 (E.D.Pa.1988) (1981 tax claim was “new and different” from 1983 tax year claim already filed by IRS) and In re Norris Grain Co., 81 B.R. 103 (Bankr.M.D.Florida 1987) (IRS not permitted to amend claim to add over $1 mil lion in corporate tax liability to previously filed claim for about $365 interest on prior return). Second, neither the creditors nor Kolstad could have been surprised by the amendment because Kolstad originally listed the tax debt as “disputed” and was negotiating with IRS about its amount shortly before he sought bankruptcy relief. Third, if IRS’s amended claim is correct, its allowance will not be unfair to other creditors, for they would have achieved an undeserved windfall from a denial of the amendment. Finally, although we are troubled that IRS delayed filing its amended claim until virtually the eve of the confirmation hearing, leading the debtor to propose a plan based on the lower amount of federal tax indebtedness, we assume that the able bankruptcy judge balanced this factor against others weighing in favor of the amendment. If IRS’s amendment is correct, then Kolstad seriously, if inadvertently, understated his employment tax liability and should not take unfair advantage of that fact in his reorganization efforts. Because the bankruptcy court had the power to permit IRS to amend Kolstad's § 501(c) federal tax claim, and he did not abuse his discretion in permitting the amendment, the judgments of the district and bankruptcy courts are AFFIRMED. . Rule 3004 states: If a creditor fails to file a proof of claim on or before the first date set for the meeting of creditors called pursuant to § 341(a) of the Code, the debtor or trustee may do so in the name of the creditor, within 30 days after expiration of the time for filing claims prescribed by Rule 3002(c) or 3003(c), whichever is applicable. The clerk shall forthwith mail notice of the filing" }, { "docid": "1074630", "title": "", "text": "allowed under Rule 15(c) if the claims arise out of different years, because separate years imply separate tax claims. Id. However, Unroe allowed amendment of the IRS’s claim under the bankruptcy court’s broad equitable jurisdiction. The opinion reasoned: Generously read, the court’s power to prevent ‘abuse of power’ includes bending the time requirements for ‘raising of an issue.' Equitable jurisdiction to permit amendments out-of-time does not conflict with, but rather fulfills, the statutory backdrop for bankruptcy proceedings. Id. Pursuant to that view, the opinion upheld the Bankruptcy Court decision which considered the following equitable factors in allowing amendment of the IRS claims: (i) Unroe was not unfairly surprised by the amendment, since her schedules and her original plan included 1983 taxes; (ii) unsecured creditors would receive a “windfall” if the claims were not allowed; (iii) the government would be deprived of funds to which it would be otherwise entitled. In re Unroe, 104 B.R. 77, 80 (Bankr.S.D.Ind.1989). The Seventh Circuit’s reasoning in Unroe certainly supplies authority to allow the IDR new claims to be deemed timely in light of the undisputed facts here. In support of Debtor’s position that late filed claims must not be allowed, he cites the more recent Seventh Circuit opinion in In re Stavriotis, 977 F.2d 1202 (7th Cir.1992). However, Stavriotis is distinguishable in many respects. In Stavriotis the IRS sought to amend its original claim in a Chapter 11 case, pursuant to Fed.R.Civ.P. 15. The Court reasoned that disposition of a motion to amend a proof of claim is within the sound discretion of the bankruptcy court, discretion not abused there by refusal to amend its claim. Id. at 1205. In Stavriotis, the bankruptcy court had disallowed the proposed amendment for several reasons: (1) The IRS’s original claim was only about $11,000.00; (2) The IRS sought to increase its claim to over $2 million; (3) other creditors would be harmed by such amendment; and (4) the IRS offered no explanation or excuse for its failure to notify the court and other parties of its intent to increase its claim. Id. In the present case, this" }, { "docid": "8170322", "title": "", "text": "from a surprise they reasonably could have protected against, but did not. Appellees argue strongly that the IRS could have, and should have, filed an amended “estimated” claim as soon as it received new information about the larger payroll figures. An amended estimate would still be an estimate. It might or might not be any more accurate than the original estimate, and it might lead creditors to rely more heavily on its accuracy than they should with an estimate. When the trustee did file the debtor’s actual returns, the IRS promptly calculated its new claim and provided it to the estate through the amended proof of claim. In disallowing the IRS’s amended proof of claim, the bankruptcy court relied on In re Stavriotis, 977 F.2d 1202 (7th Cir.1992). In Stavriotis, the IRS was denied' leave to amend its original proof of claim in a Chapter 11 case in order to increase the debtor’s tax liability for the given period from $11,132.93 to $2,435,078.39. However, we believe that the case at hand differs significantly from Stavriotis and is, therefore, distinguishable in two important ways. First, the original timely claim in Stavriotis was not designated as an estimate by the IRS. See id. at 1203. The taxpayer had filed returns for the period in question, and the IRS proof of claim was based on those returns. Id. The later amended proof of claim was based on an IRS audit, id., an event wholly within the control of the IRS, and an event much more likely to surprise a creditor who had relied on the amount of a previously filed IRS proof of claim based on completed tax returns. In the case before us, in contrast, the IRS filed its original claim as an estimate, effectively giving the trustee and creditors notice that the amount was subject to change. The IRS then waited for the taxpayer’s delinquent returns and promptly filed an amended claim after receiving those returns. Second, the difference in amount between the original timely claim and the later amended claim was substantially less in the case at hand, both as" }, { "docid": "18496249", "title": "", "text": "and broadly drafted factors of In re Miss Glamour Coat Co., Inc., [80—2 U.S. Tax Cus. Para. 9737, 46 AFTR2d 80-6083 (S.D.N.Y.1980) ] concluded that the IRS’s late claim should be permitted. We review under the abuse of discretion standard, In re International Horizons, Inc., 751 F.2d at 1216, but even so the IRS here presents few equities in its favor. The Service offered no explanation for its late filing. Unroe did nothing to merit disfavor in the eyes of the court. Only by a stretch can the 1983 claim be “related” to the 1982 claim. No evidence in the record explains or justifies the IRS’s delinquency. However, we find that the judge did not abuse his discretion in identifying factors that tilt the equitable balance in the IRS’s favor. Unroe was not caught unawares, since she included $15,000 in her plan for payment of taxes for 1982 and 1983. Moreover, the total of both the 1982 and 1983 claims was $10,914.21, more than $4,000 less than the $15,000 that Unroe had set forth on her schedule of liabilities. Unroe and the other creditors were therefore not unfairly surprised. The result may have been different had the late claim been unscheduled or exceeded the amount in the plan, in which cases the prejudice to the debtor and other creditors would have been more severe. III. Late filed claims, especially in the bankruptcy context, disrupt orderly discharge and should generally be barred. The amendment here was not permissible under Bankr.R. 7015. The bankruptcy court, however, considered appropriate factors in permitting the IRS to file its “amendment,” and we do not find an abuse of discretion. Id. at 348-351. (Footnote omitted). Looking specifically to the objection to confirmation filed by the creditor within the time provided by the bar date to file claims, this court finds a clear intent by the creditor at a minimum, to at least hold the debtor responsible for the payment of the debt to the extent of the fair market value of the collateral which was given as security by the Debtor to the creditor for the" }, { "docid": "1351558", "title": "", "text": "Int’l Horizons, Inc.), 751 F.2d 1213, 1216 (11th Cir.1985)). Examples of amendments permitted include a correction in “the amount of tax, penalties or interest claimed in a timely filed claim.” In re Unroe, 937 F.2d 346, 349 (7th Cir.1991). However, if the claim is a new claim, it will be disallowed. Milan Steel Fabricators, 113 B.R. at 367. Under the second prong, the court must perform an equitable analysis. McLean, 121 B.R. at 708; In re Leonard, 112 B.R. at 71. In McLean, the court set forth indicia to consider when balancing the equities, including: 1) whether there is undue prejudice to an opposing party, 2) whether there is bad faith or dilatory-behavior on the part of the claimant, 3) whether other creditors would receive a windfall were the amendment not allowed, 4) whether other claimants might be harmed or prejudiced, 5) whether there is justification for the inability to file the amended claim- at the time the original claim was filed. 121 B.R. at 708. See also Parsons, 135 B.R. at 285. It is undisputed that Claim 102, the original claim, was timely filed. Claim 102 sets forth the FUTA tax owed by the debtor for two tax periods, December 31, 1987 and December 31, 1988, and states at the bottom of the claim: “Estimated tax claims have been filed because the debtor has failed to file the return(s) for the estimated periods. As soon as the debtor files the return(s) with the I.R.S. as required by law, this claim will be adjusted as necessary.” The parties have agreed that the FUTA tax claims in Claim 102 will be allowed as administrative claims. It is undisputed that the FUTA tax for the tax period December, 1987 listed in Claim 107 is identical to that in Claim 102, therefore, it is only the FUTA tax sought for the tax period December, 1988 which the IRS seeks to amend. The FUTA tax listed in Claim 107, the amended claim, is for an identical tax period as the FUTA tax listed in Claim 102. The only difference between the FUTA tax claims" }, { "docid": "5450324", "title": "", "text": "amendments should be allowed to timely creditor claims but not to timely claims filed by debtors to obtain an advantage for themselves vis-a-vis nondischargeable creditors. One prominent treatise agrees. 8 Collier on Bankruptcy ¶ 3004.03 (15th ed. 1988). See also In re Frascatore, 98 B.R. 710, 722-23, n. 11 (Bankr.E.D.Pa.1989). In response, Kolstad contends that by allowing a timely creditor’s proof of claim to “supersede” that filed by a debtor, Rule 3004 impliedly negates a later-filed creditor “amendment.” This argument misinterprets the pertinent terms, however, for a “superseding” claim by its nature may include a broader spectrum of demands against the debtor than an “amendment,” which, as noted, must adjust or correct the terms of the claim originally filed. We conclude that the bankruptcy court had discretion to authorize IRS to amend Kolstad’s proof of claim for federal taxes. Whether the court abused its discretion is the next question before us, and we find no such abuse here. First, the principal concern of claims amendments, that no new claim be tardily asserted, is absent. IRS’s amended claim simply alleges a higher amount owed by Kolstad for the same type of employment tax liability stated in Kolstad’s § 501(c) claim. Compare United States v. Owens, 84 B.R. 361 (E.D.Pa.1988) (1981 tax claim was “new and different” from 1983 tax year claim already filed by IRS) and In re Norris Grain Co., 81 B.R. 103 (Bankr.M.D.Florida 1987) (IRS not permitted to amend claim to add over $1 mil lion in corporate tax liability to previously filed claim for about $365 interest on prior return). Second, neither the creditors nor Kolstad could have been surprised by the amendment because Kolstad originally listed the tax debt as “disputed” and was negotiating with IRS about its amount shortly before he sought bankruptcy relief. Third, if IRS’s amended claim is correct, its allowance will not be unfair to other creditors, for they would have achieved an undeserved windfall from a denial of the amendment. Finally, although we are troubled that IRS delayed filing its amended claim until virtually the eve of the confirmation hearing, leading the" }, { "docid": "18496261", "title": "", "text": "an informal proof of claim. ***** * An inflexible requirement that an informal proof state the amount of the claim appears inappropriate. Claims are defined so broadly in the Bankruptcy Code that there may be circumstances where it would be either impossible or purely speculative to set forth the precise amount of the claim prior to the bar date. See, e.g., In re White Motor Corp., 59 B.R. 286 (Bankr.N.D.Ohio 1986). Moreover, in the absence of prejudice to other interests, amendments after the bar date increasing the amount of a claim are freely allowed so long as the creditor is not seeking to assert a new claim. Fidelity and Deposit Co. of Maryland v. Fitzgerald (In re Midyett and May Construction Co.), 272 F.2d 121 (10th Cir.1959), cert. denied, 362 U.S. 919, 80 S.Ct. 669, 4 L.Ed.2d 738 (1960); Continental Motors Corp. v. Morris, 169 F.2d 315 (10th Cir.1948); In re Ungar, supra; In re Midwest Teleproductions Co., Inc., 69 B.R. 675 (Bankr.N.D.Ohio 1987); In re White Motor Corp., supra. As noted in Ungar, a requirement that an informal proof of claim state the amount of the claim is inconsistent with such cases. 70 B.R. at 523. Id. 93 B.R. at 132-34 (footnotes omitted). The Court concurs with the results reached in Ungar and Joiner. In addition, the recent case of In the Matter of Unroe, 937 F.2d 346, indicates that 11 U.S.C. § 105 grants this court an equitable basis to allow the objection to confirmation as a timely informal proof of claim, and to permit the same to be amended after the bar date. The Court noted in Unroe, that the debtor’s knowledge of the claim is a key component of a permissible, equitable amendment whereas Fed.R.Civ.P. 15(c), as made applicable by Bankr.R. 7015, focuses on the nexus between the original claim and the amendment. The Court noted that in Unroe the debtor’s plan anticipated the claim in question. Here, the Debtor’s original schedules filed on June 2, 1989, and as amended on October 16, 1989, both of which were filed prior to the bar date to file" }, { "docid": "18645607", "title": "", "text": "appears to rule out this possibility, but we have not had the benefit of briefs or argument on the issue. In addition, a bankruptcy court’s power to extend the bar date implies a corresponding power to permit late claims. A statute of limitation cannot be adjusted either before or after it expires. Here, Congress’s approval of an extendable deadline, see Bankr.R. 3002(c), distinguishes the bar date from a statute of limitation, indicating that the court’s equitable power includes authorization of late-filed claims. 3. The Court’s Equitable Holding The bankruptcy judge, applying the often cited and broadly drafted factors of In re Miss Glamour Coat Co., Inc., concluded that the IRS’s late claim should be permitted. We review under the abuse of discretion standard, In re International Horizons, Inc., 751 F.2d at 1216, but even so the IRS here presents few equities in its favor. The Service offered no explanation for its late filing. Unroe did nothing to merit disfavor in the eyes of the court. Only by a stretch can the 1983 claim be “related” to the 1982 claim. No evidence in the record explains or justifies the IRS’s delinquency. However, we find that the judge did not abuse his discretion in identifying factors that tilt the equitable balance in the IRS’s favor. Unroe was not caught unawares, since she included $15,000 in her plan for payment of taxes for 1982 and 1983. Moreover, the total of both the 1982 and 1983 claims was $10,914.21, more than $4,000 less than the $15,000 that Unroe had set forth on her schedule of liabilities. Un-roe and the other creditors were therefore not unfairly surprised. The result may have been different had the late claim been unscheduled or exceeded the amount in the plan, in which cases the prejudice to the debtor and other creditors would have been more severe. III. Late-filed claims, especially in the bankruptcy context, disrupt orderly discharge and should generally be barred. The amendment here was not permissible under Bankr.R. 7015. The bankruptcy court, however, considered appropriate factors in permitting the IRS to file its “amendment,” and we do" }, { "docid": "18645608", "title": "", "text": "to the 1982 claim. No evidence in the record explains or justifies the IRS’s delinquency. However, we find that the judge did not abuse his discretion in identifying factors that tilt the equitable balance in the IRS’s favor. Unroe was not caught unawares, since she included $15,000 in her plan for payment of taxes for 1982 and 1983. Moreover, the total of both the 1982 and 1983 claims was $10,914.21, more than $4,000 less than the $15,000 that Unroe had set forth on her schedule of liabilities. Un-roe and the other creditors were therefore not unfairly surprised. The result may have been different had the late claim been unscheduled or exceeded the amount in the plan, in which cases the prejudice to the debtor and other creditors would have been more severe. III. Late-filed claims, especially in the bankruptcy context, disrupt orderly discharge and should generally be barred. The amendment here was not permissible under Bankr.R. 7015. The bankruptcy court, however, considered appropriate factors in permitting the IRS to file its “amendment,” and we do not find an abuse of discretion. Affirmed. . At least one circuit has recently held section 1292(b) review unavailable in the bankruptcy context, Germain v. Connecticut Nat'l Bank, 926 F.2d 191 (2d Cir.1991) (no appellate interlocutory jurisdiction under section 1292(b) for review of district court interlocutory order or decision under section 158(a)), and the circuits disagree generally about the matter, see Capitol Credit Plan of Tenn., Inc. v. Shaffer, 912 F.2d 749, 752-54 (4th Cir.1990). . Fed.R.Civ.P. 15(c) provides in part: Relation Back of Amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. . The old Rules of Bankruptcy Procedure were in effect until August 1, 1983. . These are: 1. Whether the debtors and creditors relied upon the Government’s earlier proofs of claim or whether they instead had reason to know that subsequent proofs of claim would follow upon completion of" }, { "docid": "18509359", "title": "", "text": "keep that knowledge secret. If it does so, and later surprises the debtor or other creditors, it should not claim surprise if the bankruptcy court elects to deny the amendment. Because amendment was not required, the judgment of the district court is affirmed. . Whether or not the debtors knew of the ongoing audit was disputed, as is the meaning of a November 20, 1986, IRS letter sent to the debtors. That letter read \"[w]e are pleased to tell you that after further consideration of your tax returns for the above periods [1981, 1983, and 1984], we have accepted them as filed” (Appellant's App. 146). . Below the government sought permission of its amendment under Rule 15 and under the equitable principles set forth in In re Miss Glamour Coat, 46 A.F.T.R.2d (P-H) 6083 (S.D.N.Y.1980). However, it has not raised that latter issue in this court with respect to the 1981 taxes, and its brief argument for that issue with respect to the 1982 taxes is without merit. . If the bankruptcy court elects to permit the amended proof of claim under Rule 15(a), that amended claim does relate back to the original claim as long as the amendment concerns the same kind of tax for the same tax year. F.R.Civ.P. 15(c), the other portion of Rule 15 relevant to this proceeding, states in relevant part: “Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.” Applying this transaction or occurrence analysis to this case, we immediately reject the government’s claim that the new 1982 tax claim for $14,445.35 relates back to the original $11,-329.93 proof of claim for 1981 and 1984 taxes. As this Court clearly stated in Unroe, 937 F.2d 346, just last year, \"Separate years imply separate tax claims under Bankr.R. 7015.” Id. at 349. Therefore a claim for 1982 taxes does not relate back to an original claim for 1981 and 1984 taxes. However, the" }, { "docid": "215809", "title": "", "text": "favor of extending the bar date. The reason for the delay in filing was a continuing audit of Pettibone’s tax liabilities over a period of 13 years. Pettibone’s liability for these years was a hotly contested dispute involving many complex issues. The IRS was not dilatory in its actions, and new claims were issued as the audit continued and the IRS position developed. Furthermore, Pettibone was made aware of the IRS plan to file future claims from the notice typed on claim 1-22 and subsequent claims. See Finding of Fact, supra at ¶ 3. Pettibone has not presented any evidence to suggest that it was unfairly prejudiced or surprised by this delay. Therefore, the Court shall grant the IRS motion to enlarge the time for it to file its claim. - 5. This ruling is further supported by In re Unroe, 937 F.2d 346 (7th Cir.1991). In Unroe, the IRS filed a proof of claim prior to the bar date for 1982 taxes and penalties. It then filed two proofs of claims after the bar date for 1983 taxes and penalties. The Seventh Circuit held that late filed claims may be allowed either as amendments under Fed.R.Bankr.P. 7015 (Fed.R.Civ.P. 15) or pursuant to the Bankruptcy Court’s exercise of equitable discretion under 11 U.S.C. § 105(a). Id. at 349. See also In re Stavriotis, 977 F.2d 1202 (7th Cir.1992) (“disposition of a motion to amend a proof of claim falls within the sound discretion of the bankruptcy court”). The court further cited In re Miss Glamour Coat Co., Inc., 80-2 U.S.T.C. ¶ 19,737 (S.D.N.Y.1980) for standards to guide this discretion: 1. Whether the debtors and creditors relied upon the Government’s earlier proofs of claim or whether they instead had reason to know that subsequent proofs of claim would follow upon completion of audit; 2. Whether the other creditors would receive a windfall to which they are not entitled on the merits by the court not allowing this amendment to the IRS’ proof of claim; 3. Whether the IRS intentionally or negligently delayed in the filing the proof of claim stating the" }, { "docid": "18496250", "title": "", "text": "her schedule of liabilities. Unroe and the other creditors were therefore not unfairly surprised. The result may have been different had the late claim been unscheduled or exceeded the amount in the plan, in which cases the prejudice to the debtor and other creditors would have been more severe. III. Late filed claims, especially in the bankruptcy context, disrupt orderly discharge and should generally be barred. The amendment here was not permissible under Bankr.R. 7015. The bankruptcy court, however, considered appropriate factors in permitting the IRS to file its “amendment,” and we do not find an abuse of discretion. Id. at 348-351. (Footnote omitted). Looking specifically to the objection to confirmation filed by the creditor within the time provided by the bar date to file claims, this court finds a clear intent by the creditor at a minimum, to at least hold the debtor responsible for the payment of the debt to the extent of the fair market value of the collateral which was given as security by the Debtor to the creditor for the debt. In addition, the objection to confirmation must be viewed in conjunction with the entire record of this chapter 13 case. The Court takes judicial notice of the following regarding the creditor’s objection to confirmation filed on September 21, 1989, which the creditor seeks to have treated as a timely informal proof of claim: 1. The objection was in writing. 2. The objection was properly filed with the Clerk of this Court. 3. The objection was filed prior to the bar date to file formal proofs of claim. 4. The objection refers to the creditor as a “secured creditor of the debt- or(s)”. 5. The objection states, “That the fair market value of the Gainer Bank, National Association collateral is greater than alleged by the Debtors.” In addition, the Court concludes it must view the entire record in light of this objection. Although, the case law is clear that neither the debtor’s plan nor his schedules, standing alone, can constitute an informal claim by the creditor, the Court can perceive no reason why the objection" }, { "docid": "18509361", "title": "", "text": "result with respect to the 1981 amendment for $2,435,078.39 is less obvious. The bankruptcy court held that under Rule 15’s transaction and occurrence theory the government's proposed amendment did not relate back to its original claim because the taxes sought in the amended claim based on disallowed deductions were “sufficiently dissimilar from the taxes claimed in the original proof of claim” (App. 5). The government counters that because its original and amended claims both involved the same type of tax, individual income tax, for the same tax year, 1981, they therefore arise out of the same conduct, transaction or occurrence. We agree. See Unroe, 937 F.2d at 349; Commissioner v. Sunnen, 333 U.S. 591, 598, 68 S.Ct. 715, 719, 92 L.Ed. 898 (1947) (stating that income taxes are levied on an annual basis and \"each year is the origin of a new liability and a separate cause of action” for purposes of res judica-ta). The second proof of claim sought a tax payment different only in amount from the first. Granted, that difference in amount was drastic, but while the disparity is relevant to equitable considerations such as prejudice under Rule 15(a), it does not negate the fact that both claims arose from the same transaction. Fidelity and Deposit Co. of Maryland v. Fitzgerald, 272 F.2d 121, 130 (10th Cir.1959) (stating that \"[a] change in the amount of the claim does not make it a new and different claim\"), certiorari denied, 362 U.S. 919, 80 S.Ct. 669, 4 L.Ed.2d 738. Because the amendment arose from the same transaction as the original claim, had the bankruptcy court permitted the amendment, it would have met Rule 15(c) standards for relation back. FLAUM, Circuit Judge. I respectfully dissent. In my judgment, the bankruptcy judge abused his discretion by not allowing the government to amend its claim. Leave to amend is to be given freely, according to both the rule (Fed.R.Civ.P. 15(a)) and the case law (Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); Eades v. Thompson, 823 F.2d 1055, 1062-63 (7th Cir.1987)). As the majority explains" }, { "docid": "18509360", "title": "", "text": "permit the amended proof of claim under Rule 15(a), that amended claim does relate back to the original claim as long as the amendment concerns the same kind of tax for the same tax year. F.R.Civ.P. 15(c), the other portion of Rule 15 relevant to this proceeding, states in relevant part: “Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.” Applying this transaction or occurrence analysis to this case, we immediately reject the government’s claim that the new 1982 tax claim for $14,445.35 relates back to the original $11,-329.93 proof of claim for 1981 and 1984 taxes. As this Court clearly stated in Unroe, 937 F.2d 346, just last year, \"Separate years imply separate tax claims under Bankr.R. 7015.” Id. at 349. Therefore a claim for 1982 taxes does not relate back to an original claim for 1981 and 1984 taxes. However, the result with respect to the 1981 amendment for $2,435,078.39 is less obvious. The bankruptcy court held that under Rule 15’s transaction and occurrence theory the government's proposed amendment did not relate back to its original claim because the taxes sought in the amended claim based on disallowed deductions were “sufficiently dissimilar from the taxes claimed in the original proof of claim” (App. 5). The government counters that because its original and amended claims both involved the same type of tax, individual income tax, for the same tax year, 1981, they therefore arise out of the same conduct, transaction or occurrence. We agree. See Unroe, 937 F.2d at 349; Commissioner v. Sunnen, 333 U.S. 591, 598, 68 S.Ct. 715, 719, 92 L.Ed. 898 (1947) (stating that income taxes are levied on an annual basis and \"each year is the origin of a new liability and a separate cause of action” for purposes of res judica-ta). The second proof of claim sought a tax payment different only in amount from the first. Granted, that difference in amount" }, { "docid": "18496243", "title": "", "text": "barred by Bankr.R. 3002(c)’s ninety-day time limit; (ii) the bankruptcy and district courts misapplied the equitable factors of the Glamour Coat test; and (iii) it does not, in the words of Fed.R.Civ.P. 15(c), arise from the “same conduct, transaction or occurrence” as the timely 1982 claim. Because these arguments mix jurisdictional and substantive questions, we re-frame the inquiry along these lines: whether the amendment is authorized by statute and rule; whether the bankruptcy court possesses equitable jurisdiction to extend the ninety-day deadline; and, if such jurisdiction exists, whether the bankruptcy court abused its discretion by permitting the extension. 1. Statutory Bases In a Chapter 13 proceeding a creditor must file a proof of claim within ninety days of the first date set for the meeting of creditors. Bankr.R. 3002(c). The rule provides exceptions, but for those relevant here, the IRS must move for an extension within the permitted ninety-days, which it did not do. Under Rule 3002(c), therefore, the IRS’ claim was untimely. Rule 3002(c), however, operates in conjunction with Bankr.R. 7015, which provides, in its entirety, “Rule 15 F.R.Civ.P. applies in adversary proceedings.” A claims proceeding may not be an adversary proceeding, but Bankr.R. 9014 extends Bankr.R. 7015 to “contested matters,” which include Unroe’s disputed claim. The bankruptcy rules therefore provide that a creditor may amend a claim if it meets Fed.R.Civ.P. 15(c)’s standard of arising out of a timely filed claim’s “conduct, transaction or occurrence.” Did the district court err in finding the requisite nexus between the 1982 and 1983 claims? We believe it did. The IRS’s position would permit the Service to file a claim for one tax year, and then, after the bar date, “amend” by right the claim to include any number of additional tax years. This would defeat the bankruptcy law’s purpose of affording the debtor, trustee and court timely notice of claims. Separate years imply separate tax claims under Bankr.R. 7015. Examples of amendments permitted under Bankr.R. 7015 would include correcting the amount of tax, penalties or interest claimed in a timely filed claim. Fed. R.Civ.P. 15(c) therefore does not rescue the tardy" }, { "docid": "215810", "title": "", "text": "date for 1983 taxes and penalties. The Seventh Circuit held that late filed claims may be allowed either as amendments under Fed.R.Bankr.P. 7015 (Fed.R.Civ.P. 15) or pursuant to the Bankruptcy Court’s exercise of equitable discretion under 11 U.S.C. § 105(a). Id. at 349. See also In re Stavriotis, 977 F.2d 1202 (7th Cir.1992) (“disposition of a motion to amend a proof of claim falls within the sound discretion of the bankruptcy court”). The court further cited In re Miss Glamour Coat Co., Inc., 80-2 U.S.T.C. ¶ 19,737 (S.D.N.Y.1980) for standards to guide this discretion: 1. Whether the debtors and creditors relied upon the Government’s earlier proofs of claim or whether they instead had reason to know that subsequent proofs of claim would follow upon completion of audit; 2. Whether the other creditors would receive a windfall to which they are not entitled on the merits by the court not allowing this amendment to the IRS’ proof of claim; 3. Whether the IRS intentionally or negligently delayed in the filing the proof of claim stating the amount of taxes due; 4. The justification, if any, for the failure of the IRS to file for a time extension for the submission of further proofs of claim pending an audit; and 5. Whether there are any other considerations that should be taken into account in assuring a just and equitable result. Unroe, 937 F.2d at 350 n. 4. However, the court added this caveat, Recitation of the Glamour Coat Co. factors could, we note, justify nearly any outcome a bankruptcy judge desires. A bankruptcy court’s exercise of equity in this context must include identification of factors related to the debtor’s notice of a pending claim or excusable neglect by the creditor. Id. at 350 n. 5. 6. In this case, Pettibone clearly knew that further claims were coming from the IRS pending the audit. Indeed, Pettibone was actively involved in the dispute over its tax liability long after the bar date had expired. There is no evidence to suggest that other creditors would be prejudiced. Furthermore, all but a tiny portion of the" }, { "docid": "1074629", "title": "", "text": "that an exercise of section 105 power be tied to another Bankruptcy Code section and not merely to a general bankruptcy concept or objective.” 2 Collier on Bankruptcy, ¶ 105.01 at 105-4 (15th ed. 1992). The Seventh Circuit has reserved the question of whether a Bankruptcy Court may properly use its equitable powers to allow the filing of late claims in a Chapter 13 case. In re Unroe, 937 F.2d 346, 350 (7th Cir.1991). Unroe did hold, however, that the Bankruptcy Court could consider equitable matters outside the scope of Fed.R.Civ.P. 15 when deciding to allow a late filed claim as an amendment to an earlier filed, timely claim. Id. at 349-50. In Unroe, the IRS sought to amend a tardy claim to a timely filed claim pursuant to Fed. R.Civ.P. 15(c). The Court reasoned that the IRS may amend a claim if it meets the Rule 15(c) standard of arising out of the same conduct, transaction or occurrence as a timely filed claim. Id. The Court further reasoned that amendment of claims is not allowed under Rule 15(c) if the claims arise out of different years, because separate years imply separate tax claims. Id. However, Unroe allowed amendment of the IRS’s claim under the bankruptcy court’s broad equitable jurisdiction. The opinion reasoned: Generously read, the court’s power to prevent ‘abuse of power’ includes bending the time requirements for ‘raising of an issue.' Equitable jurisdiction to permit amendments out-of-time does not conflict with, but rather fulfills, the statutory backdrop for bankruptcy proceedings. Id. Pursuant to that view, the opinion upheld the Bankruptcy Court decision which considered the following equitable factors in allowing amendment of the IRS claims: (i) Unroe was not unfairly surprised by the amendment, since her schedules and her original plan included 1983 taxes; (ii) unsecured creditors would receive a “windfall” if the claims were not allowed; (iii) the government would be deprived of funds to which it would be otherwise entitled. In re Unroe, 104 B.R. 77, 80 (Bankr.S.D.Ind.1989). The Seventh Circuit’s reasoning in Unroe certainly supplies authority to allow the IDR new claims to be deemed" } ]

[ { "docid": "12850963", "title": "", "text": "in the discharge of its regulatory duties and in its dealings with the public, but hidden behind a veil of privilege because it is not designated as “formal,” “binding,” or “final.” 617 F.2d at 867, citing Sterling Drug, Inc. v. FTC, 450 F.2d 698, 708 (D.C.Cir.1971); Schwartz v. IRS, 511 F.2d 1303, 1305 (D.C. Cir.1975); Ash Grove Cement Co. v. FTC, 511 F.2d 815, 818 (D.C.Cir.1975). Sterling Drug explains the rationale that underlies these decisions: [T]he policy of promoting the free flow of ideas within the agency does not apply here, for private transmittals of binding agency opinions and interpretations should not be encouraged. These are not the ideas and theories which go into the making of the law, they are the law itself, and as such should be made available to the public. Thus, to prevent the development of secret law within the Commission, we must require it to disclose orders and interpretations which it actually applies in cases before it. We are impelled by the logic of Coastal States and its antecedents to rule for Schlefer on his FOIA request. The Maritime Administration has failed to refute Schlefer’s well-documented claims that, in practice, CCOs are authoritative Agency decisions in the cases to which they are addressed and that, in practice, CCOs also guide subsequent Agency rulings. The record solidly supports the view that CCOs and their summaries are “statements of policy and interpretations which have been adopted by the agency,” 5 U.S.C. § 552(a)(2), not “intra-agency advisory opinions,” NLRB v. Sears, Roebuck & Co., supra, 421 U.S. at 149, 95 S.Ct. at 1515, that fall within Exemption 5. III. The Attorney-Client Privilege The Maritime Administration argues that the attorney-client privilege provides an independent ground for exempting from FOIA disclosure communications from the Chief Counsel to requesting officials. The attorney-client privilege in federal courts protects communications from attorney to client to avoid the risk of inadvertent, indirect disclosure of the client’s confidences. Mead Data, supra, 566 F.2d at 254 n. 25. The privilege operates when 1) the communication from attorney to client is confidential, and 2) the communication is" } ]

[ { "docid": "2610743", "title": "", "text": "or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency. 5 U.S.C. § 552(b)(5). Given the literal language of Exemption 5, it is not surprising that the courts have construed this exemption to encompass the protections traditionally afforded certain documents pursuant to evidentiary privileges in the civil discovery context. The courts have recognized that Exemption 5 protects, as a general rule, materials which would be protected under the attorney-client privilege, Mead Data Central, 184 U.S.App.D.C. at 360-363, 566 F.2d at 252-255; the attorney work-product privilege, NLRB v. Sears, 421 U.S. at 154, 95 S.Ct. at 1518, Bristol-Myers Co. v. FTC, 194 U.S.App.D.C. 99, 598 F.2d 18 (1978); or the executive “deliberative process” privilege, EPA v. Mink, 410 U.S. [73] at 85-90, 93 S.Ct. [827] at 835-837 [35 L.Ed.2d 119]; Vaughn v. Rosen, 173 U.S. App.D.C. 187, 523 F.2d 1136 (1975) (Vaughn II). Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 862 (D.C.Cir.1980). See also NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149, 95 S.Ct. 1504, 1515, 44 L.Ed.2d 29 (1975); and Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U.S. 168, 184, 95 S.Ct. 1491, 1500, 44 L.Ed.2d 57 (1975). Of these privileges recognized under section (b)(5) of FOIA, the only privilege claimed by appellants, and considered by the court below, was the “deliberative process” privilege, sometimes called the “executive” or “governmental” privilege. The deliberative process privilege protects “confidential intra-agency advisory opinions . .. disclosure of which would be injurious to the consultative functions of government.” Sears, 421 U.S. at 149, 95 S.Ct. at 1516 (citations omitted). As was recently noted by Judge Wald in Coastal States, the deliberative process privilege is “unique to government” and has a number of purposes: it serves to assure that subordinates within an agency will feel free to provide the decision-maker with their uninhibited opinions and recommendations without fear of later being subject to public ridicule or criticism; to protect against premature disclosure of proposed policies before they have been finally formulated or adopted; and" }, { "docid": "2610748", "title": "", "text": "withholding of all papers which reflect the agency’s group thinking in the process of working out its policy and determining what its law shall be.” Davis, The Information Act: A Preliminary Analysis, 34 U.Chi.L. Rev. 761, 797 (1967); Note, Freedom of Information Act and the Exemption for Intra-Agency Memoranda, 86 Harv.L. Rev. 1047 (1973). Sears, 421 U.S. at 153, 95 S.Ct. at 1517. While the predecisional/post-decisional dichotomy is useful as a starting point in distinguishing documents that are privileged from documents that are not, we must be careful not to lose sight of the primary thrust of the exemption in making these distinctions. Predecisional documents are not exempt merely because they are predecisional; they must also be part of the deliberative process by which a decision is made. Mead Data Central, Inc. v. United States Department of Air Force, 566 F.2d 242, 257 (D.C.Cir.1977); Vaughn v. Rosen (Vaughn II), 523 F.2d 1136, 1144 (D.C.Cir.1975). See also Coastal States, 617 F.2d at 869. Moreover, a document that is predecisional at the time of preparation may lose exempt status if “adopted, formally or informally, as the agency position on an issue or is used by the agency in its dealings with the public.” Coastal States, 617 F.2d at 866. See also Sears, 421 U.S. at 161, 95 S.Ct. at 1521. In analyzing any document for which protection against disclosure is sought under the deliberative process privilege in Exemption 5, it is well to recall the words of the Court in Sears: [T]he public is vitally concerned with the reasons which did supply the basis for an agency policy actually adopted. These reasons, if expressed within the agency, constitute the “working law” of the agency and have been held by the lower courts to be outside the protection of Exemption 5 .... This conclusion is powerfully supported by the other provisions of the Act. The affirmative portion of the Act, expressly requiring indexing of “final opinions,” “statements of policy and interpretations which have been adopted by the agency,” and “instructions to staff that affect a member of the public,” 5 U.S.C. § 552(a)(2)," }, { "docid": "15457935", "title": "", "text": "the “frank discussion of legal and policy issues.” S.Rep. No. 813, 89th Cong., 1st Sess. 9 (1965); see also H.R.Rep. No. 1497, 89th Cong., 2d Sess. 10 (1966), U.S.Code Cong. & Admin.News 1966 p. 2418. In other words, the privilege “rest[s] ... upon the policy of protecting the ‘decision-making processes of government agencies.’ ” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150, 95 S.Ct. 1504, 1516, 44 L.Ed.2d 29 (1975) (quoting Tennessean Newspapers, Inc. v. FHA, 464 F.2d 657, 660 (6th Cir.1972)); see also Mead Data Cent., 566 F.2d at 256 (“Exemption five is intended to protect the deliberative process of government and not just deliberative material” (citation omitted)). However, in accordance with the general disclosure policy of FOIA, Exemption 5 is to be construed “as narrowly as consistent with efficient Government operation.” S.Rep. No. 813, supra, at 9. Thus, the Supreme Court has limited the deliberative process privilege to materials which are both predecisional and deliberative. EPA v. Mink, 410 U.S. 73, 88, 93 S.Ct. 827, 836, 35 L.Ed.2d 119 (1973). Accordingly, the Supreme Court and this court require disclosure of documents which explain an agency’s final decision but protect documents which are predecisional. Renegotiation Bd. v. Grumman Aircraft, 421 U.S. 168, 184-85, 95 S.Ct. 1491, 1500-01, 44 L.Ed.2d 57 (1975); Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854 (D.C.Cir.1980). In the instant case, the materials are unquestionably predecisional. This case turns, therefore, on whether or not the information requested is deliberative — that is “whether it reflects the give-and-take of the consultative process.” Coastal States, 617 F.2d at 866; see also Sears, 421 U.S. at 150, 95 S.Ct. at 1516 (privilege focuses on documents which reflect process by which governmental decisions and policies are formulated). It is not possible to resolve whether the information is deliberative by characterizing it, as plaintiffs do, as merely involving a factual request for dates and titles. Exemption 5 disputes can often be resolved by the simple test that factual material must be disclosed but advice and recommendations may be withheld. Mead Data Cent., 566 F.2d at 256." }, { "docid": "476725", "title": "", "text": "pursuant to evidentiary privileges in the civil discovery context,” including “materials which would be protected under the attorney-client privilege, the attorney work-product privilege, or the executive ‘deliberative process privilege.” Taxation With Representation Fund v. IRS, 646 F.2d 666, 676 (D.C.Cir.1981) (“TWRF”) (citations omitted). See also Tax Analysts, 294 F.3d at 76. The deliberative process privilege covers “documents reflecting advisory-opinions, recommendations and deliberations comprising part of a process by which governmental decisions and polices are formulated.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132 150, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975). In contrast, final statements of agency policy or statements explaining actions already taken by an agency are not protected by the deliberative process privilege. Tax Analysts, 294 F.3d at 80. Three policy purposes constitute the basis for this privilege: (1) to encourage open, frank discussions on matters of policy between subordinates and superiors; (2) to protect against premature disclosure of proposed policies before they are finally adopted; and (3) to protect against the public confusion that might result from disclosure of reasons and rationales that were not in fact ultimately the grounds for an agency’s action. See Coastal States, 617 F.2d at 866. “The deliberative process privilege protects agency documents that are both predecisional and deliberative.” Judicial Watch, Inc., v. FDA 449 F.3d 141, 151 (D.C.Cir.2006). To invoke the privilege, the document must both be (1) predecisional in that it was “generated before the adoption of agency policy” and (2) deliberative in that it “reflects the give-and-take of the consultative process.” Coastal States, 617 F.2d at 866; see also Tax Analysts v. IRS, 117 F.3d 607, 616 (D.C.Cir.1997); Judicial Watch, Inc., v. Dep’t of Energy, 412 F.3d 125, 129 (D.C.Cir.2005). “In other words, it protects ‘predecisional communications’ reflecting an agency’s internal deliberations, but not communications that explain a decision that has already been made.’ ” Tax Analysts, 294 F.3d at 80 (quoting Sears, 421 U.S. at 151-52, 95 S.Ct. 1504, 44 L.Ed.2d 29). “The exemption thus covers recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy" }, { "docid": "6188750", "title": "", "text": "in a particular case, it is necessary to consider the agency’s decisionmaking mechanisms and the documents’ significance within that structure. Taxation With Representation, 646 F.2d at 678-81; Coastal States, 617 F.2d at 868-69. At TVA, the three-member Board of Directors has the authority to set agency policy and to act on behalf of the agency, including the power to contract, to settle claims, and to litigate. The staff is responsible for coordinating and developing recommendations through the General Manager, and TVA’s General Counsel provides the Board with legal advice. Here, the documents in question were all written by staff members and agency counsel who were involved in resolving Zurn’s contract claims but did not themselves have authority to settle them. See Taxation With Representation, 646 F.2d at 680. All fourteen documents are predecisional — they were written after TVA decided to wind down its cooling tower projects but before the Board voted to approve the $17.5 million settlement recommendation. Plaintiff’s assertion that TVA made interim decisions while negotiating with Zurn, and therefore that some of the documents were “post-decisional,” represents an artificial effort to segment the continuous process of settlement and lacks support in the record. Similarly, its argument that two documents dated October 28, 1981, and September 28, 1981, (Items 10 and 12 of the Index), are post-decisional because they concern the decision to defer construction — first announced August 19, 1981 — rather than settlement itself, also fails, because TVA had not reached a final decision and retained the option of completing construction rather than settling. See NLRB v. Sears, 421 U.S. at 151-53, 95 S.Ct. at 1516-18; Mead Data Central, Inc. v. Department of the Air Force, 575 F.2d 932, 936-37 (D.C.Cir.1978). It further appears that the documents in question qualify as “deliberative.” All are intra-agency memoranda containing staff evaluations, recommendations, proposals, and suggestions concerning the Zurn settlement process. Discussion among agency personnel about the relative merits of various positions which might be adopted in contract negotiations are as much a part of the deliberative process as the actual recommendations and advice which are agreed upon. As" }, { "docid": "2610745", "title": "", "text": "to protect against confusing the issues and misleading the public by dissemination of documents suggesting reasons and rationales for a course of action which were not in fact the ultimate reasons for the agency’s action. 617 F.2d at 866. See also Jordan v. U. S. Dep’t of Justice, 591 F.2d 753, 772-774 (D.C. Cir.1978) (en banc). Thus, the privilege protects documents reflecting advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated, as well as other subjective documents that reflect the personal opinions of the writer prior to the agency’s adoption of a policy. See Sears, 421 U.S. at 150, 95 S.Ct. at 1516; Coastal States, 617 F.2d at 866. Notwithstanding these significant policy considerations underscoring the necessity that materials reflecting the deliberative process be protected, this exception to the general disclosure mandate of FOIA should be construed “as narrowly as consistent with efficient Government operation.” EPA v. Mink, 410 U.S. 73, 87, 93 S.Ct. 827, 836, 35 L.Ed.2d 119 (1973) (quoting from legislative analysis and discussions of Exemption 5, S.Rep.No. 813, p. 9). See also Coastal States, 617 F.2d at 862. Thus, the courts have developed over the years certain specific limitations regarding the types of documents that are protected by the deliberative process privilege. B. “Predecisional” Versus “Post-Decisional” Documents and Inquiries Concerning the “Working Law of the Agency\" Exemption 5 does not apply to final agency actions that constitute statements of policy or final opinions that have the force of law, or which explain actions that an agency has already taken. Ryan v. Department of Justice, 617 F.2d 781, 790-91 (D.C.Cir.1980); Sears, 421 U.S. at 153-54, 95 S.Ct. at 1517-18 (1975). See also Brinton v. Department of State, 636 F.2d 600 at 604-605. (D.C.Cir.1980). Nor does Exemption 5 protect communications that implement an established policy of an agency. Brinton, supra, at 605. This latter limitation on Exemption 5 grew out of the Supreme Court’s approval in Sears of the distinction drawn by lower courts between “predecisional communications, which are privileged, and communications made after the decision and designed to explain" }, { "docid": "6188753", "title": "", "text": "status. Nor do they constitute a body of “secret law,” Coastal States, 617 F.2d at 867, either in the sense that they controlled the resolution of Zurn’s claim or in the sense that they may be used as “precedent” for other TVA decisions. See Schlefer v. United States, 702 F.2d 233, 244 (D.C.Cir.1983). It is clear, rather, that the fourteen documents sought “are directed at a very specific decision,” Mead Data, 575 F.2d at 935, and it is unlikely that they could in any way “embody the agency’s effective law and policy.” ITT World Communications v. FCC, 699 F.2d 1219, 1236 (D.C.Cir.), cert. granted, - U.S. -, 104 S.Ct. 334, 77 L.Ed.2d-(1983), quoting NLRB v. Sears, 421 U.S. at 153, 95 S.Ct. at 1517. Cf. Schlefer, supra (indexed opinions of Maritime Administration’s chief counsel not exempt); Taxation With Representation, 646 F.2d 666 (D.C.Cir.1981) (certain IRS records not exempt). Disclosure of these documents would be “injurious to the consultative functions of government that the privilege . .. protects.” EPA v. Mink, 410 U.S. at 87, 93 S.Ct. at 836. If government employees expected that every written recommendation, cost analysis, or feasibility opinion — as well as the criteria used in. reaching the same— would be the object of intense scrutiny by the party adversely affected thereby, they would be likely only to communicate orally and/or conclusionally. The cost of such an eventuality in terms of efficiency and quality of decisionmaking could be great indeed. Mead Data, 575 F.2d at 936. TVA’s ability to function as an independent corporate entity, which inevitably includes negotiating and settling contract claims, would be seriously undermined if the internal documents reflecting its employees’ thought processes were subject to disclosure. In addition to interfering with TVA’s statutory mandate to operate like a “private business corporation,” H.R.Rep. No. 130, 73d Cong., 1st Sess. 19 (1933), revealing such documents would decrease the likelihood that future claims against TVA will be resolved by negotiation rather than by litigation, and would therefore defeat the public policy which favors compromise over confrontation. Williams v. First National Bank, 216 U.S. 582, 595, 30" }, { "docid": "8822747", "title": "", "text": "to a party other than an agency in litigation with the agency.’” Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001) (quoting 5 U.S.C. § 552(b)(5)). “To qualify, a document must thus satisfy two conditions: its source must be a Government agency, and it must fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds it.” Id. The privileges that are incorporated into Exemption 5 include the deliberative process privilege, the attorney work-product privilege, and the attorney-client communications privilege. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975). Here, defendant asserts the deliberative process privilege. The deliberative process privilege’s purpose is to “prevent injury to the quality of agency decisions.” NLRB, 421 U.S. at 151, 95 S.Ct. 1504. The privilege applies to records that the government demonstrates to be both “predecisional” — i.e., “generated before the adoption of an agency policy” — and “deliberative,” — i.e., “reflective of] the give-and-take of the consultative process.” Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C.Cir.1980). To demonstrate that a document is predecisional, the burden is on the agency to “establish[] what deliberative process is involved, and the role played by the documents in issue in the course of that process.” Id. at 868. The “deliberative” requirement renders Exemption 5 inapplicable to purely factual materials, or factual portions of otherwise deliberative documents. E.g., EPA v. Mink, 410 U.S. 73, 91, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973); Coastal States, 617 F.2d at 867. Moreover, “[d]raft documents, by their very nature, are typically predecisional and deliberative,” Exxon Corp. v. Dep’t of Energy, 585 F.Supp. 690, 698 (D.D.C.1983), and these documents’ role in the deliberative process are adequately described by Hardy. According to Hardy, the drafts for which defendant asserts Exemption 5 were created for internal purposes only. (Sixth Hardy Deck ¶ 50.) De fendant has produced partially redacted copies to plaintiff, and plaintiff concedes that he has access to" }, { "docid": "6188748", "title": "", "text": "arrived at a final contract settlement which called for a payment by TVA of approximately $17.5 million. Zurn and plaintiff are now engaged in arbitration under their subcontract. TVA is not a party to that proceeding, but cooperated with Zurn’s efforts to obtain a confidentiality agreement before releasing any documents relating to its negotiations and settlement pursuant to plaintiff’s October 1982 Freedom of Information Act request. A number of documents have been released and TVA has filed an index of the documents it is withholding under its Exemption 5 claim. All of the documents withheld were written between August 19, 1981, when TVA instructed Zurn to begin its winddown, and September 22, 1982, when TVA’s Board of Directors approved the settlement. The Deliberative Process Privilege The deliberative process privilege is intended to safeguard the quality of decisionmaking by facilitating frank discussions through the assurance of confidentiality. NLRB v. Sears, 421 U.S. 132, 150-53, 95 S.Ct. 1504, 1516-18, 44 L.Ed.2d 29 (1975); Russell v. Department of the Air Force, 682 F.2d 1045, 1048 (D.C.Cir.1982). This policy consideration warrants the protection of “predecisional” documents despite the general philosophy favoring disclosure which underlies FOIA. Afshar v. Department of State, 702 F.2d 1125, 1142 (D.C.Cir.1983). The exemption, however, must be narrowly construed. EPA v. Mink, 410 U.S. at 87, 93 S.Ct. at 836; Afshar, supra; Taxation With Representation, 646 F.2d at 677. Even documents which are predecisional are exempt only if they are part of the deliberative process, and protection may be forfeited if the document is subsequently “adopted, formally or informally, as the agency position on an issue or is used by the agency in its dealings with the public.” Taxation With Representation, 646 F.2d at 677-78, quoting Coastal States, 617 F.2d at 866. Consistent with this analysis, purely factual information is not exempt from disclosure unless it is so entwined with protected material that segregation is impossible or it would reveal the underlying decisionmaking process. Mead Data Central, Inc. v. Department of the Air Force, 566 F.2d 242, 256, 260 (D.C. Cir.1977). In order to determine whether the deliberative process privilege applies" }, { "docid": "476726", "title": "", "text": "rationales that were not in fact ultimately the grounds for an agency’s action. See Coastal States, 617 F.2d at 866. “The deliberative process privilege protects agency documents that are both predecisional and deliberative.” Judicial Watch, Inc., v. FDA 449 F.3d 141, 151 (D.C.Cir.2006). To invoke the privilege, the document must both be (1) predecisional in that it was “generated before the adoption of agency policy” and (2) deliberative in that it “reflects the give-and-take of the consultative process.” Coastal States, 617 F.2d at 866; see also Tax Analysts v. IRS, 117 F.3d 607, 616 (D.C.Cir.1997); Judicial Watch, Inc., v. Dep’t of Energy, 412 F.3d 125, 129 (D.C.Cir.2005). “In other words, it protects ‘predecisional communications’ reflecting an agency’s internal deliberations, but not communications that explain a decision that has already been made.’ ” Tax Analysts, 294 F.3d at 80 (quoting Sears, 421 U.S. at 151-52, 95 S.Ct. 1504, 44 L.Ed.2d 29). “The exemption thus covers recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency. Documents which are protected by the privilege are those which would inaccurately reflect or prematurely disclose the views of the agency, suggesting as agency position that which is as yet only a personal position.” Coastal States, 617 F.2d at 866. However, “an agency will not be permitted to develop a body of ‘secret law,’ used by it in the discharge of its regulatory duties and in its dealings with the public, but hidden behind a veil of privilege, because it is not designated as ‘formal,’ ‘binding,’ or ‘final.’ ” Id. at 867. Exemption 5 does not “protect communications that implement an established policy of an agency.” TWRF, 646 F.2d at 677. The Court also notes that “even if the document is predecisional at the time it is prepared, it can lose that status if it is adopted, formally or informally, as the agency position on an issue or is used by the agency in its dealings with the public.” Coastal States, 617 F.2d at 867. Finally, in determining whether a document represents" }, { "docid": "2610742", "title": "", "text": "its original order with a holding that the disputed documents also fall within section 552(a)(2) of FOIA, and that the IRS has a “continuing duty” to make the records and indices available. On June 19, 1980, the IRS filed a notice of appeal from the District Court’s orders. J.A. at 192. II. ANALYSIS OF THE RELEVANT CASE LAW A. A General Definition of the Deliberative Process Privilege Appellee sought disclosure of the GCMs, TMs and AODs described above pursuant to sections (a)(2) and (3) of the Freedom of Information Act, 5 U.S.C. § 552(a)(2) and (3). These sections require the disclosure of records constituting final opinions or statements of policy promulgated by an agency, and any records reasonably described upon request, subject to the nine specific exemptions contained in section (b) of the Act. Appellant denied that the documents constitute final opinions or statements of agency policy within the meaning of the statute, and claimed that the documents were exempt pursuant to Exemption 5. Exemption 5, which is the focus of this litigation, protects inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency. 5 U.S.C. § 552(b)(5). Given the literal language of Exemption 5, it is not surprising that the courts have construed this exemption to encompass the protections traditionally afforded certain documents pursuant to evidentiary privileges in the civil discovery context. The courts have recognized that Exemption 5 protects, as a general rule, materials which would be protected under the attorney-client privilege, Mead Data Central, 184 U.S.App.D.C. at 360-363, 566 F.2d at 252-255; the attorney work-product privilege, NLRB v. Sears, 421 U.S. at 154, 95 S.Ct. at 1518, Bristol-Myers Co. v. FTC, 194 U.S.App.D.C. 99, 598 F.2d 18 (1978); or the executive “deliberative process” privilege, EPA v. Mink, 410 U.S. [73] at 85-90, 93 S.Ct. [827] at 835-837 [35 L.Ed.2d 119]; Vaughn v. Rosen, 173 U.S. App.D.C. 187, 523 F.2d 1136 (1975) (Vaughn II). Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 862 (D.C.Cir.1980). See also NLRB v. Sears, Roebuck" }, { "docid": "6188751", "title": "", "text": "the documents were “post-decisional,” represents an artificial effort to segment the continuous process of settlement and lacks support in the record. Similarly, its argument that two documents dated October 28, 1981, and September 28, 1981, (Items 10 and 12 of the Index), are post-decisional because they concern the decision to defer construction — first announced August 19, 1981 — rather than settlement itself, also fails, because TVA had not reached a final decision and retained the option of completing construction rather than settling. See NLRB v. Sears, 421 U.S. at 151-53, 95 S.Ct. at 1516-18; Mead Data Central, Inc. v. Department of the Air Force, 575 F.2d 932, 936-37 (D.C.Cir.1978). It further appears that the documents in question qualify as “deliberative.” All are intra-agency memoranda containing staff evaluations, recommendations, proposals, and suggestions concerning the Zurn settlement process. Discussion among agency personnel about the relative merits of various positions which might be adopted in contract negotiations are as much a part of the deliberative process as the actual recommendations and advice which are agreed upon. As such they are equally protected from disclosure by exemption five. Mead Data, 566 F.2d at 257. Defendant’s index and affidavits show that the documents were circulated only to concerned staff members, preserving the requisite confidentiality for invoking a FOIA exemption. See Murphy v. Department of the Army, 613 F.2d 1151, 1155-59 (D.C.Cir.1979). Plaintiff’s argument that TVA waived any possible exemption based on its purported disclosures to Zurn fails for two reasons. First, there is no support in the record for the assertion that TVA supplied Zurn or any other third party with the documents plaintiff seeks. In addition, the mere fact that Zurn necessarily learned some of the information contained in the documents — i.e., TVA’s bargaining positions — during the course of negotiations does not provide a basis for disclosing these documents to plaintiff. See NLRB v. Sears, 421 U.S. at 161, 95 S.Ct. at 1521; Afshar, 702 F.2d at 1139-40. Finally, the documents in question were not adopted, formally or informally, as the final agency decision and so have not lost their privileged" }, { "docid": "6188746", "title": "", "text": "OPINION CHARLES R. RICHEY, District Judge. The Court has before it the parties’ cross motions for summary judgment and their memoranda of points and authorities in opposition thereto. Plaintiff is seeking the disclosure of fourteen documents under the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”), eight of which have been withheld in full and six of which have been partially withheld. Defendant bases its refusal to disclose the documents on Exemption 5, which protects “inter-agency or intra-agency memorandums [sic] or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). Although this language is not perfectly clear on its face, it has been construed to exempt documents which would be privileged in civil discovery. See, e.g., NLRB v. Sears, 421 U.S. 132, 148-55, 95 S.Ct. 1504, 1515-19, 44 L.Ed.2d 29 (1975); EPA v. Mink, 410 U.S. 73, 85-95, 93 S.Ct. 827, 835-840, 35 L.Ed.2d 119 (1973); Taxation With Representation v. IRS, 646 F.2d 666, 668 (D.C.Cir.1981); Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 862 (D.C.Cir.1980). In this case, the Tennessee Valley Authority (“TVA”) claims that the documents sought are protected by both the “deliberative process” and the attorney-client privileges. For the reasons set forth below, the Court concludes that TVA has met its burden of proof and is not required to produce the fourteen documents plaintiff seeks. Background TVA is a corporation wholly owned by the United States government with a statutory mandate to develop the natural resources of the Tennessee Valley and to supply electric power to parts of seven states. See Fehlhaber Pile Co. v. TVA, 155 F.2d 864, 865 (D.C.Cir.1946). In 1977, TVA contracted with Zurn Industries for the design and construction of six cooling towers at two nuclear power plants. Plaintiff’s predecessor in interest, American Drilling Service Co., was one of Zurn’s subcontractors on the projects. TVA decided to defer construction, however, and notified Zurn on August 19,1981, to begin “winddown procedures.” Subsequently, TVA and Zurn met and negotiated for a little over a year and" }, { "docid": "19231338", "title": "", "text": "the burden of showing that a claimed exemption applies. Pub. Citizen, 598 F.3d at 869 (citing Loving v. Dep’t of Def., 550 F.3d 32, 37 (D.C.Cir.2008)). Summary judgment is warranted when the agency’s affidavits “describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Miller v. Casey, 730 F.2d 773, 776 (D.C.Cir.1984) (quotations omitted); Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C.Cir.2009) (“Ultimately, an agency’s justification for invoking a FOIA exemption is sufficient if it appears logical or plausible.” (quotations omitted)). B. Deliberative Process Privilege The deliberative process privilege protects agencies from being “forced to operate in a fishbowl.” EPA v. Mink, 410 U.S. 73, 87, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973) (quotations omitted). And it applies when “production of the contested document would be injurious to the consultative functions of government that the privilege of nondisclosure protects.” Id. (quotations omitted). The privilege “calls for disclosure of all opinions and interpretations which embody the agency’s effective law and policy, and the withholding of all papers which reflect the agency’s group thinking in the process of working out its policy and determining what its law shall be.” Sears, 421 U.S. at 153, 95 S.Ct. 1504 (quotations omitted). The privilege is limited to documents that are “predecisional” and “deliberative,” meaning “they ‘reflect[ ] advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated, [or] the personal opinions of the writer prior to the agency’s adoption of a policy.’ ” Pub. Citizen, 598 F.3d at 875 (quoting Taxation With Representation Fund v. IRS, 646 F.2d 666, 677 (D.C.Cir.1981)). Importantly, the Supreme Court’s decision in Sears explained that, under FOIA, agencies must disclose their “working law,” i.e. the “reasons which [supplied] the basis for an agency policy actually adopted.” 421 U.S. at 152-53, 95 S.Ct. 1504. In other words, an agency is not permitted to develop “a body of ‘secret law,’ used by it in" }, { "docid": "6188749", "title": "", "text": "consideration warrants the protection of “predecisional” documents despite the general philosophy favoring disclosure which underlies FOIA. Afshar v. Department of State, 702 F.2d 1125, 1142 (D.C.Cir.1983). The exemption, however, must be narrowly construed. EPA v. Mink, 410 U.S. at 87, 93 S.Ct. at 836; Afshar, supra; Taxation With Representation, 646 F.2d at 677. Even documents which are predecisional are exempt only if they are part of the deliberative process, and protection may be forfeited if the document is subsequently “adopted, formally or informally, as the agency position on an issue or is used by the agency in its dealings with the public.” Taxation With Representation, 646 F.2d at 677-78, quoting Coastal States, 617 F.2d at 866. Consistent with this analysis, purely factual information is not exempt from disclosure unless it is so entwined with protected material that segregation is impossible or it would reveal the underlying decisionmaking process. Mead Data Central, Inc. v. Department of the Air Force, 566 F.2d 242, 256, 260 (D.C. Cir.1977). In order to determine whether the deliberative process privilege applies in a particular case, it is necessary to consider the agency’s decisionmaking mechanisms and the documents’ significance within that structure. Taxation With Representation, 646 F.2d at 678-81; Coastal States, 617 F.2d at 868-69. At TVA, the three-member Board of Directors has the authority to set agency policy and to act on behalf of the agency, including the power to contract, to settle claims, and to litigate. The staff is responsible for coordinating and developing recommendations through the General Manager, and TVA’s General Counsel provides the Board with legal advice. Here, the documents in question were all written by staff members and agency counsel who were involved in resolving Zurn’s contract claims but did not themselves have authority to settle them. See Taxation With Representation, 646 F.2d at 680. All fourteen documents are predecisional — they were written after TVA decided to wind down its cooling tower projects but before the Board voted to approve the $17.5 million settlement recommendation. Plaintiff’s assertion that TVA made interim decisions while negotiating with Zurn, and therefore that some of" }, { "docid": "11794990", "title": "", "text": "IRS”. JA at 54. The court also noted that the IRS did not demonstrate that the Section 48(h) drafts “have not been or will not be used and relied upon in connection with issuance of private letter rulings and other determinations” and that the “drafts are not subject to continued modification or discussion”. JA at 55. Thus, the District Court, concluding that the drafts are not predecisional and that the IRS had at least informally adopted them, ordered the IRS to provide copies of the draft regulations and transmittal memoranda to Pies. JA at 55-56. II The agency contends that the documents are exempt from disclosure pursuant to 5 U.S.C. § 552(b)(5) (Exemption 5) which provides that agencies are not required to make available inter-agency or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with the agency. Documents protected from disclosure are those which fall within three categories, the attorney-client privilege, Mead Data Central, Inc. v. U. S. Department of the Air Force, 566 F.2d 242, 252-255 (D.C.Cir.1977); the attorney-work product privilege, NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 154, 95 S.Ct. 1504, 1518, 44 L.Ed.2d 29 (1975), Bristol-Myers Co. v. FTC, 598 F.2d 18 (D.C. Cir.1978), and the so-called executive, governmental or deliberative process privilege, EPA v. Mink, 410 U.S. 73, 85-90, 93 S.Ct. 827, 835-37, 35 L.Ed.2d 119 (1973). Those privileges have been compared and distinguished in Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854 (D.C.Cir. 1980). Here, the only privilege asserted by the appellant and considered by the District Court is the deliberative process privilege. Recently, we had occasion to consider that privilege as it relates to General Counsel Memoranda (GCMs), Actions on Decisions (AODs) and Technical Memoranda (TMs) prepared and maintained by the appellant. Taxation With Representation Fund v. IRS, 646 F.2d 666 (D.C.Cir.1981). We affirmed so much of the District Court’s Order that directed the release of GCMs that had been revised to reflect the final position of the Assistant Commissioner (Technical) and had been widely distributed throughout" }, { "docid": "6188752", "title": "", "text": "such they are equally protected from disclosure by exemption five. Mead Data, 566 F.2d at 257. Defendant’s index and affidavits show that the documents were circulated only to concerned staff members, preserving the requisite confidentiality for invoking a FOIA exemption. See Murphy v. Department of the Army, 613 F.2d 1151, 1155-59 (D.C.Cir.1979). Plaintiff’s argument that TVA waived any possible exemption based on its purported disclosures to Zurn fails for two reasons. First, there is no support in the record for the assertion that TVA supplied Zurn or any other third party with the documents plaintiff seeks. In addition, the mere fact that Zurn necessarily learned some of the information contained in the documents — i.e., TVA’s bargaining positions — during the course of negotiations does not provide a basis for disclosing these documents to plaintiff. See NLRB v. Sears, 421 U.S. at 161, 95 S.Ct. at 1521; Afshar, 702 F.2d at 1139-40. Finally, the documents in question were not adopted, formally or informally, as the final agency decision and so have not lost their privileged status. Nor do they constitute a body of “secret law,” Coastal States, 617 F.2d at 867, either in the sense that they controlled the resolution of Zurn’s claim or in the sense that they may be used as “precedent” for other TVA decisions. See Schlefer v. United States, 702 F.2d 233, 244 (D.C.Cir.1983). It is clear, rather, that the fourteen documents sought “are directed at a very specific decision,” Mead Data, 575 F.2d at 935, and it is unlikely that they could in any way “embody the agency’s effective law and policy.” ITT World Communications v. FCC, 699 F.2d 1219, 1236 (D.C.Cir.), cert. granted, - U.S. -, 104 S.Ct. 334, 77 L.Ed.2d-(1983), quoting NLRB v. Sears, 421 U.S. at 153, 95 S.Ct. at 1517. Cf. Schlefer, supra (indexed opinions of Maritime Administration’s chief counsel not exempt); Taxation With Representation, 646 F.2d 666 (D.C.Cir.1981) (certain IRS records not exempt). Disclosure of these documents would be “injurious to the consultative functions of government that the privilege . .. protects.” EPA v. Mink, 410 U.S. at 87, 93" }, { "docid": "19231339", "title": "", "text": "for disclosure of all opinions and interpretations which embody the agency’s effective law and policy, and the withholding of all papers which reflect the agency’s group thinking in the process of working out its policy and determining what its law shall be.” Sears, 421 U.S. at 153, 95 S.Ct. 1504 (quotations omitted). The privilege is limited to documents that are “predecisional” and “deliberative,” meaning “they ‘reflect[ ] advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated, [or] the personal opinions of the writer prior to the agency’s adoption of a policy.’ ” Pub. Citizen, 598 F.3d at 875 (quoting Taxation With Representation Fund v. IRS, 646 F.2d 666, 677 (D.C.Cir.1981)). Importantly, the Supreme Court’s decision in Sears explained that, under FOIA, agencies must disclose their “working law,” i.e. the “reasons which [supplied] the basis for an agency policy actually adopted.” 421 U.S. at 152-53, 95 S.Ct. 1504. In other words, an agency is not permitted to develop “a body of ‘secret law,’ used by it in the discharge of its regulatory duties and in its dealings with the public, but hidden behind a veil of privilege because it is not designated as ‘formal,’ ‘binding,’ or ‘final.’” Schlefer v. United States, 702 F.2d 233, 244 (D.C.Cir.1983) (quoting Coastal States, 617 F.2d at 867). Therefore, an agency must disclose “binding agency opinions and interpretations” that the agency “actually applies in cases before it.” Id. (quoting Sterling Drug Inc. v. FTC, 450 F.2d 698, 708 (D.C.Cir.1971)). In Sterling Drug, we required disclosure of memoranda prepared by the Federal Trade Commission to the extent that they contained “orders and interpretations” that the Commission actually applied in a particular acquisition case. 450 F.2d at 708. We explained that the deliberative process privilege’s policy “of promoting the free flow of ideas within the agency does not apply here, for private transmittals of binding agency opinions and interpretations should not be encouraged.” Id. In Coastal States, we followed this principle to hold that memoranda from regional counsel to auditors in field offices must be disclosed because the memoranda" }, { "docid": "13589623", "title": "", "text": "617 F.2d 854, 862 (D.C.Cir.1980). Among those privileges protected by Exemption 5 is the “executive ‘deliberative process’ privilege,” id., which is “unique to the government.” Id. at 866. This privilege covers “ ‘all papers which reflect the agency’s group thinking in the process of working out its policy and determining what its law shall be.’ ” NLRB v. Sears, Roebuck & Co., supra, 421 U.S. at 153, 95 S.Ct. at 1517 (quoting Davis, The Information Act: A Preliminary Analysis, 34 U.Chi.L.Rev. 761, 797 (1967)). “The point, plainly made in the Senate Report, is that the ‘frank discussion of legal or policy matters’ in writing might be inhibited if the discussion were made public; and that the ‘decisions’ and ‘policies formulated’ would be the poorer as a result.” Id. at 150, 95 S.Ct. at 1516 (quoting S.Rep.No.813, 89th Cong., 1st Sess. 9 (1965)). However, because the quality of a decision is unlikely to be “affected by communications with respect to the decision occurring after the decision is finally reached,” id. at 151, 95 S.Ct. at 1516, forced disclosure of post-decisional communications is unlikely to affect the quality of the decision, “as long as prior communications and the ingredients of the decisionmaking process are not disclosed.” Id. Further “[pjredecisional documents are thought generally to reflect the agency ‘give-and-take’ leading up to a decision that is characteristic of the deliberative process; whereas post-decisional documents often represent the agency’s position on an issue, or explain such a position, and thus may constitute the ‘working law’ of an agency” which Congress intended by FOIA to make accessible to the public. Taxation With Representation Fund v. IRS, 646 F.2d 666, 677 (D.C.Cir.1981). Thus, in general, predecisional communications are likely to qualify as privileged and “communications made after the decision and designed to explain it” are not. NLRB v. Sears, supra, 421 U.S. at 151-52, 95 S.Ct. at 1516-17. In Coastal States, supra, 617 F.2d at 866, this court cited “recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency” as examples of" }, { "docid": "13589624", "title": "", "text": "forced disclosure of post-decisional communications is unlikely to affect the quality of the decision, “as long as prior communications and the ingredients of the decisionmaking process are not disclosed.” Id. Further “[pjredecisional documents are thought generally to reflect the agency ‘give-and-take’ leading up to a decision that is characteristic of the deliberative process; whereas post-decisional documents often represent the agency’s position on an issue, or explain such a position, and thus may constitute the ‘working law’ of an agency” which Congress intended by FOIA to make accessible to the public. Taxation With Representation Fund v. IRS, 646 F.2d 666, 677 (D.C.Cir.1981). Thus, in general, predecisional communications are likely to qualify as privileged and “communications made after the decision and designed to explain it” are not. NLRB v. Sears, supra, 421 U.S. at 151-52, 95 S.Ct. at 1516-17. In Coastal States, supra, 617 F.2d at 866, this court cited “recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency” as examples of predecisional deliberative materials privileged under Exemption 5. The designation of the documents here as “drafts” does not end the inquiry, however. Coastal States forecloses the Agency’s argument that any document identified as a “draft” is per se exempt. Even if a document is a “draft of what will become a final document,” the court must also ascertain “whether the document is deliberative in nature.” Id. Further, “even if the document is predecisional at the time it is prepared, it can lose that status if it is adopted, formally or informally, as the agency position on an issue or is used by the agency in its dealings with the public.” Id. FOIA imposes on the Agency the burden “to sustain its action” in withholding documents. 5 U.S.C. § 552(a)(4)(B). The Agency must thus carry the burden of establishing that documents contain “the ideas and theories which go into the making of the law” and not “the law itself,” Sterling Drug, Inc. v. FTC, 450 F.2d 698, 708 (D.C.Cir.1971). This involves showing “what deliberative process is involved," } ]

[ { "docid": "16886626", "title": "", "text": "and a reporter for the New York Post and stated that, among other things, Arledge and Erlick had tried to embarrass Rule in order to gain higher positions at ABC. According to the coun-terclaimants, Giaimo made the statements with the expectation and intent that they would be published by the reporters. The counterclaims also allege that, when speaking to the New York Daily News columnist, Giaimo compared the power struggle at ABC with “Network,” a motion picture about corrupt practices in a fictitious television industry, and stated that the situation was worse at ABC. DISCUSSION The Counterclaims The first issue to be decided is whether the counterclaims are compulsory. Giaimo contends that they are not and therefore must be dismissed as against him because there is no diversity of citizenship between him and the counterclaimants. If the counterclaims are compulsory under Fed.R. Civ.P. 13(a), they are within the court’s ancillary jurisdiction and no independent basis of federal jurisdiction is required. E. g., Harris v. Steinem, 571 F.2d 119,121-22 (2d Cir.1978); Newburger, Loeb & Co. v. Gross, 563 F.2d 1057, 1070 (2d Cir.1977), cert. denied, 434 U.S. 1035, 98 S.Ct. 769, 54 L.Ed.2d 782 (1978); Establissement Tomis v. Shearson Hayden Stone, Inc., 459 F. Supp. 1355, 1364 (S.D.N.Y.1978). On the other hand, if the counterclaims are permissive, they would have to be dismissed as against Giaimo because of the absence of an independent jurisdictional predicate. Harris v. Steinem, 571 F.2d 119, 122 (2d Cir.1978); Newburger, Loeb & Co. v. Gross, 563 F.2d 1057,1070-71 (2d Cir.1977), cert. denied, 434 U.S. 1035, 98 S.Ct. 769, 54 L.Ed.2d 782 (1978); Establissement Tomis v. Shearson Hayden Stone, Inc., 459 F.Supp. 1355, 1364 (S.D.N.Y.1978). According to Fed.R.Civ.P. 13(a), a counterclaim is considered compulsory “if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim.” In the Second Circuit, the standard for determining whether a claim is compulsory is the “ ‘logical relation’ test.” Newburger, Loeb & Co. v. Gross, 563 F.2d 1057, 1071 (2d Cir. 1977), cert. denied, 434 U.S. 1035, 98 S.Ct. 769, 54 L.Ed.2d 782 (1978)." } ]

[ { "docid": "1185041", "title": "", "text": "out of the same transaction or occurrence as the government’s claim against the debtor, premised on debtor’s overdue income taxes. In Sue & Sam Mfg. Co. v. B-L-S Constr. Co., 538 F.2d 1048, 1051-53 (4th Cir.1976), the Fourth Circuit set out commonly used tests to determine whether a claim arises out of the same transaction or occurrence that is the subject matter of an opposing party’s claim: (1) whether the issues of fact and law raised by the claim and the counterclaim are largely the same; (2) whether res judicata would bar a subsequent suit on the counterclaim, absent the compulsory counterclaim rule; (3) whether substantially the same evidence supports or refutes the claim as well as the counterclaim; and (4) whether the claim has any logical relationship to the counterclaim. Noting that the purpose of the compulsory counterclaim rule was to avoid a multiplicity of suits, the court favored a “broad realistic interpretation” of these tests. Id. This rationale, however, conflicts with the general principle that courts strictly construe waivers of sovereign immunity. See supra at 419. Moreover, the issue here is not whether debtor can or must assert the “counterclaim,” but rather and to what extent the government waived its immunity to debtor’s “counterclaim” when the IRS filed its proof of claim in the bankruptcy proceedings. With these considerations in mind, the court applies the transaction-occurrence analysis of Sue & Sam Mfg. Co. and concludes that debtor’s claim does not arise from the same transaction or occurrence as the subject matter of the IRS’s claim. The transaction or occurrence giving rise to the IRS’s claim is debtor’s failure to pay federal income taxes in the years 1983, 1987, and 1988. The transaction or occurrence giving rise to debtor’s claim is the IRS’s three violations of the automatic stay on August 3, 1989; March 28, 1990; and May, 1990. The events that form the subject matter of the parties’ respective claims, therefore, are years apart and raise separate, unrelated issues of fact and law. To prevail, each party must prove an unrelated set of facts to support separate causes" }, { "docid": "1185040", "title": "", "text": "amount no greater than the government’s claim against the debtor. See United States v. McPeck, 910 F.2d 509, 512-13 (8th Cir.1990) (reading subsections (a) and (b) together and applying subsection (a) only when the debtor’s claim exceeds the government’s claim). The debtor in this case seeks to affirm the bankruptcy court’s award of $4,700.00, which exceeds the two proofs of claim filed by the IRS in the amount of $2,262.54. The court, therefore, now considers the application of subsection (a) to debtor’s claim. Section 106(a) specifies three conditions for a waiver of sovereign immunity: 1) the governmental unit must assert a claim against the estate; 2) the estate’s claim against the governmental unit must be “property of the estate”; and 3) the claim of the estate must arise “out of the same transaction or occurrence” as the governmental unit’s claim. Although the first two elements are not in dispute in the case at bar, this court cannot conclude that the debtor’s claim against the government, premised on the IRS violations of the automatic stay, arises out of the same transaction or occurrence as the government’s claim against the debtor, premised on debtor’s overdue income taxes. In Sue & Sam Mfg. Co. v. B-L-S Constr. Co., 538 F.2d 1048, 1051-53 (4th Cir.1976), the Fourth Circuit set out commonly used tests to determine whether a claim arises out of the same transaction or occurrence that is the subject matter of an opposing party’s claim: (1) whether the issues of fact and law raised by the claim and the counterclaim are largely the same; (2) whether res judicata would bar a subsequent suit on the counterclaim, absent the compulsory counterclaim rule; (3) whether substantially the same evidence supports or refutes the claim as well as the counterclaim; and (4) whether the claim has any logical relationship to the counterclaim. Noting that the purpose of the compulsory counterclaim rule was to avoid a multiplicity of suits, the court favored a “broad realistic interpretation” of these tests. Id. This rationale, however, conflicts with the general principle that courts strictly construe waivers of sovereign immunity. See" }, { "docid": "18814731", "title": "", "text": "1638(a)(10) of the TILA, which compels disclosure of any “security interest” retained by the creditor. However, the Supreme Court recently held that the TILA does not require disclosure of acceleration clauses. Ford Motor Credit Co. v. Milhollin, supra, 444 U.S. at 570, 100 S.Ct. at 799. Plaintiff’s third argument is thus without merit. Having found that no disputed issues of fact exist and that defendant is entitled to judgment as a matter of law, plaintiff’s motion for summary judgment is denied and defendant’s motion for summary judgment is granted. III. PLAINTIFF’S MOTION TO DISMISS COUNTERCLAIM As indicated above, defendant filed a counterclaim in this action for the balance due on the loan, based on plaintiff’s failure to maintain payments on the loan. Since this Court will grant defendant’s motion for summary judgment, thus granting judgment to defendant on the plaintiff’s complaint, it must be determined whether jurisdiction over the counterclaim will be retained. The resolution of this question turns on the characterization of the counterclaim. A federal court has ancillary jurisdiction over compulsory counterclaims, while permissive counterclaims must be dismissed unless they independently satisfy federal jurisdictional requirements. City of Cleveland v. Cleveland Electric Illuminating Co., 570 F.2d 123, 126-27 (6th Cir. 1978); Whigham v. Beneficial Finance Co., 599 F.2d 1322, 1323 (4th Cir. 1979); 3 Moore’s Federal Practice, ¶ 13.15[1] (1980). It is conceded that defendant’s counterclaim is not based on an independent ground of federal jurisdiction. Thus, the counterclaim must be dismissed if it is found to be permissible. Under the Federal Rules of Civil Procedure, a compulsory counterclaim “arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim .. . . ” Fed.R.Civ.P. 13(a). In contrast, a permissive counterclaim is a “claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party’s claim.” Fed. R.Civ.P. 13(b). This Circuit determines whether a counterclaim “arises out of” a transaction by examining if policies of judicial economy and doing complete justice will be served by entertaining the counterclaim, and if a “logical relationship”" }, { "docid": "15331181", "title": "", "text": "in connection with the loan transaction. Plaintiff filed her original complaint March 9, 1976 and filed an amended complaint April 4, 1977 which added a class action allegation. COUNTERCLAIMS — RULE 13 Plaintiff moves to dismiss the counterclaims against her and certain unnamed class members pursuant to Fed.R.Civ.P. rule 12(b)(1). It is well established that a court has ancillary jurisdiction over compulsory counterclaims. Moore v. N. Y. Cotton Exchange, 270 U.S. 593, 46 S.Ct. 367, 70 L.Ed. 750 (1926). Plaintiff, however, contends that the instant counterclaims are permissive and must therefore be dismissed in the absence of $10,000 in controversy and either federal question or diversity jurisdiction. 28 U.S.C. §§ 1331, 1332. Fed.R.Civ.P. rule 13(a) provides that a counterclaim is compulsory “if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim * * Although courts and commentators have formulated various tests to determine what constitutes the same “transaction or occurrence” (see, Wright on Federal Courts, § 79), decisions of the United States Court of Appeals for the Second Circuit have looked to whether there is a logical relationship between the claim and the counterclaim. In Harris v. Steinem, 571 F.2d 119 (2d Cir. 1978), the court noted (Id. at 123): “This flexible approach to Rule 13 problems attempts to analyze whether the essential facts of the various claims are so logically connected that considerations of judicial economy and fairness dictate that all the issues be resolved in one lawsuit. * * * Thus, precise identity of issues and evidence between claim and counterclaim is not required. * * Conversely, at some point the essential facts and ‘the thrust of the two claims [are] so basically different that such accepted “tests of compulsoriness” as “logical relation” [are] not met . . . .’ Ball v. Connecticut Bank and Trust Co., 404 F.Supp. 1, 4 (D.Conn.1975).” In applying the “logical relationship” test in TILA actions, some courts have held counterclaims for the underlying debt compulsory. See, e. g., Mims v. Dixie Finance Corp., 426 F.Supp. 627 (N.D.Ga.1976) (en banc), rev’g Roberts v. National" }, { "docid": "23425264", "title": "", "text": "amount in controversy required to satisfy 28 U.S.C. § 1332(a); and (b) that even if no independent jurisdictional ground to support the counterclaim exists, that the Court properly retained ancillary jurisdiction, because the counterclaim is compulsory. Rule 13(a), Fed.R.Civ.P., provides, inter alia: (a) Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occur rence that is the subject matter of the opposing party’s claim .... (Emphasis supplied). A related or compulsory counterclaim — as distinguished from a permissive counterclaim — must be pleaded or it is barred. See Wright and Miller, Federal Practice and Procedure, Civil § 1417 and cases cited. A federal district court may assert jurisdiction of a claim which is a continuation of, or incidental and ancillary to, a principal claim over which it has jurisdiction, even though it might not have jurisdiction of the ancillary proceedings if it were an independent and original action or proceeding. Aetna Insurance Company v. Chicago, Rock Island and Pacific Railroad Company, 229 F.2d 584 (10th Cir. 1956); Wright, Federal Practice and Procedure, § 1414 at 69-71. This is so because the ancillary claim is referable to or dependent upon the jurisdiction of the court over the principal suit or proceeding. United States v. Acord, 209 F.2d 709 (10th Cir. 1954). In Inter-State National Bank of Kansas City v. Luther, 221 F.2d 382 (10th Cir. 1955), cert. dismissed 350 U. S. 944, 76 S.Ct. 297, 100 L.Ed. 823 (1956), we held that: Counterclaim under Rule 13, F.R.C.P., includes both setoff and recoupment, and is broader than either in that it includes other claims and may be used as a basis for affirmative relief. See Clark Code Pleading, 2d Ed. 637, cited 3 Moore’s Federal Practice, § 13.02, p. 9. Rule 13(a), F.R.C.P., provides for compulsory counterclaim “if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim * * *.” Rule 13(b) provides for a permissive counterclaim ." }, { "docid": "22961658", "title": "", "text": "States, supra. Cf. Cherry Cotton Mills v. United States, 327 U.S. 536, 66 S.Ct. 729, 90 L.Ed. 835. Section 68, sub. b, however, prohibits the allowance of a setoff in favor of a debtor who obtains a preference under Section 57, sub. g, and it was manifestly for that reason the trial court denied the setoff allowed by the referee. Section 68 does not specifically provide for a counterclaim. It is silent with respect thereto beyond the negative provision that they shall not be allowed in favor of a debtor under specified conditions. See 4 Collier §§ 68.11-68.12. But Section 68 was not intended to govern jurisdiction or to provide a mode of procedure. The Federal Rules of Civil Procedure are expressly made applicable and we look to Rule 13 to determine whether the counterclaim is maintainable. Counterclaim under Rule 13, F.R.C.P., includes both setoff and recoupment, and is broader than either in that it includes other claims and may be used as a basis for affirmative relief. See Clark Code Pleadings, 2d Ed. 637, cited 3 Moore’s Federal Practice § 13.02, p. 9. Rule 13(a) F.R.C.P., provides for compulsory counterclaim “if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim * * Rule 13(b) provides for a permissive counterclaim against an opposing party “not arising out of the transaction or occurrence that is the subject matter of the opposing party’s claim.” The only difference in the two sub-sections which we need to note is that the compulsory counterclaim, being ancillary to the claim, derives its jurisdiction from the same source, whereas a permissive counterclaim not arising out of the same transaction or occurrence must rest upon independent grounds of jurisdiction. But even that distinction is of no consequence here for concededly the counterclaim is within the conferrable jurisdiction of the parties. And, being of the view that the Bank impliedly consented to the jurisdiction of the court, the counterclaim was maintainable under Rule 13(b), F.R. C.P., whether compulsory or permissible. See 3 Moore’s Federal Practice §§ 13.18-13.19. We hold, therefore," }, { "docid": "22155170", "title": "", "text": "Public Industrials Corporation, 144 F.2d 968, 976 n. 10 (2d Cir. 1944). Although there has been some criticism of the requirement of an independent jurisdictional ground for permissive counterclaims, see United States v. Heyward-Robinson Company, supra, 430 F.2d at 1087-88 (Friendly, J., concurring); Green, Federal Jurisdiction over Counterclaims, 48 N.W.U.L.Rev. 271 (1953), the eases have uniformly adhered to this requirement. See Sue & Sam Mfg. Co. v. B-L-S Const. Co., 538 F.2d 1048, 1051 (4th Cir. 1976); Pipeliners Local Union No. 798, Tulsa, Okl. v. Ellerd, 503 F.2d 1193, 1198 (10th Cir. 1974); 6 Wright and Miller, Federal Practice and Procedure, § 1414 (1971). At their core, the compulsory counterclaim doctrine and the parallel doctrine of ancillary jurisdiction both seek to further the same policy, which is to avoid piecemeal litigation in the federal courts. See, e.g., United States v. Heyward-Robinson Company, supra, 430 F.2d at 1082; Great Lakes Rubber Corporation v. Herbert Cooper Company, 286 F.2d 631, 633-34 (3rd Cir. 1961); United Artists Corp. v. Masterpiece Productions, supra, 221 F.2d at 216-17. Since a compulsory counterclaim is by definition closely related to the subject matter of the opposing party’s claim, common sense and judicial economy compel the conclusion that such claims should be tried together and the extension of ancillary jurisdiction to compulsory counterclaims is consistent with Article Ill’s grant of jurisdiction over “cases” arising under the Constitution and federal laws. See Aldinger v. Howard, 427 U.S. 1, 6-16, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976); 6 Wright and Miller, supra, at § 1414. Fed.R.Civ.P. 13(a) provides, inter alia, that a counterclaim is compulsory, “if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim.” In interpreting this language we have adopted what has been termed the “logical relation” test. See 6 Wright and Miller, supra, at § 1410. Thus, in United Artists Corp. v. Masterpiece Productions, supra, 221 F.2d at 216, Chief Judge Clark said, “In practice this criterion has been broadly interpreted to require not an absolute identity of factual backgrounds for the two claims, but only a logical" }, { "docid": "12152319", "title": "", "text": "Thus, he concludes, the district court was without jurisdiction because Short and Scott are both Oklahoma residents. Re-alignment of the parties is to be accomplished on the basis of the facts available at the commencement of the action. Petro-Fina and Fancher had charged both Scott and Short with negligence and at that time it could not be said that the allegations were baseless. Accordingly, no re-alignment was required. Texas Pac. Coal & Oil Co. v. Mayfield, 152 F.2d 956 (5 Cir. 1946). We also reject Scott’s contention that Short’s cross-claim against Scott was not ancillary to the original suit and therefore required an independent jurisdictional base. Short’s cross-claim arose out of the same transaction and involved the same parties as did the original action. In such cases jurisdiction rests with the primary suit. Childress v. Cook, 245 F.2d 798 (5 Cir. 1957); Collier v. Harvey, 179 F.2d 664 (10 Cir. 1949). Scott further argues that since there was an action pending in the Oklahoma state courts, Short’s action in the federal court against Fancher, Petro-Fina and Scott was a permissive counterclaim rather than a compulsory one. He bases his argument on the language of Rule 13(a) which provides that claims arising out of the same transaction or occurrence “need not be so stated if at the time the action was commenced the claim was the subject of another pending action.” Fed.R.Civ.P. 13(a). This language, he asserts, converts the counterclaim into a permissive one and requires that an independent jurisdictional base exist. It is argued that since Scott and Short are both Oklahoma residents the court was without jurisdiction. We need not determine, however, whether the pendency of an action in another court alters the jurisdictional requirements of counterclaims which would otherwise be compulsory counterclaims because under Rule 13(a) Short counterclaimed only against Petro-Fina and Fancher, both Texas residents. The action against Scott was a cross-claim under Rule 13(g), and since we have held that action to be ancillary to the primary suit, no independent jurisdictional grounds are required. The rule is clearly stated in Wright, Federal Courts, (1963) at p." }, { "docid": "14494104", "title": "", "text": "or permissive under Fed. R.Civ.P. 13. If under Rule 13(a) the counterclaim is compulsory, it is within the ancillary jurisdiction of the district court and no independent basis of federal jurisdiction is required. Harris v. Steinem, 571 F.2d 119, 121 (2d Cir. 1978); Newburger, Loeb & Co., Inc. v. Gross, 563 F.2d 1057, 1070 (2d Cir. 1977), cert. denied, 434 U.S. 1035, 98 S.Ct. 769, 54 L.Ed.2d 782 (1978); United States v. Heyward-Robinson Co., 430 F.2d 1077, 1081 (2d Cir. 1970), cert. denied, 400 U.S. 1021, 91 S.Ct. 582, 27 L.Ed.2d 632 (1971). See generally 6 C. Wright & A. Miller, Federal Practice and Procedure § 1414 (1971 ed.). If however, the counterclaim is permissive in nature under Rule 13(b), an independent basis of federal jurisdiction must exist before the court may address the merits of Shearson’s claim. Harris v. Steinem, 571 F.2d at 122; Newburger, Loeb & Co., Inc. v. Gross, 563 F.2d at 1070-71; United States v. Heyward-Robinson Co., 430 F.2d at 1080. In the present case there is no dispute that both Shearson and the Spiegels are citizens of New York, and hence there is no federal jurisdiction over the counterclaim based upon diversity of citizenship and the requisite amount in controversy under 28 U.S.C. § 1332. No alternative basis of jurisdiction is suggested by the parties. Thus, the court may exercise jurisdiction over Shearson’s counterclaim only if it is compulsory. Rule 13(a) in pertinent part defines a compulsory counterclaim as one that “arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim . . . .” In interpreting this rule the Second Circuit has adopted the “logical relation” test, Newburger, Loeb & Co. v. Gross, 563 F.2d at 1071, which requires only a logical relationship between the main claim and the counterclaim rather than absolute identity of fact backgrounds between the two claims. United Artists Corp. v. Masterpiece Productions, 221 F.2d 213, 216 (2d Cir. 1955). This approach “attempts to analyze whether the essential facts of the various claims are so logically connected that considerations of judicial economy and" }, { "docid": "5342382", "title": "", "text": "FRCP 13(b) permits the filing of a counterclaim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party’s claim. So far as the counterclaims of Lee are concerned, B-L-S and Lee are the opposing parties. Moore’s Federal Practice, 1974, Vol. 3, p. 13-134 (hereafter Moore’s). Thus, if the counterclaims on account of the 1971 rain damage on the one hand, and the 1973 snow damage on the other, are compulsory, Lee must assert them, while, if not compulsory, he may assert them. But FRCP 13(a) and (b) are subject to the qualification that a permissive counterclaim must have an independent jurisdictional base, while a compulsory counterclaim need not have. The leading text writers and the cases are in agreement and are consistent on this point. Wright and Miller, Federal Practice and Procedure, Vol. 6, §§ 1414, 1422 (hereafter Wright and Miller); Moore’s, p. 13-379 et seq., p. 13-481. The jurisdiction of the court as to a compulsory counterclaim is ancillary jurisdiction. Wright and Miller, § 1422; Moore’s, p. 13-379. While these text writers may be somewhat critical of the requirement of an independent jurisdictional base in the case of a permissive counterclaim, as perhaps in conflict with the general policy of the federal courts to dispose of all the litigation at hand in á single suit for the sake of efficiency and economy, they nevertheless are in agreement that the cases are uniform in requiring a separate jurisdictional base for permissive counterclaims. And Wright and Miller, § 1414, calls attention to FRCP 82, which provides that the federal rules do not “extend or limit the jurisdiction of the United States district courts.” With these principles in mind, since both B-L-S and Lee are citizens of South Carolina, whether or not Lee’s two counterclaims were properly tried on the merits in this proceeding depend on whether or not they arose “out of the transaction or occurrence that is the subject matter of the opposing party’s claim.” FRCP 13(a), (b). Apparently that subject has not been addressed by this circuit, and" }, { "docid": "17517892", "title": "", "text": "see also Steel Co. v. Citizens for a Better Environment, — U.S. -,-, 118 S.Ct. 1003, 1012, 140 L.Ed.2d 210 (1998) (stating that deciding the merits before confirming jurisdiction “carries the courts beyond the bounds of authorized judicial action and thus offends fundamental principles of separation of powers”). Since MONY’s counterclaim sounds in state law, a federal court may not hear it unless it falls within the ambit of supplemental jurisdiction or is supported by an independent jurisdictional basis. See Toste Farm Corp. v. Hadbury, Inc., 70 F.3d 640, 646 (1st Cir.1995) (noting that a federal court has jurisdiction over a counterclaim only if it resides within the court’s supplemental jurisdiction or is supported by an independent jurisdictional basis). The parties appear to have assumed that MONY’s counterclaim was within the court’s supplemental jurisdiction. When considering supplemental jurisdiction, the nature of the counterclaim is crucial. Federal Rule of Civil Procedure 13 describes two types of counterclaims: compulsory and permissive. A compulsory counterclaim is one that “arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim.” Fed.R.Civ.P. 13(a). All counterclaims that are not compulsory are permissive. ,See Fed.R.Civ.P. 13(b). Only compulsory counterclaims can rely upon supplemental jurisdiction; permissive counterclaims require their own jurisdictional basis. The supplemental jurisdiction statute provides: “[I]n any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a). Section 1367 incorporates the common law doctrines of pendent and ancillary jurisdiction. See Penobscot Indian Nation v. Key Bank, 112 F.3d 538, 563 (1st Cir.1997), cert. denied, - U.S. -, 118 S.Ct. 297, 139 L.Ed.2d 229 (1997). Federal courts have ancillary jurisdiction over compulsory counterclaims. See McCaffrey v. Rex Motor Transp., Inc., 672 F.2d 246, 248 (1st Cir.1982); 6 Charles Alan Wright, Arthur R, Miller & Mary Kay Kane, Federal Practice & Procedure § 1414, at 99" }, { "docid": "16447804", "title": "", "text": "to, a principal claim over which it has jurisdiction, even though it might not have jurisdiction of the ancillary proceedings if it were an independent and original action or proceeding. Aetna Insurance Company v. Chicago, Rock Island and Pacific Railroad Company, 229 F.2d 584 (10th Cir. 1956); Wright, Federal Practice and Procedure; § 1414 at 69-71. This is so because the ancillary claim is referable to or dependent upon the jurisdiction of the court over the principal suit or proceeding. United States v. Acord, 209 F.2d 709 (10th Cir. 1954). In Inter-State National Bank of Kansas City v. Luther, 221 F.2d 382 (10th Cir. 1955), cert. dismissed 350 U.S. 944, 76 S.Ct. 297, 100 L.Ed. 823 (1956), we held that: Counterclaim under Rule 13, F.R.C.P., includes both setoff and recoupment, and is broader than either in that it includes other claims and may be used as a basis for affirmative relief. See Clark Code Pleading, 2d Ed. 637, cited 3 Moore’s Federal Practice, § 13.02, p. 9. Rule 13(a), F.R.C.P., provides for compulsory counterclaim “if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim * * *.” Rule 13(b) provides for a permissive counterclaim . . . the only difference . we need to note is that the compulsory counterclaim, being ancillary to the claim, derives its jurisdiction from the same source, whereas a permissive counterclaim not arising out of the same transaction or occurrence must rest upon independent grounds of jurisdiction . . . being of the view that the Bank impliedly consented to the jurisdiction of the court, the counterclaim was maintainable under Rule 13(b), F.R.C.P., whether compulsory or permissible. See 3 Moore’s Fed eral Practice §§ 13.18-13.19. (Emphasis supplied.) 221 F.2d 390. The courts have given the terms “transaction” and “occurrence” contained in Rule 13(a), supra, flexible and realistic constructions in order to effect “judicial economy”, i. e., trial in one action of all related controversies between the parties and, of course, the avoidance of multici-plicity of suits. . 503 F.2d, at 1198. In view of the singular" }, { "docid": "18814732", "title": "", "text": "permissive counterclaims must be dismissed unless they independently satisfy federal jurisdictional requirements. City of Cleveland v. Cleveland Electric Illuminating Co., 570 F.2d 123, 126-27 (6th Cir. 1978); Whigham v. Beneficial Finance Co., 599 F.2d 1322, 1323 (4th Cir. 1979); 3 Moore’s Federal Practice, ¶ 13.15[1] (1980). It is conceded that defendant’s counterclaim is not based on an independent ground of federal jurisdiction. Thus, the counterclaim must be dismissed if it is found to be permissible. Under the Federal Rules of Civil Procedure, a compulsory counterclaim “arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim .. . . ” Fed.R.Civ.P. 13(a). In contrast, a permissive counterclaim is a “claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party’s claim.” Fed. R.Civ.P. 13(b). This Circuit determines whether a counterclaim “arises out of” a transaction by examining if policies of judicial economy and doing complete justice will be served by entertaining the counterclaim, and if a “logical relationship” exists between plaintiff’s claim and the counterclaim. City of Cleveland v. Cleveland Electric Illuminating Co., supra, at 127. Based on similar criteria, numerous courts have examined whether a counterclaim for a balance due on a loan in a TILA suit is compulsory or permissive. Those courts holding for a compulsory status have found that the claims are interrelated, derived from a common factual basis and, therefore, are “logically related.” See, e. g., Plant v. Blazer Financial Services, supra, at 1363-64. Those courts holding for a permissive status have emphasized that while a literal application of Rule 13(a) would suggest an opposite result, a compulsory status for counterclaims would impair enforcement of the TILA by deterring plaintiffs through the threat of large counterclaims and by entangling federal courts in state law issues. See, e. g., Peterson v. United Accounts, Inc., 638 F.2d 1134, 1137 (8th Cir. 1981); Valencia v. Anderson Bros. Ford, 617 F.2d 1278, 1290-92 (7th Cir. 1980), rev’d on other grounds, - U.S. -, 101 S.Ct. 2266, 68 L.Ed.2d 783 (1981). The trend of" }, { "docid": "22180862", "title": "", "text": "claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.... (b) Permissive Counterclaims. A pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party’s claim. The Kanes argue that Triumph’s claim for indemnification against Magna had not matured and would not mature until a final judgment was entered against it, and, consequently, that the indemnity claim was a permissive rather than compulsory counterclaim. We disagree. The Kanes’ assertion that the compulsory or permissive status of a counterclaim is determined by whether the claim is matured or unmatured is incomplete. Under the language of Rule 13(b), a claim’s status as permissive turns on whether the claim “aris[es] out of the transaction or occurrence that is the subject matter of the opposing party’s claim.” If the claim does arise out of the same transaction or occur rence, it is not a permissive counterclaim, although, as seen below, it may not be required to be asserted. Pursuant to Rule 13(a), on the other hand, a claim’s compulsory status depends on whether (1) the claim arises out of the same transaction or occurrence that is the subject matter of the opposing party’s claim; and (2) the claim is one that the party “has” at the time that the party is to file his responsive pleading. See Harbor Ins. Co. v. Continental Bank Corp., 922 F.2d 357, 360 (7th Cir.1990) (claim which arises out of the same transaction or occurrence as opposing party’s claim is not permissive counterclaim under Rule 13(b); “the only reason it is not a Rule 13(a) counterclaim is that it did not exist when the complaint was filed.”). In determining whether Triumph’s indemnity claim against Magna meets the compulsory counterclaim test, we look to Magna’s third-party complaint against" }, { "docid": "14953330", "title": "", "text": "jurisdiction. And ancillary jurisdiction exists only if the counterclaim is compulsory, that is “if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim” within the meaning of rule 13(a) of the Federal Rules of Civil Procedure. On the other hand, if the counterclaim is permissive (see rule 13(b)), then it must be dismissed since it lacks an independent jurisdictional basis. See generally 6 Wright and Miller, Federal Practice and Procedure § 1409 (1971); 3 Moore’s Federal Practice, ¶¶ 13.15[1]; 13.-19[1] (1979). In determining whether a counterclaim is compulsory (i. e., whether it arises out of the transaction that is the subject matter of plaintiff’s claim), the Supreme Court has emphasized that the word “transaction” has a flexible meaning which may include a series of many occurrences that depend not so much on the immediateness of their connection, but upon their logical relationship. Moore v. New York Cotton Exchange, 270 U.S. 593, 46 S.Ct. 367, 70 L.Ed. 750 (1926). The Court in Moore specifically recognized that if essential facts alleged by one party enter into and constitute a part of the cause of action set forth in the opposing party’s counterclaim, that counterclaim is compulsory even though it may not be precisely identical to the federal cause of action and even though the counterclaim embraces additional allegations. More particularly, whether a counterclaim is compulsory within the guidelines thus set out in Moore is governed in this Circuit by Sue & Sam Mfg. Co. v. B-L-S Const. Co., 538 F.2d 1048 (4th Cir. 1976). There the Fourth Circuit stressed that rule 13(a) “should be given a broad realistic interpretation to avoid a multiplicity of suits.” Id. at 1051. And to assist in a determination of whether a counterclaim is compulsory, the court in Sue & Sam indicated that the district courts should consider the following four tests none of which is to be determinative: 1. Are the issues of fact and law raised by the claim and the counterclaim largely the same? 2. Would res judicata bar a subsequent suit on the counterclaims," }, { "docid": "1744670", "title": "", "text": "information to secure two patents characterized as claims for unfair competition); Trio Process Corp. v. L. Goldstein’s Sons, Inc., 250 F.Supp. 926 (E.D.Pa.1966) (false statements by defendant that plaintiffs invention was his own formed basis for unfair competition claim). Nonetheless, there is scant evidence that courts are willing to characterize claims essentially alleging fraud as claims for unfair competition. Jurisdiction must be found elsewhere, and given that diversity jurisdiction does not exist between the parties and that Counts VII-IX do not raise federal questions, 28 U.S.C. § 1367 is the only potential basis for jurisdiction. Before this Court can determine whether supplemental jurisdiction applies to Counts VII-IX, however, it must first address the pivotal question of whether Counts VII-IX should be characterized as compulsory or permissive counterclaims. As the Third Circuit has indicated: It is stated frequently that the determination of ancillary jurisdiction of a counterclaim in federal court must turn on whether the counterclaim is compulsory within the meaning of Rule 13(a).... What is meant is that the issue of the existence of ancillary jurisdiction and the issue as to whether a counterclaim is compulsory are to be answered by the same test. It is not a coincidence that the same considerations that determine whether a counterclaim is compulsory decide also whether the court has ancillary jurisdiction to adjudicate it. The tests are the same because Rule 13(a) and the doctrine of ancillary jurisdiction are designed to abolish the same evil, viz., piecemeal litigation in the federal courts. Great Lakes Rubber Corp. v. Herbert Cooper Co., 286 F.2d 631, 633-34 (3rd Cir.1961); see also Phillips Petroleum Co. v. United States Steel Corp., 566 F.Supp. 1093, 1096-97 (D.Del.1983). A counterclaim is compulsory if “it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim.” Fed.R.Civ.P. 13(a). Courts have held that the Rule 13 standard is satisfied when a “logical relationship” can be established between a counterclaim and one of the claims brought by the opposing party. Great Lakes Rubber Corp., 286 F.2d at 634. Several factors should be considered in evaluating whether a" }, { "docid": "18700051", "title": "", "text": "1979. This application is alleged to have contained material false allegations and intentional material omissions, without which probable cause would not have been established. Plaintiff alleges in sufficient detail when, where, and how his arrest was wrongfully procured by defendant Casati. Here plaintiff gives notice of a specific incident, not merely a conclusion that his rights have been violated. Any greater level of factual detail can be discovered by defendants before trial. The only case cited by the defendants to support their argument for greater specificity is Powell v. Jarvis, 460 F.2d 551 (2d Cir.1972). In that case plaintiff merely alleged that one of the defendants had signed a “false affidavit” without specifying the nature of the affidavit, when it was signed, or why it was false. None of these details are lacking in this case. II. Plaintiff’s Motion to Dismiss Defendant Casati's Counterclaim On June 2, 1982, defendant Casati filed a counterclaim in which he alleges in separate counts that the plaintiff Appletree libeled and slandered him. Plaintiff has moved to dismiss the counterclaim on the ground that this court lacks jurisdiction over it. The counterclaim is based on state law and no diversity of citizenship exists between the parties since all are citizens of Connecticut. Defendant Casati asserts that the court has ancillary jurisdiction over the subject matter of the counterclaim because it is compulsory in nature within the meaning of Fed.R.Civ.P. 13(a). “Ancillary jurisdiction is a concept which, inter alia, allows a federal court to adjudicate a compulsory counterclaim that does not independently meet the requirements for invocation of its jurisdiction.” Crouse-Hinds Co. v. InterNorth, Inc., 634 F.2d 690, 699 (2d Cir.1980). The critical issue, according to the language of Rule 13(a), in differentiating permissive from compulsory counterclaims is whether the counterclaim “arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim .. .. ” The Second Circuit, relying on the Supreme Court’s interpretation of Rule 13’s predecessor, has looked to the “logical relationship” between the claim and the counterclaim to determine whether they arise out of the same transaction" }, { "docid": "19719854", "title": "", "text": "the Court is defendant Regal’s motion to add David F. Grohne as a party counterdefendant to its counterclaim against Independence. Addition of parties-to counterclaims is governed by Rule 13(h) of the Federal Rules of Civil Procedure: (h) Joinder of Additional Parties. Persons other than those made parties to the original action may be made parties to a counterclaim in accordance with the provisions of Rules 19 and 20. In order to determine whether Mr. Grohne may be joined as an additional party to Regal’s counterclaim we must first determine whether Regal’s counterclaim against Independence is within the court’s jurisdiction and then we must consider whether the requirements for joinder of Rules 19 or 20 are met as Rule 13(h) mandates. II. JURISDICTION OVER THE COUNTERCLAIM Regal’s counterclaim is alleged to be compulsory under Rule 13(a) of the Federal Rules of Civil Procedure. Since no independent jurisdictional basis is alleged, the counterclaim cannot be deemed permissible and cognizable pursuant to Rule 13(b). Chance v. County Board of School Trustees 3. of McHenry County, 111., 332 F.2d 971 (7th Cir. 1964). Therefore, unless the counterclaim is compulsory within Rule 13(a) it may not be brought before this Court. Rule 13(a) states that a counterclaim against an opposing party is compulsory “ . . . if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim.” Fed.R.Civ.P. 13(a). If a counterclaim is compulsory, a federal court will have ancillary jurisdiction over it, Baker v. Gold Seal Liquors, Inc., 417 U.S. 467, 469 n.l, 94 S.Ct. 2504, 41 L.Ed.2d 243 (1974), and the requirements for compulsory counterclaims and ancillary jurisdiction have been held to be identical. Great Lakes Rubber Corp. v. Herbert Cooper Co., 286 F.2d 631 (3d Cir. 1961). Though several tests have been suggested to give content to the vacuous phrase “transaction or occurrence,” the most popular test among the commentators as well as the courts is the so-called “logical relationship” test. 6 C. Wright & A. Miller, Federal Practice and Procedure, § 1410 (1971); Kissell Co. v. Farley, 417 F.2d 1180 (7th Cir." }, { "docid": "19251068", "title": "", "text": "P. Mem. 34 (citing United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966)); P. Reply 18 (same).) Gristede’s fails to address this point directly, arguing instead that its counterclaims are “compulsory” under Federal Rule of Civil Procedure 13(a). (D. Mem. 32-33.) Thus, the Court addresses: (1) whether Gristede’s counterclaims are compulsory or permissive under Rule 13(a); and (2) if they are permissive, whether they fall within the Court’s supplemental jurisdiction pursuant to 28 U.S.C. § 1367. i) The Counterclaims Are Permissive, Not Compulsory A compulsory counterclaim is defined as: any claim that — at the time of its service — the pleader has against an opposing party if the claim: (A) arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim; and (B) does not require adding another party over whom the court cannot acquire jurisdiction. Fed.R.Civ.P. 13(a). Any counterclaim that is not compulsory by this definition is considered “permissive.” Fed.R.Civ.P. 13(b). The Second Circuit has instructed that: [w]hether a counterclaim is compulsory or permissive turns on whether the counterclaim arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim, and this Circuit has long considered this standard met when there is a logical relationship between the counterclaim and the main claim. Although the logical relationship test does not require an absolute identity of factual backgrounds, the essential facts of the claims must be so logically connected that considerations of judicial economy and fairness dictate that all the issues be resolved in one lawsuit. Jones v. Ford Motor Credit Co., 358 F.3d 205, 209 (2d Cir.2004) (internal citations, quotation marks, and brackets omitted). Gristede’s faithless servant counterclaims are clearly not compulsory; they are permissive. The Plaintiffs’ wage-and-hour claims center on Gristede’s chain-wide compensation practices for all co-managers and department managers. Gristede’s faithless servant counterclaims are not related to any aspect of these practices; rather, they focus on discrete allegations of misconduct — sexual harassment and credit card fraud — pertaining to only two Plaintiffs. The only possible" }, { "docid": "18700052", "title": "", "text": "on the ground that this court lacks jurisdiction over it. The counterclaim is based on state law and no diversity of citizenship exists between the parties since all are citizens of Connecticut. Defendant Casati asserts that the court has ancillary jurisdiction over the subject matter of the counterclaim because it is compulsory in nature within the meaning of Fed.R.Civ.P. 13(a). “Ancillary jurisdiction is a concept which, inter alia, allows a federal court to adjudicate a compulsory counterclaim that does not independently meet the requirements for invocation of its jurisdiction.” Crouse-Hinds Co. v. InterNorth, Inc., 634 F.2d 690, 699 (2d Cir.1980). The critical issue, according to the language of Rule 13(a), in differentiating permissive from compulsory counterclaims is whether the counterclaim “arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim .. .. ” The Second Circuit, relying on the Supreme Court’s interpretation of Rule 13’s predecessor, has looked to the “logical relationship” between the claim and the counterclaim to determine whether they arise out of the same transaction or occurrence. Harris v. Steinem, 571 F.2d 119, 123 (2d Cir.1978). See, e.g., United States v. Heyward-Robinson Co., 430 F.2d 1077, 1081 (2d Cir.1970). “This flexible approach to Rule 13 problems attempts to analyze whether the essential facts of the various claims are so logically connected that considerations of judicial economy and fairness dictate that all the issues be resolved in one lawsuit [citations omitted]. Thus, precise identity of issues and evidence between claim and counterclaim is not required.” 571 F.2d at 123. With this test in mind and realizing that Rule 13 should be generously construed, see, e.g., Columbia Plaza Corp. v. Security National Bank, 525 F.2d 620, 625 (D.C.Cir.1975), I turn to the facts in the instant case. In the second count of his complaint, plaintiff Appletree alleges false arrest by defendant Casati on January 4, 1980 for an incident that allegedly occurred on December 21, 1979. Defendant Casati alleges in his counterclaim that the statements plaintiff has made in relation to the December 21, 1979 incident are defamatory in nature. The truth" } ]

[ { "docid": "11813966", "title": "", "text": "McGOWAN, Circuit Judge. On these appeals from a jury conviction of robbery, two alleged errors in the course of the trial itself are advanced as requiring reversal. One has to do with the failure of the trial court to direct the Government that it could not use a conviction to impeach appellant Hood. The other derives from the failure to restrict the cross-examination of appellant’s alibi witness. We affirm because we do not believe reversal is necessitated by either, or both together. I At the close of the Government’s case, defense counsel approached the bench to report that appellant Hood had earlier been convicted of a felony in the District Court after being waived from the Juvenile Court. Counsel then requested the court to rule on whether, if Hood took the witness stand, the Government would be permitted to bring out this prior conviction. Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965). The court ruled that it could come in for impeaching purposes as contemplated in 14 D.C.Code § 305 (Supp. V, 1966). Hood did not testify; and it is now urged upon us that this circumstance was unduly prejudicial to both Hood and Jackson. No representation was made to the trial court as to what Hood’s testimony would be, or why it was important that, at least in this case, the court’s discretion should be exercised to prohibit introduction of the prior conviction. Indeed, the court was not even told the nature of the crime for which Hood had previously been convicted. Defense counsel simply asked for a ruling and referred to Luck. On this kind of a record, we are not prepared to find that there has been an abuse by the trial court of the discretion which we have held to be reposed in it. If Luck made anything clear, it was that the defense is ill-advised to content itself simply with citing Luck. That case establishes only that Congress, in legislating to the effect that prior convictions may be used to impeach, left some room for the play of judicial discretion over the" } ]

[ { "docid": "12850231", "title": "", "text": "his wife at the time.” 627 F.2d at 1210 n. 28. . Lewis could be considered a special case because the defendant had testified that he was ignorant of street drug transactions. See 626 F.2d at 947. Thus, his prior conviction served not only to impeach his credibility in general but also to rebut specific testimony. However, while our opinion discussed this additional reason for admitting his prior narcotics conviction, see id. at 950-51, our analysis did not treat this reason as critical, see id. at 948-50. . We pioneered the dominant approach in Luck v. United States, 348 F.2d 763, 768 (D.C. Cir. 1965) (trial judge may exclude prior felony conviction where “the prejudicial effect of impeachment far outweighs the probative relevance of the prior conviction”) and Gordon v. United States, 383 F.2d 936, 939 (D.C.Cir.1967), cert. denied, 390 U.S. 1029, 88 S.Ct. 1421, 20 L.Ed.2d 287 (1968) (burden of persuasion is on the defendant to show why prior conviction should be excluded). See 3 J. Weinstein & M. Berger, Weinstein’s Evidence ¶ 609[03] (1981) (surveying pre-Rule 609 case law). The Luck-Gordon approach assumes that a prior conviction is probative of credibility; it will be excluded only if the defendant shows unusual prejudice. In so concluding, we recognize the statement in Gordon, 383 F.2d at 940, that “[a]cts of violence ... generally have little or no direct bearing on honesty and veracity.” But to say that violent crimes have no “direct bearing” on veracity is not to say that they have no bearing. Moreover, any statement that felonies involving violence have no bearing on veracity at all would be inconsistent with admitting convictions for these felonies unless the prejudicial effect “far outweighs” the probative value. . 120 Cong.Rec. 40,891 (1974) (statement of Rep. Hungate, House floor manager for the Rules of Evidence, explaining conference committee version of Rule 609(a)); see, e.g., United States v. Martin, 562 F.2d 673, 680 n. 16 (D.C. Cir. 1977); Government of the Virgin Islands v. Carino, 631 F.2d 226, 228 (3d Cir.1980); United States v. Ortega, 561 F.2d 803, 806 (9th Cir. 1977). But" }, { "docid": "22908591", "title": "", "text": "as indicating that the judge felt powerless to exclude the evidence of convictions, if he thought that course should be taken. As to whether this ruling was proper, even the decision in Luck v. United States, supra, heavily relied on by appellant, emphasized the extent of the trial judge’s discretion to exclude or admit the evidence. In that case, the trial judge had allowed the defendant to be asked in cross-examination whether he had pleaded guilty to grand larceny; the appellate court held that this was not reversible error. More recently, Luck has been construed to allow impeachment of a defendant by convictions involving fraud or stealing, which “are universally regarded as conduct which reflects adversely on a man’s honesty and integrity.” Gordon v. United States, 383 F.2d 936, 940 (D.C.Cir. 1967). At least three, if not more, of Palumbo’s convictions mentioned to Judge Cooper fell within this class. It is true that some of them were fairly ancient, but even the more recent ones included receiving stolen property and robbery. We would have a different question had the focus of inquiry been Palumbo’s alleged conviction for rape in 1929, but that was not mentioned to the judge, and he did not consider it. Palumbo argues that his testimony was extremely important to corroborate the alibi witnesses about August 29 and to explain his presence in the Terminal when he was arrested. However, in light of the direct conflict of testimony between the agents and Pa-lumbo which would have resulted, see Brooke v. United States, 385 F.2d 279, 285-286 (D.C.Cir. 1967), and the nature of the convictions, we would not “disturb such highly discretionary adjudications unless the wisdom of doing so is very clear.” Id. at 286. In this case, we cannot say that it is. In sum, we think that Judge Cooper did exercise his discretion and did not abuse it. Appellant has additional peripheral arguments on the threatened use of convictions to impeach. Thus, he claims that the court’s ruling denied him constitutional rights under the fifth and sixth amendments. We do not agree that use of a" }, { "docid": "4193914", "title": "", "text": "of an “infamous crime,” such as treason, felonies, and acts of falsehood, was incompetent as a witness. The strict doctrine of incompetency was based on the theory that one convicted of an “infamous crime” was a person of such dubious character that he was unworthy of belief and should not be permitted to testify at all. While this theory of incompetency has not persisted in Anglo-American law, the principle of presumed untrustworthiness associated with prior convictions has survived. The present rationale for admitting prior conviction evidence for impeach ment purposes is that the jury should be informed about the character of a witness who asks the jury to believe his testimony. The record of prior convictions is considered indicative of the defendant’s criminal nature which, in turn, suggests a propensity to falsify his testimony: “[t]he reason for disbelieving the witness is his supposed readiness to lie inferred from his general readiness to do evil which is predicated upon his former conviction of a crime.” Although firmly entrenched in criminal justice procedures, the admission of prior conviction evidence to impeach the defendant’s credibility has been persistently criticized in recent years. These criticisms fall into essentially two categories. First, some critics argue that the theory underlying the use of prior conviction evidence to impeach credibility is often too tenuous to withstand a relevancy attack. As Chief Justice Burger pointed out while on the Court of Appeals for the District of Columbia, \"In common human experience acts of deceit, fraud, cheating, or stealing, for example, are universally regarded as conduct which reflects adversely on a man’s honesty and integrity. Acts of violence, on the other hand, which may result from a short temper, a combative nature, extreme provocation, or other causes, generally have little or no direct bearing on honesty and veracity.” Thus, under this view, not all crimes are relevant to the question of veracity. Second, other critics argue that the criminal justice system expects too much of a juror when it asks him to distinguish between impeaching evidence and substantive evidence. Although prior conviction evidence should be used only for evaluating" }, { "docid": "17269395", "title": "", "text": "defense might have called Dr. Papish as a witness during the trial. See Government brief at 20. Since Dr. Papish’s doubts concerning appellant’s mental condition were only revealed to the defense on the day the trial started, however, the defense had no opportunity to ask Dr. Papish to spend more time with appellant. In the absence of further examination, the doctor’s testimony would presumably simply have explained his conclusion that further examination was necessary to determine appellant’s mental state at the time of the offense. . Dr. Papish’s letter, see, 174 U.S.App.D.C. p. -, 528 F.2d at 663, supra, is the principal evidence that it might have been possible to develop an insanity defense. See also Trial Tr. at 117-133. . In the discretion of the trial judge, multiple convictions may be admitted if they bear on credibility. See, e. g., Gordon v. United States, 127 U.S.App.D.C. 343, 345 n.2a, 383 F.2d 936, 938 n.2a (1967). The District Court’s discretion must be guided by the factors set forth in Gordon and in Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965). . See United States v. McIntosh, 138 U.S.App.D.C. 237, 426 F.2d 1231 (1970). We note, however, that [wjhere multiple convictions of various kinds can be shown, strong reasons arise for excluding those which are for the same crime because of the inevitable pressure on lay jurors to believe that “if he did it before he probably did so this time.” As a general guide, those convictions which are for the same crime should be admitted sparingly; one solution might well be that discretion be exercised to limit the impeachment by way of a similar crime to a single conviction and then only when the circumstances indicate strong reasons for disclosure, and where the conviction directly relates to veracity. Gordon v. United States, supra note 19, 127 U.S.App.D.C. at 347, 383 F.2d at 940 (Burger, J.). . Setting aside the high likelihood that the jury would draw an improper inference based on the prior conviction, it might be possible to argue that the sequence of questioning constituted the" }, { "docid": "2192341", "title": "", "text": "the prior conviction to the issue of credibility.” The impact of criminal convictions will often be damaging to an accused and it is admittedly difficult to restrict its impact, by cautionary instructions, to the issue of credibility. The test of Luck, however, is that to bar them as impeachment the court must find that the prejudice must “far outweigh” the probative relevance to credibility, or that even if relevant the “cause of truth would be helped more by letting the jury hear the defendant’s story than by the defendant’s foregoing that opportunity because of the fear of prejudice founded upon a prior conviction.” The burden of persuasion in this regard is on the accused; and, once the issue is raised, the District Court should make an inquiry, allowing the accused an opportunity to show why judicial discretion' should be exercised in favor of exclusion of the criminal rec ord. This, admittedly, places a very difficult burden on trial judges and some added guidelines are needed even at risk of adding to the burdens of the trial courts. In considering how the District Court is to exercise the discretionary power we granted, we must look to the legitimate purpose of impeachment which is, of course, not to show that the accused who takes the stand is a “bad” person but rather to show background facts which bear directly on whether jurors ought to believe him rather than other and conflicting witnesses. In common human experience acts of deceit, fraud, cheating, or stealing, for example, are universally regarded as conduct which reflects adversely on a man’s honesty and integrity. Acts of violence on the other hand, which may result from a short temper, a combative nature, extreme provocation, or other causes, generally have little or no direct bearing on honesty and veracity. A “rule of thumb” thus should be that convictions which rest on dishonest conduct relate to credibility whereas those of violent or assaultive crimes generally do not; traffic violations, however serious, are in the same category. The nearness or remoteness of the prior conviction is also a factor of no" }, { "docid": "6171610", "title": "", "text": "BAZELON, Chief Judge: Appellant was convicted by a jury of assault with a deadly weapon and carrying a dangerous weapon. 22 D.C.Code §§ 502 and 3204. On appeal, he has urged two points: 1) that the trial court misapplied the Luck rule on impeachment by a prior record, and 2) that he was denied a fair trial by the Government’s failure to conduct a fingerprint test on the gun involved in the alleged assault. I. Under Luck v. United States, 121 U. S.App.D.C. 151, 348 F.2d 763 (1965) and Gordon v. United States, 127 U.S.App. D.C. 343, 383 F.2d 936 (1967), “[t]he defendant who has a criminal record may ask the court to weigh the probative value of the convictions as to the credibility against the degree of prejudice which the revelation of his past crimes would cause; and he may ask the court to consider whether it is more important for the jury to hear his story than to know about prior convictions in relation to his credibility.” 127 U.S. App.D.C. at 346, 383 F.2d at 939. Luck issues loomed large at trial in the present case, which was in large measure a “credibility contest” between appellant and the five other persons who were with him when the assault occurred. Defense counsel attacked the credibility of the Government’s witnesses by attempting to show that they were conspiring to “frame” appellant and by bringing out prior inconsistent statements to cast doubt on their veracity. From the transcript of the Luck hearing, it is apparent that this aspect of the case played a major role in the trial court’s concluding that one of appellant’s prior convictions could be introduced to impeach him. We agree with the trial judge that the pitched battle on the credibility point heightens the importance of the Luck ruling. We disagree with his conclusion, however, that “[t]he ruling on the Luck matter has nothing to do with the Defendant’s right to take the stand.” While, as a matter of law, a defendant is always vouchsafed the constitutional right to testify regardless of the trial court’s grant or" }, { "docid": "22831521", "title": "", "text": "he has not demonstrated that a substantial right was prejudiced. As is clear from its text, Fed.R. Evid. 609(a)(1) requires a weighing of the probative value of a prior conviction against the prejudicial effect to the defendant of that evidence. The prosecution bears the burden of establishing that the probative value of admitting a prior conviction outweighs its prejudicial effect. United States v. Hendershot, 614 F.2d 648, 653 (9th Cir.1980). Factors a district court should consider in reaching the appropriate balance are: (1) the impeachment value of the prior crime; (2) the temporal relationship between the conviction and the subsequent history of the defendant; (3) the similarity between the prior offense and the offense charged; (4) the importance of the defendant’s testimony; and (5) the centrality of the credibility issue. United States v. Cook, 608 F.2d at 1185, n. 8. We review a district court’s ruling on a motion under Rule 609(a)(1) for abuse of discretion. See United States v. Mehrmanesh, 682 F.2d 1303, 1309 (9th Cir.1982). But, even if we conclude that the district court’s ruling is erroneous, reversal is required only if a defendant demonstrates that a substantial right has been prejudiced. See United States v. Portillo, 699 F.2d 461, 464-65 (9th Cir.1982). A careful review of the record before us compels the conclusion that the district court abused its discretion in finding that the government met its burden of demonstrating that the probative value of Bagley’s prior robbery convictions outweighed their prejudicial effect. The purpose of impeachment is to challenge the credibility of a witness. See Gordon v. United States, 383 F.2d 936, 940 (D.C.Cir.1967), cert. denied, 390 U.S. 1029, 88 S.Ct. 1421, 20 L.Ed.2d 287 (1968). Proper impeachment is not, in itself, evidence of guilt or innocence; it merely casts a doubt on other evidence going directly to those issues which the trier of fact should consider. Consistent with this purpose, prior felony convictions which do not in themselves implicate the veracity of a witness may have little impact on credibility. For example, the question of the truth or falsity of a witness’s statement generally is" }, { "docid": "22154194", "title": "", "text": "decisions. “Convictions for crime,” we have said, “retain statutorily some degree of relevance to trustworthiness which Luck does not automatically dispel.” What Luck taught was that Congress “left some room for the play of judicial discretion over the unfolding circumstances of the immediate trial,” and thereby “endowed the trial judge with a new resource of flexibility in conducting the search for truth.” The trial judge’s function, we have explained, is to weigh the probative contributions that impeachment might make on issues of credibility against the ever-present risk of prejudice to the accused on the issue of guilt, and to exercise discretion according to how the cause of truth would seem to be better served. And that discretionary exercise, we have equally emphasized, is to be “accorded a respect appropriately reflective of the inescapable remoteness of appellate review.” In Gordon v. United States, we announced guidelines to assist trial judges in making Luck determinations. Although the case at bar was tried before Gordon was decided, the trial judge’s ruling comports well with Gordon criteria. The conviction used for appellant’s impeachment was for robbery, an offense involving stealing — “conduct,” we said in Gordon, “which reflects adversely on a man’s honesty and integrity.” The age of the conviction, about 14 years when appellant testified, presents no problem of remoteness in Gordon terms, for appellant, having been incarcerated until late 1964 — 15 months befare the instant crimes — could hardly be said to have led the “legally blameless life” which might dissipate the relevance of a past conviction. And although the impeachment here was by a conviction of robbery, the offense charged in two of the counts on which appellant was being tried, the trial judge, by limiting the impeachment to but one of the two prior robbery convictions, exercised a discretion in harmony with a suggestion that Gordon was later to make. That suggestion was “to limit the impeachment by way of a similar crime to a single conviction and then only when the circumstances indicate strong reasons for disclosure, and where the conviction directly relates to veracity.” The Gordon criteria" }, { "docid": "8056719", "title": "", "text": "problems which it thought might be ameliorated by admitting only one such prior conviction, as was. the case here. On the question of whether robbery has any implications for veracity, the court fairly and accurately identified our comments on the subject in Gordon, supra note 1, and expressly relied upon them. We think it was entitled to do so. It was, lastly, urged upon the trial court that appellant’s testimony was of such a nature that the jury might reach an unjust verdict if it did not hear it. We have in the record, of course, only trial counsel’s brief characterization of what that testimony would be, but we have no reason to believe that counsel summarized it inaccurately or failed to put it in its best light. Such as it was, it was all appellant had. And, so long as we subscribe to the principle and practice that, in our deep-seated horror of convicting the innocent, the Government may always be put to its proof that the accused is guilty beyond a reasonable doubt, one may wonder what governmental interest was served by keeping appellant’s story from the ears of the jury by insisting upon the identification of its narrator as one with a criminal past. But, on this- record, we cannot say that the shadow of possible error lay So darkly over these proceedings that this conviction must be reversed because of the court’s failure to let appellant tell his story without being impeached by his prior conviction. We are, thus, not persuaded by that branch of appellant’s challenge which is rooted in the concept of trial court discretion. An appellate claim of abuse by a trial judge in an area where his first-hand impressions are important has always — and rationally so — an uphill road to travel. This was not unknown to this court when it decided Luck, but Luck did make available to' the trial judge an alternative which it had been assumed for fifty years he never had, namely the power to deny the weapon of impeachment to the prosecution in a case where" }, { "docid": "5343948", "title": "", "text": "McCord, 420 F.2d 255 (1969). The simple answer to the Government’s argument is that none of these cases involved Rule 609. Luck had held that, under the then applicable version of D.C.Code § 14-305, trial courts should exercise discretion in determining whether to permit impeachment by prior conviction. 348 F.2d at 767-69. Gordon represented the effort of this tribunal to be helpful to the District Court in its exercise of that discretion. The nature of the prior crime was one factor identified in both the Luck and Gordon opinions as relevant to the impeachment issue. When Judge (now Chief Justice) Burger, writing in Gordon, characterized stealing as “conduct which reflects adversely on a man’s honesty and integrity,” he was not holding that all prior convictions for theft and related crimes were automatically admissible for impeachment purposes. He said merely that such offenses had some bearing on an individual’s credibility, a bearing which the trial court should consider in exercising its discretion. By contrast, the Gordon opinion noted, acts of violence “generally have little or no direct bearing on honesty and veracity,” thus implying that virtually any showing of prejudicial effect should be sufficient to exclude evidence of such prior convictions. See 383 F.2d at 940. The issue under Rule 609(a)(2) is entirely different from that confronted by this court in Gordon, Simpson, and other cases descendant from Luck. The new Rule provides that a prior conviction for a crime involving dishonesty or false statement is automatically admissible for impeachment purposes. With respect to such evidence, the trial court enjoys no discretion. See text accompanying note 20 supra. In its Conference Committee Report, Congress has spelled out the meaning of the phrase “dishonesty or false statement” as it is used in Rule 609(a)(2). See text preceding note 26 supra. The Report plainly shows that the set of crimes involving dishonesty or false statement under the Rule is not coterminous with the set of crimes bearing on credibility in the Luck-Gordon analysis. The Gordon and Simpson precedents are not controlling in this case, and indeed are essentially irrelevant. As we indicated at" }, { "docid": "5567293", "title": "", "text": "setting down several rules of thumb to aid the trial courts. He considered convictions for dishonesty to be more readily admissible than those for violent or assaultive crimes, which may result from a short temper, provocation, or combative nature and are unrelated to honesty or veracity. Remoteness is a factor. Also the judge may wish to exclude the potentially prejudicial matter in order to make it possible for the defendant to take the stand and from his mouth give his version of the ease rather than remain silent for fear of damaging impeachment. With respect to the particular problem raised by the instant case the Court said in Gordon: A special and even more difficult problem arises when the prior conviction is for the same or substantially the same conduct for which the accused is on trial. Where multiple convictions of various kinds can be shown, strong reasons arise for excluding those which are for the same crime because of the inevitable pressure on lay jurors to believe that “if he did it before he probably did so this time.” As a general guide, those convictions which are for the same crime should be admitted sparingly; one solution might well be that discretion be exercised to limit the impeachment by way of a similar crime to a single conviction and then only when the circumstances indicate strong reasons for disclosure, and where the conviction directly relates to veracity. 383 F.2d at 940. In the instant case the prosecutor had another conviction by which he could impeach the defendant, for issuance of a fraudulent check, which bore directly on honesty. But he elected to ask about only the Dyer Act convictions and disclaimed asking about the check case. In these circumstances the rationale that the prosecution was seeking with the only, or even the best, tool to probe the defendant’s veracity is palpably inapplicable. Within the range of the trial court’s discretion, the interest of both prosecution and defendant could have been protected by simply limiting the interrogation. The choice was not solely between letting the defendant appear as “a witness" }, { "docid": "2192338", "title": "", "text": "we are satisfied that the trial judge did consider the point and exercise his discretion concerning the prior convictions which Appellant now argues should be excluded; as we have said before, absent plain error we will not find an abuse of discretion where there has been no meaningful invocation of that discretion. See Hood v. United States, 125 U.S.App.D.C. 16, 365 F.2d 949 (1966). Nonetheless, we are moved by the arguments of counsel here as well as by the need for clarification relating to the problem of prior-crimes impeachment, see, e. g., Stevens v. United States, 125 U.S.App.D.C. 239, 370 F.2d 485 (1966) (Fahy, J., dissenting), to set forth some observations about our decision in Luck. Because of the direct conflict in the evidence the verdict necessarily turned on how the jury resolved the credibility contest between the complainant and the defendant. Appellant’s argument now is that while it was appropriate for him to impeach the complaining witness with a prior criminal record, it was improper to allow impeachment of his own credibility by asking him about his criminal convictions, notwithstanding his failure to raise the issue. The rationale of our Luck opinion is important; it recognized that a showing of prior convictions can have genuine probative value on the issue of credibility, but that because of the potential for prejudice, the receiving of such convictions as impeachment was discretionary. The defendant who has a criminal record may ask the court to weigh the probative value of the convictions as to the credibility against the degree of prejudice which the revelation of his past crimes would cause; and he may ask the court to consider whether it is more important for the jury to hear his story than to know about prior convictions in relation to his credibility. We contemplated the possibility of allowing some convictions to be shown and some excluded; examples are to be found in those which are remote and those which have no direct bearing on veracity, and those which because of the peculiar circumstances at hand might better be excluded. The Luck opinion contemplated an" }, { "docid": "22908590", "title": "", "text": "no discretion to bar use of prior convictions to impeach a defendant. In short, we hold that a trial judge may prevent such use, if he finds that a prior conviction negates credibility only slightly but creates a substantial chance of unfair prejudice, taking into account such factors as the nature of the conviction, its bearing on veracity, its age, and its propensity to influence the minds of the jurors improperly. We turn now to what actually occurred in this case. Defense counsel first brought the question to Judge Cooper’s attention after the Government rested, and submitted a memorandum of law. The judge’s first “reaction” was that in view of the proposed testimony of the defendant, which would directly contradict the testimony of the government agents, he would not “preclude the Government” from bringing by “approved methods * * * to the jury the question of the veracity of the defendant.” The next morning, after reading counsel’s memorandum, the judge stated that he would “adhere to my original reaction.” We do not read this record as indicating that the judge felt powerless to exclude the evidence of convictions, if he thought that course should be taken. As to whether this ruling was proper, even the decision in Luck v. United States, supra, heavily relied on by appellant, emphasized the extent of the trial judge’s discretion to exclude or admit the evidence. In that case, the trial judge had allowed the defendant to be asked in cross-examination whether he had pleaded guilty to grand larceny; the appellate court held that this was not reversible error. More recently, Luck has been construed to allow impeachment of a defendant by convictions involving fraud or stealing, which “are universally regarded as conduct which reflects adversely on a man’s honesty and integrity.” Gordon v. United States, 383 F.2d 936, 940 (D.C.Cir. 1967). At least three, if not more, of Palumbo’s convictions mentioned to Judge Cooper fell within this class. It is true that some of them were fairly ancient, but even the more recent ones included receiving stolen property and robbery. We would have a" }, { "docid": "2192342", "title": "", "text": "trial courts. In considering how the District Court is to exercise the discretionary power we granted, we must look to the legitimate purpose of impeachment which is, of course, not to show that the accused who takes the stand is a “bad” person but rather to show background facts which bear directly on whether jurors ought to believe him rather than other and conflicting witnesses. In common human experience acts of deceit, fraud, cheating, or stealing, for example, are universally regarded as conduct which reflects adversely on a man’s honesty and integrity. Acts of violence on the other hand, which may result from a short temper, a combative nature, extreme provocation, or other causes, generally have little or no direct bearing on honesty and veracity. A “rule of thumb” thus should be that convictions which rest on dishonest conduct relate to credibility whereas those of violent or assaultive crimes generally do not; traffic violations, however serious, are in the same category. The nearness or remoteness of the prior conviction is also a factor of no small importance. Even one involving fraud or stealing, for example, if it occurred long before and has been followed by a legally blameless life, should generally be excluded on the ground of remoteness. A special and even more difficult problem arises when the prior conviction is for the same or substantially the same conduct for which the accused is on trial. Where multiple convictions of various kinds can be shown, strong reasons arise for excluding those which are for the same crime because of the inevitable pressure on lay jurors to believe that “if he did it before he probably did so this time.” As a general guide, those convictions which are for the same crime should be admitted sparingly; one solution might well be that discretion be exercised to limit the impeachment by way of a similar crime to a single conviction and then only when the circumstances indicate strong reasons for disclosure, and where the conviction directly relates to veracity. Of course, there are many other factors that may be relevant in deciding" }, { "docid": "22154195", "title": "", "text": "used for appellant’s impeachment was for robbery, an offense involving stealing — “conduct,” we said in Gordon, “which reflects adversely on a man’s honesty and integrity.” The age of the conviction, about 14 years when appellant testified, presents no problem of remoteness in Gordon terms, for appellant, having been incarcerated until late 1964 — 15 months befare the instant crimes — could hardly be said to have led the “legally blameless life” which might dissipate the relevance of a past conviction. And although the impeachment here was by a conviction of robbery, the offense charged in two of the counts on which appellant was being tried, the trial judge, by limiting the impeachment to but one of the two prior robbery convictions, exercised a discretion in harmony with a suggestion that Gordon was later to make. That suggestion was “to limit the impeachment by way of a similar crime to a single conviction and then only when the circumstances indicate strong reasons for disclosure, and where the conviction directly relates to veracity.” The Gordon criteria are, as we have indicated, just guidelines, and not unbending rules inexorably determinative of the problem as to whether and to what extent impeachment should be permitted. Judicial discretion, in an endeavor to enable the jury to get at the truth, is the soul of any satisfactory resolution. Here the critical inquiry was on credibility, as between the Government’s two identification witnesses and appellant’s two alibi witnesses — a situation wherein “there was a greater, not less, compelling reason for exploring all avenues which would shed light on which of the * * * witnesses was to be believed.” It was quite evident, when the Luck request was advanced, that appellant’s testimony would be calculated to support the alibi already related by his witnesses, and as events turned out his own testimony did not add any significant details to those the jury had already been given. All circumstances considered, we think the trial judge was at liberty to determine that “with credibility so vital, the cause of truth was not likely to be advanced by" }, { "docid": "6171611", "title": "", "text": "F.2d at 939. Luck issues loomed large at trial in the present case, which was in large measure a “credibility contest” between appellant and the five other persons who were with him when the assault occurred. Defense counsel attacked the credibility of the Government’s witnesses by attempting to show that they were conspiring to “frame” appellant and by bringing out prior inconsistent statements to cast doubt on their veracity. From the transcript of the Luck hearing, it is apparent that this aspect of the case played a major role in the trial court’s concluding that one of appellant’s prior convictions could be introduced to impeach him. We agree with the trial judge that the pitched battle on the credibility point heightens the importance of the Luck ruling. We disagree with his conclusion, however, that “[t]he ruling on the Luck matter has nothing to do with the Defendant’s right to take the stand.” While, as a matter of law, a defendant is always vouchsafed the constitutional right to testify regardless of the trial court’s grant or denial of his request for immunity from impeachment by his prior criminal record, as a practical matter an adverse ruling may effectively foreclose a defendant from taking the witness stand, lest his past misdeeds be his undoing at his present trial. The prior record which the trial judge held admissible was a 1954 housebreaking and larceny conviction. A man who steals is not necessarily a man who lies. A conviction for housebreaking, unlike one for perjury or false pretenses, sheds little light on the likelihood that the accused has lied on the stand. The prejudicial propensity of past convictions demands that as the probative value of a conviction lessens, greater caution be exercised in admitting it into evidence and that the trial judge explain to the jury the lesser weight to be given the conviction in evaluating the witness’ testimony. Moreover, whatever the relevance of a recent housebreaking conviction, a housebreaking conviction which predated appellant’s instant trial by nearly fourteen years is of doubtful significance. The trial judge’s decision to admit the conviction was premised" }, { "docid": "5567292", "title": "", "text": "factors might be relevant, such as the nature of the prior crimes, the length of the criminal record, the age and circumstances of the defendant, and, above all, the extent to which it is more important to the search for truth in a particular case for the jury to hear the defendant’s story than to know of a prior conviction. The goal of a criminal trial is the disposition of the charge in accordance with the truth. The possibility of a rehearsal of the defendant’s criminal record in a given case, especially if it means that the jury will be left without one version of the truth, may or may not contribute to that objective. The experienced trial judge has a sensitivity in this regard which normally can be relied upon to strike a reasonable balance between the interests of the defendant and of the public. 348 F.2d at 769. In Gordon v. United States, 127 U.S.App.D.C. 343, 383 F.2d 936 (1967) Judge (now Chief Justice) Burger expanded on the Luck test with considerable specificity, setting down several rules of thumb to aid the trial courts. He considered convictions for dishonesty to be more readily admissible than those for violent or assaultive crimes, which may result from a short temper, provocation, or combative nature and are unrelated to honesty or veracity. Remoteness is a factor. Also the judge may wish to exclude the potentially prejudicial matter in order to make it possible for the defendant to take the stand and from his mouth give his version of the ease rather than remain silent for fear of damaging impeachment. With respect to the particular problem raised by the instant case the Court said in Gordon: A special and even more difficult problem arises when the prior conviction is for the same or substantially the same conduct for which the accused is on trial. Where multiple convictions of various kinds can be shown, strong reasons arise for excluding those which are for the same crime because of the inevitable pressure on lay jurors to believe that “if he did it before he" }, { "docid": "9335709", "title": "", "text": "benefit of the accused’s testimony. Here the housebreaking and larceny conviction came in 1959; when the others occurred we know not. Moreover, two of the convictions the judge would have let in were for larceny, one of the offenses with which appellant was charged. And notwithstanding the judge’s elimination of some of the convictions, we discern no effort to weigh the prejudicial effect of impeachment by those remaining upon such testimonial contribution as appellant could have been expected to make. Even more importantly, we have recognized, from early in the Luck era, that “where inferences founded upon unexplained acts are likely to be heavily operative, the court’s discretion to let the jury hear the accused’s story, unaccompanied by a recital of his past misdeeds, may play an important part in the achievement of justice.” In the case at bar, appellant’s version of the affair, unembarrassed by mention of his previous difficulties with the law, could very well have been crucial. The success of the prosecution depended entirely upon the strength of an inference from appellant’s possession of the stolen saxophone that he was the housebreaker who stole it. Unless the fact of possession was refuted or satisfactorily explained — and ostensibly only appellant could possibly do either — that fact was “likely to be -heavily operative” against him. The Government argues, however, that appellant should not benefit from an application of Luck principles because appellant’s trial counsel made no representation as to what appellant’s testimony would be, or as to the unavailability of other witnesses to establish his defense. We have said many times that it is for defense counsel to invoke Lwcfc, and to invoke it in a meaningful way, and this, of course, will necessitate initially some explanation of the theory and testimonial details of the defense where, as usually is the case, they cannot otherwise be made known to the court. At the same time, we have admonished that, once the Luck issue is raised, defense counsel’s shortcomings do not mitigate the need for an exercise of judicial discretion. Certainly there is nothing to commend a requirement" }, { "docid": "2192337", "title": "", "text": "BURGER, Circuit Judge: Appellant was convicted of robbery and assault with a dangerous weapon. On appeal this Court remanded the case to the District Court without considering the merits when it appeared that the District Court had indicated willingness to grant a new trial because of newly discovered evidence. The new evidence was that the complaining witness, the sole government witness at the first trial, had been convicted of larceny, a factor relevant to his credibility and which was unknown at the time of trial. A new trial followed our remand, and the second trial also resulted in conviction. On this appeal only one issue raised by Appellant bears comment. Appellant claims that the District Court Judge abused the discretion vested in him by Luck v. United States, 121 U.S. App.D.C. 151, 348 F.2d 763 (1965), when he permitted the government to impeach Appellant’s testimony by showing prior convictions. However, the record reveals that Appellant did not present the issue to the trial judge in the manner contemplated by Luck, although on the whole record we are satisfied that the trial judge did consider the point and exercise his discretion concerning the prior convictions which Appellant now argues should be excluded; as we have said before, absent plain error we will not find an abuse of discretion where there has been no meaningful invocation of that discretion. See Hood v. United States, 125 U.S.App.D.C. 16, 365 F.2d 949 (1966). Nonetheless, we are moved by the arguments of counsel here as well as by the need for clarification relating to the problem of prior-crimes impeachment, see, e. g., Stevens v. United States, 125 U.S.App.D.C. 239, 370 F.2d 485 (1966) (Fahy, J., dissenting), to set forth some observations about our decision in Luck. Because of the direct conflict in the evidence the verdict necessarily turned on how the jury resolved the credibility contest between the complainant and the defendant. Appellant’s argument now is that while it was appropriate for him to impeach the complaining witness with a prior criminal record, it was improper to allow impeachment of his own credibility by asking" }, { "docid": "2192339", "title": "", "text": "him about his criminal convictions, notwithstanding his failure to raise the issue. The rationale of our Luck opinion is important; it recognized that a showing of prior convictions can have genuine probative value on the issue of credibility, but that because of the potential for prejudice, the receiving of such convictions as impeachment was discretionary. The defendant who has a criminal record may ask the court to weigh the probative value of the convictions as to the credibility against the degree of prejudice which the revelation of his past crimes would cause; and he may ask the court to consider whether it is more important for the jury to hear his story than to know about prior convictions in relation to his credibility. We contemplated the possibility of allowing some convictions to be shown and some excluded; examples are to be found in those which are remote and those which have no direct bearing on veracity, and those which because of the peculiar circumstances at hand might better be excluded. The Luck opinion contemplated an on-the-record consideration by the trial judge whose action would be reviewable only for abuse of discretion, and that once the exercise of discretion appeared, the trial court’s action be “accorded a respect appropriately reflective of the inescapable remoteness of appellate review.” This is a recognition that the cold record on appeal cannot present all facets and elements which the trial judge must weigh in striking the balance. Luck also contemplated that it was for the defendant to present to the trial court sufficient reasons for withholding past convictions from the jury in the face of a statute which makes such convictions admissible. See Hood v. United States, supra. The underlying assumption was that prior convictions would ordinarily be admissible unless this burden is met. “The trial court is not required to allow impeachment by prior conviction every time a defendant takes the stand in his own defense.” The standard to be applied by the District Judge was stated in terms of whether he “believes the prejudicial effect of impeachment far outweighs the probative relevance of" } ]

[ { "docid": "23564646", "title": "", "text": "a timely request in circumstances in which a reasonable attorney would engage such services for a client having the independent financial means to pay for them.” (emphasis added) United States v. Bass, 477 F.2d 723, 725 (9th Cir. 1973). This approach has been followed in several other cases. United States v. Hartfield, 513 F.2d 254, 257 (9th Cir. 1975); Brinkley v. United States, 498 F.2d 505, 509-510 (8th Cir. 1974); see United States v. Durant, 545 F.2d 823, 827 (2d Cir. 1976). The question, therefore, becomes whether a reasonable attorney would have engaged an eyewitness expert in this type of case. The answer is probably not. The admissibility of this type of expert testimony is strongly disfavored by most courts. See United States v. Amaral, 488 F.2d 1148, 1152-1154 (9th Cir. 1973); United States v. Fosher, 590 F.2d 381, 382-384 (1st Cir. 1979). Moreover, this court has held that a defendant has the burden of showing prejudice, by clear and convincing evidence, caused by the court’s failure to appoint an expert. United States v. Washabaugh, 442 F.2d 1127, 1130 (9th Cir. 1971); United States v. Spaulding, 588 F.2d 669 (9th Cir. 1978). Sims has not shown how his cross-examination of the eyewitness was any less effective without the services of the expert. He also has not shown how the expert could have assisted the defense in any other way. Therefore, it does not appear that a “reasonable attorney” would employ an expert in this situation or that Sims suffered any prejudice. 4. Failure to Admit the FBI Report At trial, Sims’ attorney attempted to read a portion of an FBI report into evidence. Romansky, the only other witness to the robbery, had died before the case came to trial. However, prior to his death, Roman-sky had given a description of both robbers to the investigating FBI agent who had included it in his report. According to Sims’ attorney, this description conflicted with the one which was given by the other eyewitness, Endicott. The government objected based on the ground that it was hearsay. Sims’ counsel then responded that the report" } ]

[ { "docid": "12073363", "title": "", "text": "However, cross-examination cannot uncover the reasons for misidentification because the witness honestly does not believe he or she has misidentified the defendant. See Downing, 753 F.2d at 1230 n. 6 (“To the extent that a mistaken witness may retain great confidence in an inaccurate identification, cross-examination can hardly be seen as an effective way to reveal the weaknesses in a witness’ recollection of an event.”). Moreover, a witness is unqualified to testify about the theories surrounding perception, retention, and recall. Only one trained in psychology or science could testify about such theories. Finally, even with such cross-examination, juries are unduly influenced by eyewitness testimony. See Rahaim & Brodsky, Empirical Evidence versus Common Sense: Juror and Lawyer Knowledge of Eyewitness Accuracy, 7 Law & Psychology Rev. 1, 7 (1982). For these reasons, I believe that we cannot uphold exclusion of expert testimony based solely on the reasons set forth in Amaral. The issue then becomes: Should the evidence be excluded on other grounds? III. Although most circuit court decisions have upheld district courts’ exclusion of such evidence, see Downing, 753 F.2d at 1230 n. 4 (collecting cases), the emerging trend in both state and federal courts is to favor admissibility. See id.; Smith, 736 F.2d at 1103; People v. McDonald, 37 Cal.3d 351, 208 Cal.Rptr. 236, 690 P.2d 709 (1984); State v. Chapple, 135 Ariz. 281, 660 P.2d 1208 (1983). Each of these recent decisions has recognized that the eyewitness expert field has developed tremendously since the 1970s. See, e.g., McDonald, 37 Cal.3d at 365, 208 Cal.Rptr. at 245, 690 P.2d at 718 (citing the proliferation of empirical studies and scholarly work since the 1970s). The courts that favor admissibility have found that the field has produced a substantial body of highly sophisticated and generally accepted theoretical explanations for ascertaining and evaluating the reliability of eyewitness testimony. On the other hand, decisions that continue to limit admissibility do so primarily for three reasons. First, some courts have held, as the district court did here, that the testimony is inadmissible because it usurps the jury function. See, e.g., United States v. Brown," }, { "docid": "23483815", "title": "", "text": "explored the admissibility of expert testimony on the reliability of eyewitness identifications most recently in United States v. Smith, 156 F.3d 1046, 1052 (10th Cir.1998). We rejected a per se rule excluding such expert testimony, noting the emerging debate over this type of evidence: “Until fairly recently, most, if not all, courts excluded expert psychological testimony on the validity of eyewitness identification. But, there has been a trend in recent years to allow such testimony under circumstances described as ‘narrow.’ ” Id. at 1052-53 (quoting United States v. Harris, 995 F.2d 532, 534 (4th Cir.1993)). We listed some of the limited conditions under which this expert testimony could be appropriately admitted, emphasizing that the particular facts of a case drive the analysis: “The narrow circumstances held sufficient to support the introduction of expert testimony have varied but have included such problems as cross-racial identification, identification after a long delay, identification after observation under stress, and [such] psychological phenomena as the feedback factor and unconscious transference.” Id. at 1053 (quoting Harris, 995 F.2d at 535). In short, subject to the trial court’s careful supervision, properly conceived expert testimony may be admissible to challenge or support eyewitness evidence. The majority of other circuits also reject per se exclusion of this type of expert testimony. See United States v. Brien, 59 F.3d 274, 277 (1st Cir.1995); United States v. Lumpkin, 192 F.3d 280, 289 (2d Cir.1999); United States v. Stevens, 935 F.2d 1380, 1400-01 (3d Cir.1991); United States v. Harris, 995 F.2d 532, 534-35 (4th Cir.1993); United States v. Moore, 786 F.2d 1308, 1312-13 (5th Cir.1986); United States v. Smith, 736 F.2d 1103, 1107 (6th Cir.1984); United States v. Hall, 165 F.3d 1095, 1106-07 (7th Cir.1999); United States v. Blade, 811 F.2d 461, 465 (8th Cir.1987); United States v. Rincon, 28 F.3d 921, 926 (9th Cir.1994). But see United States v. Smith, 122 F.3d 1355, 1357-59 (11th Cir.1997) (reaffirming earli er precedent creating a per se rule of inadmissibility). The rejection by these courts, as well as our own, of a per se approach to expert testimony on eyewitness identification reflects Daubert’s liberal" }, { "docid": "17530832", "title": "", "text": "eyewitness identification testimony while noting that such a determination must be “based upon an individualized inquiry”); United States v. Moore, 786 F.2d 1308, 1312 (5th Cir.1986) (upholding the district court’s exclusion of eyewitness identification expert testimony while recognizing that admission would be proper in some cases); see also United States v. Downing, 753 F.2d 1224, 1226 (3rd Cir.1985) (reversing ■the district court’s exclusion of expert eyewitness identification testimony while holding that the admission of such testimony is not automatic but conditional); cf. United States v. Brown, 540 F.2d 1048, 1053-54 (10th Cir.1976) (affirming the district court’s exclusion of expert testimony regarding eyewitness identification without discussing possibility of admission under other circumstances). It is clear to us from a review of the record that the district court considered this matter in detail. The court conducted a lengthy Daubert hearing, and it made extensive findings of fact and conclusions of law. The court did not rely on a rule of per se inadmissibility. Indeed, it recognized that the trend is to admit expert testimony on eyewitness identification under certain circumstances, which should be examined on a case-by-case basis. The court found, however, that in the instant case, the proffered testimony touches “on areas of common knowledge.” Rec. vol. VIII at 680. Thus, it concluded that the testimony would not assist the trier of fact. The defendant urges us to adopt the Third Circuit’s approach in United States v. Stevens, 935 F.2d 1380 (3rd Cir.1991). In Stevens, the defendant sought to introduce expert testimony concerning eyewitness identification. Id. at 1384. Both of the eyewitnesses to the crime “proclaimed that they were exceedingly confident in their identifications of [the defendant].” Id. at 1400. The expert would have testified about the lack of correlation between confidence and accuracy in eyewitness identifications. Id. The district court excluded this portion of the expert’s testimony. Id. at 1397. Relying on Downing, the Third Circuit reversed. Id. at 1401. We agree that expert testimony on eyewitness identification may properly be admitted under Daubert in certain circumstances, but Stevens simply does not persuade us that the district court abused its" }, { "docid": "20138542", "title": "", "text": "Telford and Patterson’s eyewitness identification is thus an essential issue in this case, favoring the admission of expert testimony on eyewitness identification. See United States v. Brownlee, 454 F.3d 131, 141 (3d Cir.2006) (remanding for new trial because exclusion of identification expert significantly undermined defendant’s ability to challenge witnesses’ confidence in their identifications in a case turning primarily on accuracy of identifications); United States v. Smithers, 212 F.3d 306, 317 (6th Cir.2000) (“[Ejxpert testimony should be admitted ... when there is no other inculpatory evidence presented against the Defendant with the exception of a small number of eyewitness identifications.”); United States v. Moore, 786 F.2d 1308, 1313 (5th Cir.1986) (“[Ijn a case in which the sole testimony is casual eyewitness identification, expert testimony regarding the accuracy of that identification is admissible and properly may be encouraged.”). Penrod’s proffered testimony, however, appears to be of limited helpfulness because it does not address directly the particular facts of this case. “[E]xpert testimony must be relevant not only in the sense that all evidence must be relevant, but also in the incremental sense that the expert’s proposed opinion, if admitted likely would assist the trier of fact to understand or determine a fact in issue.” Ruiz-Troche v. Pepsi Cola of P.R. Bottling Co., 161 F.3d 77, 81 (1st Cir.1998). Indeed, Rule 702 requires that an expert witness “appl[yj the [scientific] principles and methods reliably to the facts of the case.” Fed.R.Evid. 702. Here, Penrod has never spoken with Telford or Patterson, and thus his testimony consists of generalized notions regarding the flaws of eyewitness testimony. Contra United States v. Hines, 55 F.Supp.2d 62, 73 (D.Mass.1999) (Gertner, J.) (holding expert eyewitness testimony admissible because “the fact that the expert has not interviewed the particular eyewitness makes it less likely that the jury will merely accept the expert testimony and more likely that the testimony will be appropriately cabined” and the “witness can only be providing the jury with tools to analyze the eyewitness; he has no more specific information”). Moreover, the psychological studies which form the basis of Penrod’s testimony do not appear to" }, { "docid": "23173409", "title": "", "text": "616, 641 (5th Cir.1982) (concluding that expert testimony on eyewitness identification is properly excludable because the question of accuracy of perception and memory “can be adequately addressed in cross-examination and that the jury can adequately weigh these problems through common-sense evaluation”). Furthermore, we believe that the credibility of eyewitness testimony is generally not an appropriate subject matter for expert testimony because it influences a critical function of the jury — determining the credibility of witnesses. See, e.g., United States v. Kime, 99 F.3d at 884 (concluding that the “evaluation of eyewitness testimony is for the jury alone. It is the exclusive province of the jury to determine the believability of a witness_An expert is not permitted to offer an opinion as to the believability or truthfulness” of a witness’s story) (citation and internal quotations omitted). Second, the district court properly gave the jury an instruction on the reliability of eyewitness identification to aid the jury in evaluating the eyewitness identification testimony introduced at trial. See United States v. Anderson, 739 F.2d 1254, 1258 (7th Cir.1984) (finding that “[i]n cases where witness identification is an issue, the trial judge must, at the defendant’s request, instruct the jury about eyewitness identification testimony”). Specifically, the district court cautioned the jury to consider: (1) the opportunity the witness had to observe the offender at the time in question and later to make - a rehable identification; (2) the influencés and circumstances under which the witness has made the identification; (3) the credibility of each identification witness; (4) whether the witness is truthful; and (5) whether the witness had the capacity and opportunity to make a reliable observation on the matter covered in the witness’s testimony. These instructions adequately focused “the jury’s attention on the reliability' of the witness identifications and ... acquainted[ed] the jury with factors relevant in evaluating those identifications.” Id. at 1258; see also Rincon, 28 F.3d at 925-26 (suggesting that the use of cautionary instructions which address many of the factors about which an expert would testify is an alternative way of educating jurors of the problems arising from eyewitness identifications)." }, { "docid": "12073350", "title": "", "text": "the probative value of the lay opinion testimony against its potential for prejudice. Rule 403 of the Federal Rules of Evidence provides that “[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice ...” Fed.R. Evid. 403. We conclude that, given the familiarity both Lankford and Wood had with Langford, their testimony was sufficiently probative to outweigh the danger of unfair prejudice. The district court thus did not abuse its discretion in this respect. Upon Langford’s ex parte application, the trial court appointed an expert in the field of eyewitness identification to assist in preparation of Langford’s defense. Such an appointment requires a finding that the services of the expert “are neces- ' sary for an adequate defense.” 18 U.S.C. § 3006A(e)(l). Nevertheless, at trial the court excluded the expert’s testimony concerning the unreliability of eyewitness identification: I rather think in all of these situations it is a balancing question. The ruling of the court (excluding the proffered testimony) is in no way predicated upon the absence of qualifications of the witness who has been identified in his professional field of psychology. The ruling, including the use of his testimony as an expert, is that it goes beyond the field of expertise to which such testimony should be directed or can be directed, and is basically argumentative and intrusive upon the jury’s responsibility as triers of the facts of the case. Even if the admission of expert testimony concerning eyewitness identification is proper under certain circumstances, “there is no federal authority for the proposition that such testimony must be admitted.” United States v. Moore, 786 F.2d 1308, 1312-13 (5th Cir.1986). We have repeatedly upheld the exclusion of such testimony. See United States v. Brewer, 783 F.2d 841, 842 (9th Cir.1986); United States v. Amaral, 488 F.2d 1148, 1153 (9th Cir.1973). It was within the broad discretion of the trial court to conclude that, on balance, the jury would not benefit from admission of the proffered evidence. See United States v. Solomon, 753 F.2d 1522, 1525 (9th Cir. 1985) (quoting United States" }, { "docid": "13462182", "title": "", "text": "other general features to the robber’s; and (4) their memories could have been distorted over time. Federal Rule of Evidence 702 sets the standard for the admissibility of expert testimony. It provides that [i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. Fed.R.Evid. 702. As Rule 702 indicates, expert testimony is only permitted if it assists the trier of fact to understand evidence or to determine a fact in issue. Persinger v. Norfolk & W. Ry., 920 F.2d 1185, 1188 (4th Cir.1990). The exclusion of expert testimony under Rule 702 is within the sound discretion of the trial judge. Sparks v. Gilley Trucking Co., 992 F.2d 50, 53 n. 3 (4th Cir.1993). Exercising its discretion, the court should consider whether the testimony is within the common knowledge of the jurors. See Persinger, 920 F.2d at 1188. This type of evidence, almost by definition, can be of no assistance to a jury. Scott v. Sears, Roebuck & Co., 789 F.2d 1052, 1055 (4th Cir.1986). Until fairly recently, most, if not all, courts excluded expert psychological testimony on the validity of eyewitness identification. See, e.g., United States v. Thevis, 665 F.2d 616, 641 (5th Cir.), cert. denied, 456 U.S. 1008, 102 S.Ct. 2300, 73 L.Ed.2d 1303 (1982); United States v. Amaral, 488 F.2d 1148, 1152-53 (9th Cir.1973). But, there has been a trend in recent years to allow such testimony under circumstances described as “narrow.” See United States v. Downing, 753 F.2d 1224, 1231 (3d Cir.1985) (citing People v. McDonald, 37 Cal.3d 351, 208 Cal.Rptr. 236, 690 P.2d 709 (1984)). Most courts allowing such expert testimony, however, recognize that the ultimate determination of admissibility, as with most Rule 702 evaluations, rests within the sound discretion of the trial court. See United States v. Stevens, 935 F.2d 1380, 1400-01 (3d Cir. 1991); State v. Chapple, 135 Ariz. 281, 296, 660 P.2d 1208, 1223 (1983)" }, { "docid": "20138541", "title": "", "text": "of different races; Patterson was subjected to an unusual amount of stress during the buy as a result of the potential danger posed by the unidentified vehicle; and the identification procedure was highly suggestive. While recognizing that the government’s case rests primarily on eyewitness identifications and that the proposed testimony may reflect information outside the common understanding of laypersons, the Court excluded Dr. Pen-rod’s testimony because it did not bear directly on the facts of this case and the same information was conveyed to the jury through instruction. The Court will explain its reasoning using the factors outlined in Brien. As mentioned above, it is largely undisputed that the government’s case relies primarily on the eyewitness testimony of Patterson and Telford. The evidence against Jones consisted of a blurry video where the suspect’s face is not clearly visible, Telford’s identification of Jones from the same video, and Patterson’s identification of Jones from a single photograph 24 hours after an initial encounter with the suspect. Moreover, the cornerstone of Jones’s defense is misidentifieation. The accuracy of Telford and Patterson’s eyewitness identification is thus an essential issue in this case, favoring the admission of expert testimony on eyewitness identification. See United States v. Brownlee, 454 F.3d 131, 141 (3d Cir.2006) (remanding for new trial because exclusion of identification expert significantly undermined defendant’s ability to challenge witnesses’ confidence in their identifications in a case turning primarily on accuracy of identifications); United States v. Smithers, 212 F.3d 306, 317 (6th Cir.2000) (“[Ejxpert testimony should be admitted ... when there is no other inculpatory evidence presented against the Defendant with the exception of a small number of eyewitness identifications.”); United States v. Moore, 786 F.2d 1308, 1313 (5th Cir.1986) (“[Ijn a case in which the sole testimony is casual eyewitness identification, expert testimony regarding the accuracy of that identification is admissible and properly may be encouraged.”). Penrod’s proffered testimony, however, appears to be of limited helpfulness because it does not address directly the particular facts of this case. “[E]xpert testimony must be relevant not only in the sense that all evidence must be relevant, but" }, { "docid": "12073361", "title": "", "text": "prejudicial, it prevents the eyewitness testimony from having an overly prejudicial effect. Courts and scholars have long recognized the untrustworthiness of eyewitness testimony. E.g., Watkins v. Sowders, 449 U.S. 341, 350, 101 S.Ct. 654, 659-60, 66 L.Ed.2d 549 (1981) (Brennan, J., dissenting) (“eyewitness identification evidence is notoriously unreliable”); United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 1933, 18 L.Ed.2d 1149 (1967) (“The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.”); Jackson v. Fogg, 589 F.2d 108, 112 (2d Cir.1978) (“Centuries of experience in the administration of criminal justice have shown that convictions based solely on testimony that identifies a defendant previously unknown to the witness [are] highly suspect.”); E. Borchard, Convicting the Innocent: Errors of Criminal Justice (3d ed. 1970). The problem is compounded because juries almost unquestioningly accept eyewitness testimony. See, e.g., Watkins, 449 U.S. at 352, 101 S.Ct. at 660-61 (Brennan, J., dissenting) (“[D]espite its inherent unreliability, much eyewitness identification evidence has a powerful impact on juries.”); E. Loftus, Eyewitness Testimony 9 (1979) (eyewitness identification is “overwhelmingly influential”); P. Wall, Eye-Witness Identification in Criminal Cases 19 (1965) (“[J]uries are unduly receptive to identification evidence and are not sufficiently aware of its dangers.”). Expert testimony on this issue is important because it reveals the reasons why a witness may truthfully, but mistakenly, believe that the defendant was the culprit. See United States v. Moore, 786 F.2d 1308, 1312 (5th Cir.1986); I. Horowitz & T. Willing, The Psychology of Law: Integrations and Applications 238-41 (1984). We can no longer believe that jurors come to the courtroom already equipped with such knowledge. See United States v. Downing, 753 F.2d 1224, 1230-31 (3d Cir.1985) (factors regarding reliability are “beyond what an average juror might know as a matter of common knowledge and indeed some of them directly contradict ‘common sense’ ”); United States v. Smith, 736 F.2d 1103, 1106 (6th Cir.), cert. denied, 469 U.S. 868,105 S.Ct. 213, 83 L.Ed.2d 143 (1984). The key to the Amaral holding is that panel’s conclusion this information may be obtained by cross-examination." }, { "docid": "1779204", "title": "", "text": "may be encouraged ... ”); United States v. Downing, 753 F.2d 1224, 1232 (3d Cir.1985) (reasoning that “expert testimony on eyewitness perception and memory [should] be admitted at least in some circumstances”); United States v. Smith, 736 F.2d 1103, 1107 (6th Cir.1984) (“The day may have arrived, therefore, when Dr. Fulero’s testimony can be said to conform to a generally accepted explanatory theory.”). State court decisions also reflect this trend. See, e.g., State v. Buell, 22 Ohio St.3d 124, 489 N.E.2d 795 (1986) (overruling per se rule and holding expert testimony admissible to inform jury about factors generally affecting memory process). Indeed, several courts have held that it is an abuse of discretion to exclude such expert testimony. See, e.g., United States v. Stevens, 935 F.2d 1380, 1400-01 (3d Cir.1991) (reversing and remanding for new trial); Smith, 736 F.2d at 1107 (holding error harmless in light of other inculpatory evidence); Downing, 753 F.2d at 1232 (holding error harmless in light of other inculpatory evidence); State v. Chapple, 135 Ariz. 281, 660 P.2d 1208 (1983) (reversing and remanding for new trial). This jurisprudential trend is not surprising in light of modern scientific studies which show that, while juries rely heavily on eyewitness tes- timon'y, it can be untrustworthy under certain circumstances. Recognizing the dichotomy between eyewitness errors and jurors’ reliance on eyewitness testimony, this Circuit has held that expert testimony on the subject of eyewitness identification is admissible. In United States v. Smith, 736 F.2d 1103 (6th Cir.1984), this Court held that a trial court abused its discretion in excluding such an expert. In Smith, the defendant sought to introduce the testimony of psychologist Solomon Fulero — the same expert Smith-ers attempted to introduce at his trial — as an expert in the field of eyewitness identification to shed light upon an eyewitness’s testimony. The lower court excluded the testimony, finding that it was inadmissible pursuant to Federal Rule of Evidence 403. On appeal, this Court applied the four prong test for expert testimony articulated in United States v. Green, 548 F.2d 1261 (6th Cir.1977): (1) that the witness, a qualified" }, { "docid": "13462183", "title": "", "text": "This type of evidence, almost by definition, can be of no assistance to a jury. Scott v. Sears, Roebuck & Co., 789 F.2d 1052, 1055 (4th Cir.1986). Until fairly recently, most, if not all, courts excluded expert psychological testimony on the validity of eyewitness identification. See, e.g., United States v. Thevis, 665 F.2d 616, 641 (5th Cir.), cert. denied, 456 U.S. 1008, 102 S.Ct. 2300, 73 L.Ed.2d 1303 (1982); United States v. Amaral, 488 F.2d 1148, 1152-53 (9th Cir.1973). But, there has been a trend in recent years to allow such testimony under circumstances described as “narrow.” See United States v. Downing, 753 F.2d 1224, 1231 (3d Cir.1985) (citing People v. McDonald, 37 Cal.3d 351, 208 Cal.Rptr. 236, 690 P.2d 709 (1984)). Most courts allowing such expert testimony, however, recognize that the ultimate determination of admissibility, as with most Rule 702 evaluations, rests within the sound discretion of the trial court. See United States v. Stevens, 935 F.2d 1380, 1400-01 (3d Cir. 1991); State v. Chapple, 135 Ariz. 281, 296, 660 P.2d 1208, 1223 (1983) (en banc); People v. McDonald, 37 Cal.3d 361, 208 Cal.Rptr. 236, 690 P.2d 709, 724-25 (Cal. 1984). But see United States v. Holloway, 971 F.2d 675, 679 (11th Cir.1992) (declaring expert testimony on eyewitness identification per se inadmissible), cert. denied, — U.S. -, 113 S.Ct. 1390, 122 L.Ed.2d 764 (1993). The narrow circumstances held sufficient to support the introduction of expert testimony have varied but have included such problems as cross-racial identification, identification after a long delay, identification after observation under stress, and psychological phenomena as the feedback factor and unconscious transference. See Stevens, 935 F.2d at 1400 (admitting testimony on the lack of correlation between confidence and accuracy in eyewitness identification); United States v. Sebetich, 776 F.2d 412, 418-19 (3rd Cir.1985) (holding erroneous the exclusion of expert testimony where the identification came nineteen months after the robbery, it was made under 'stressful circumstances, and it was only derived from one person’s testimony), cert. denied, 484 U.S. 1017, 108 S.Ct. 725, 98 L.Ed.2d 673 (1988); United States v. Smith, 736 F.2d 1103, 1106 (6th Cir.)" }, { "docid": "16791607", "title": "", "text": "States v. Fosher, 590 F.2d 381, 383 (1st Cir.1979)). After allowing defense counsel to make an elaborate offer of proof as to the nature of Dr. Timm’s testimony, the district court opined that any deficiencies in the police officers’ identification of Blade as the driver of the car could be more suitably addressed during cross-examination in which defense counsel could bring out the relevant circumstances, such as the amount of time to observe and the available lighting, that might effect the witness’ ability to make an accurate identification. The court also considered the abstract, general nature of Dr. Timm’s proffered testimony, that Dr. Timm had not had any contact with the witnesses or with Blade, and that his only knowledge of the events came from reading the police report and from discussing the case with defense counsel. The court ultimately concluded that the probative value of Dr. Timm’s expert testimony was substantially outweighed by the danger that the jury would attach too much weight to it because of its aura of special reliability. See Fed.R.Evid. 403. The exclusion of expert testimony is a matter within the sound judicial discretion of the trial judge, and we will reverse only if his decision was manifestly erroneous. United States v. Oliver, 525 F.2d 731, 737 (8th Cir.1975), cert. denied, 424 U.S. 973, 96 S.Ct. 1477, 47 L.Ed.2d 743 (1976). To support his contention that the district court erred in exercising its discretion, Blade points to several recent cases where other appellate courts have discussed in detail the reasons for admitting expert eyewitness identification testimony under Fed.R.Evid. 702. See United States v. Moore, 786 F.2d 1308, 1312 (5th Cir. 1986); United States v. Sebetich, 776 F.2d 412, 419 (3d Cir.1985); United States v. Downing, 753 F.2d 1224, 1229-32 (3d Cir. 1985); United States v. Smith, 736 F.2d 1103, 1107 (6th Cir.), cert. denied, 469 U.S. 868, 105 S.Ct. 213, 83 L.Ed.2d 143 (1984). These courts noted the dangers of misidentification in criminal cases, the increasing acceptance of eyewitness identification evidence in the scientific community in recent years, and its possible helpfulness to a jury" }, { "docid": "22399926", "title": "", "text": "expert evidence, and its action will be sustained unless manifestly erroneous); Knight v. Otis Elevator Company, 596 F.2d 84, 87 (3d Cir.1979) (noting the liberal policy of admitting expert testimony which will “probably aid” the trier of fact). Notwithstanding the fact that the Rule 702 standard usually favors admissibility, see In re Japanese Electronic Products Antitrust Litigation, 723 F.2d 238, 279 (3d Cir.1983), several courts of appeals have upheld the exclusion of expert testimony on eyewitness perception and memory because the testimony would involve questions that “can be adequately addressed in cross examination and that the jury can adequately weigh ... through common-sense evaluation.” United States v. Thevis, 665 F.2d 616, 641 (5th Cir.1982). See also United States v. Fosher, 590 F.2d 381, 383 (1st Cir.1979) (offer of testimony focusing on general problems of eyewitness identifica tion was not “sufficiently beyond the ken of lay jurors to satisfy Rule 702”); United States v. Brown, 540 F.2d 1048, 1054 (10th Cir.1976) (testimony properly refused because it “usurps the functions of the jury,” and because the offer of proof was inadequate); United States v. Amaral, 488 F.2d 1148,1153 (9th Cir.1973) (cross-examination will be adequate to reveal any frailties in eyewitness identifications). We have serious doubts about whether the conclusion reached by these courts is consistent with the liberal standard of admissibility mandated by Rule 702. Instead, we find persuasive more recent cases in which courts have found that, under certain circumstances, this type of expert testimony can satisfy the helpfulness test of Rule 702. For example, in State v. Chappie, 135 Ariz. 281, 660 P.2d 1208 (1983) (applying Arizona’s version of the Federal Rules of Evidence), the Supreme Court of Arizona set aside a jury’s guilty verdict and ordered a new trial on the ground that the trial court had erroneously excluded an expert on eyewitness identification offered by the defendant. In addressing the question whether the expert’s testimony would have been “helpful” to the jury in reaching an informed decision, the court noted several specific factual “variables” that were present in that case which, the defendant’s expert was prepared to testify," }, { "docid": "1779203", "title": "", "text": "eyewitness identification because cross-examination was sufficient to reveal any weaknesses in the identifications. After that decision, a series of cases rejected similar evidence for a variety of reasons. See, e.g., United States v. Purham, 725 F.2d 450, 454 (8th Cir.1984) (finding the question is within the expertise of jurors); United States v. Thevis, 665 F.2d 616, 641 (5th Cir.1982) (reasoning that identification was adequately addressed through cross-examination); United States v. Sims, 617 F.2d 1371, 1375 (9th Cir.1980) (finding no general acceptance in scientific community); United States v. Posher, 590 F.2d 381, 383 (1st Cir.1979) (ruling that the testimony would be prejudicial). This trend shifted with a series of decisions in the 1980’s, with the emerging view that expert testimony may be offered, in certain circumstances, on the subject of the psychological factors which influence the memory process. See, e.g., United States v. Moore, 786 F.2d 1308, 1313 (5th Cir.1986) (finding that “[i]n a case in which the sole testimony is casual eyewitness identification, expert testimony regarding the accuracy of that identification is admissible and properly may be encouraged ... ”); United States v. Downing, 753 F.2d 1224, 1232 (3d Cir.1985) (reasoning that “expert testimony on eyewitness perception and memory [should] be admitted at least in some circumstances”); United States v. Smith, 736 F.2d 1103, 1107 (6th Cir.1984) (“The day may have arrived, therefore, when Dr. Fulero’s testimony can be said to conform to a generally accepted explanatory theory.”). State court decisions also reflect this trend. See, e.g., State v. Buell, 22 Ohio St.3d 124, 489 N.E.2d 795 (1986) (overruling per se rule and holding expert testimony admissible to inform jury about factors generally affecting memory process). Indeed, several courts have held that it is an abuse of discretion to exclude such expert testimony. See, e.g., United States v. Stevens, 935 F.2d 1380, 1400-01 (3d Cir.1991) (reversing and remanding for new trial); Smith, 736 F.2d at 1107 (holding error harmless in light of other inculpatory evidence); Downing, 753 F.2d at 1232 (holding error harmless in light of other inculpatory evidence); State v. Chapple, 135 Ariz. 281, 660 P.2d 1208 (1983) (reversing" }, { "docid": "1779202", "title": "", "text": "been helpful to the jury in evaluating this issue. Smithers, therefore, contends that the decision to exclude this expert’s testimony, to indulge the district judge in his rather eccentric courtroom experiment, was improper. The government counters that the district court’s decision was well within its discretion. The district court properly excluded Dr. Fulero’s testimony, the prosecution argues, based upon its lack of scientific validity, invasion of the jury’s province, possibility of confusion and the tardiness of Smithers’s proffer. Courts’ treatments of expert testimony regarding eyewitness identification has experienced a dramatic transformation in the past twenty years and is still in a state of flux. Beginning in the early 1970’s, defense attorneys began to bring expert testimony into the courtroom. Then, courts were uniformly skeptical about admitting such testimony, elaborating a host of reasons why eyewitness experts should not be allowed to testify. In the first case to address the issue, United States v. Amaral, 488 F.2d 1148 (9th Cir.1973), the Ninth Circuit held that the district court did not err in excluding expert testimony regarding eyewitness identification because cross-examination was sufficient to reveal any weaknesses in the identifications. After that decision, a series of cases rejected similar evidence for a variety of reasons. See, e.g., United States v. Purham, 725 F.2d 450, 454 (8th Cir.1984) (finding the question is within the expertise of jurors); United States v. Thevis, 665 F.2d 616, 641 (5th Cir.1982) (reasoning that identification was adequately addressed through cross-examination); United States v. Sims, 617 F.2d 1371, 1375 (9th Cir.1980) (finding no general acceptance in scientific community); United States v. Posher, 590 F.2d 381, 383 (1st Cir.1979) (ruling that the testimony would be prejudicial). This trend shifted with a series of decisions in the 1980’s, with the emerging view that expert testimony may be offered, in certain circumstances, on the subject of the psychological factors which influence the memory process. See, e.g., United States v. Moore, 786 F.2d 1308, 1313 (5th Cir.1986) (finding that “[i]n a case in which the sole testimony is casual eyewitness identification, expert testimony regarding the accuracy of that identification is admissible and properly" }, { "docid": "12073362", "title": "", "text": "Testimony 9 (1979) (eyewitness identification is “overwhelmingly influential”); P. Wall, Eye-Witness Identification in Criminal Cases 19 (1965) (“[J]uries are unduly receptive to identification evidence and are not sufficiently aware of its dangers.”). Expert testimony on this issue is important because it reveals the reasons why a witness may truthfully, but mistakenly, believe that the defendant was the culprit. See United States v. Moore, 786 F.2d 1308, 1312 (5th Cir.1986); I. Horowitz & T. Willing, The Psychology of Law: Integrations and Applications 238-41 (1984). We can no longer believe that jurors come to the courtroom already equipped with such knowledge. See United States v. Downing, 753 F.2d 1224, 1230-31 (3d Cir.1985) (factors regarding reliability are “beyond what an average juror might know as a matter of common knowledge and indeed some of them directly contradict ‘common sense’ ”); United States v. Smith, 736 F.2d 1103, 1106 (6th Cir.), cert. denied, 469 U.S. 868,105 S.Ct. 213, 83 L.Ed.2d 143 (1984). The key to the Amaral holding is that panel’s conclusion this information may be obtained by cross-examination. However, cross-examination cannot uncover the reasons for misidentification because the witness honestly does not believe he or she has misidentified the defendant. See Downing, 753 F.2d at 1230 n. 6 (“To the extent that a mistaken witness may retain great confidence in an inaccurate identification, cross-examination can hardly be seen as an effective way to reveal the weaknesses in a witness’ recollection of an event.”). Moreover, a witness is unqualified to testify about the theories surrounding perception, retention, and recall. Only one trained in psychology or science could testify about such theories. Finally, even with such cross-examination, juries are unduly influenced by eyewitness testimony. See Rahaim & Brodsky, Empirical Evidence versus Common Sense: Juror and Lawyer Knowledge of Eyewitness Accuracy, 7 Law & Psychology Rev. 1, 7 (1982). For these reasons, I believe that we cannot uphold exclusion of expert testimony based solely on the reasons set forth in Amaral. The issue then becomes: Should the evidence be excluded on other grounds? III. Although most circuit court decisions have upheld district courts’ exclusion of such" }, { "docid": "12080851", "title": "", "text": "the jury as eyewitness identification was not a central issue in the case. For a discussion of the various circuit positions, see United States v. Hudson, 884 F.2d 1016 (7th Cir.1989) (excluding), cert. denied, 496 U.S. 939, 110 S.Ct. 3221, 110 L.Ed.2d 668 (1990) and United States v. Moore, 786 F.2d 1308 (5th Cir.1986) (admitting), reh’g denied, 791 F.2d 928 (5th Cir. 1986) (en banc). In our view, the modern trend is to admit expert testimony on the impact psychological factors such as stress, suggestibility, feedback, and confidence have on the reliability of an eyewitness identification when the identification is a critical issue in the case. Moreover, in military trials, judges should “view liberally the question of whether the expert’s testimony may assist the trier of fact.” United States v. Combs, 35 M.J. 820, 826 (A.F.C.M.R.1992) (citations omitted). And, “[i]f anything, in marginal cases, due process might make the road a tad wider on the defense’s side than on the Government’s.” Gipson 24 M.J. at 252; see Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). We do not find the defense proffered expert psychological testimony on the unreli ability of the eyewitness identifications in this case any more, or less, mystical than already sanctioned Government expert testimony on rape trauma syndrome, e.g., United States v. Carter, 26 M.J. 428 (C.M.A.1988), and child abuse accommodation syndrome, e.g., United States v. Suarez, 35 M.J. 374 (C.M.A.1992). We find that each of the areas Dr. Wills proposed to testify about, particularly the impact of stress on accuracy and the relationship between a witness’ confidence in an identification and its accuracy, went beyond what an average court member might know as a matter of common knowledge. Some of his principles were counter-intuitive and flew in the face of common beliefs. See United States v. Downing, 753 F.2d 1224, 1230-1232 (3d Cir.1985) (quoted in Daubert, — U.S. -, 113 S.Ct. at 2797; and Gipson, 24 M.J. at 251); Moore, 786 F.2d at 1312-13; United States v. Smith, 736 F.2d 1103, 1106 (6th Cir.1984) (observation in first lineup may “unconsciously transfer”" }, { "docid": "23173408", "title": "", "text": "(9th Cir.1994) (same). Thus, we believe that our position is consistent with these eases because most courts allowing such expert eyewitness testimony recognize that the determination of admissibility rests within the sound discretion of the district court. C. Additional Considerations Our conclusion that the district court did not abuse its discretion in this case is further supported by three additional considerations. First, Hall had the opportunity to thoroughly cross-examine all of the eyewitnesses in order to cast doubt on their ability to identify him. As we have explained, any weaknesses in eyewitness identification testimony ordinarily can be exposed through careful cross-examination of the eyewitnesses. See Larkin, 978 F.2d at 971 (excluding proffered expert testimony, in part, because defendant’s counsel had the opportunity at trial to discuss the potential hazards of eyewitness identification and cast doubt upon the witnesses’ eyewitness identifications); Curry, 977 F.2d at 1052 (concluding that “vigorous cross-examination by the defendants,” which revealed the weaknesses of the eyewitness identifications, made expert testimony on the identifications unnecessary); see also United States v. Thevis, 665 F.2d 616, 641 (5th Cir.1982) (concluding that expert testimony on eyewitness identification is properly excludable because the question of accuracy of perception and memory “can be adequately addressed in cross-examination and that the jury can adequately weigh these problems through common-sense evaluation”). Furthermore, we believe that the credibility of eyewitness testimony is generally not an appropriate subject matter for expert testimony because it influences a critical function of the jury — determining the credibility of witnesses. See, e.g., United States v. Kime, 99 F.3d at 884 (concluding that the “evaluation of eyewitness testimony is for the jury alone. It is the exclusive province of the jury to determine the believability of a witness_An expert is not permitted to offer an opinion as to the believability or truthfulness” of a witness’s story) (citation and internal quotations omitted). Second, the district court properly gave the jury an instruction on the reliability of eyewitness identification to aid the jury in evaluating the eyewitness identification testimony introduced at trial. See United States v. Anderson, 739 F.2d 1254, 1258 (7th Cir.1984)" }, { "docid": "1779201", "title": "", "text": "Smithers weighed 245 pounds in November of 1996, is 6’ 8” tall and has a four-inch long scar on the right front side of his neck. The case was submitted to the jury on January 21, 1998. The next day, the jury returned a verdict of guilty. The district court sentenced Smithers on June 4, 1998, to a forty-one month term of imprisonment. Smithers timely filed a notice of appeal on June 8, 1998. Smithers now appeals various aspects of his trial, only one of which we address today: the exclusion of Dr. Fulero as an eyewitness expert. II. Generally, a trial court’s evidentiary determinations are reviewed for an abuse of discretion. See United States v. Moore, 954 F.2d 379, 381 (6th Cir.1992). Smithers argues that the district court’s denial of his motion to introduce testimony by an identification expert warrants the reversal of his conviction. The crucial element of the government’s case was eyewitness identification of the defendant and his car, Smithers argues, and Dr. Fulero’s testimony involved a proper subject that would have been helpful to the jury in evaluating this issue. Smithers, therefore, contends that the decision to exclude this expert’s testimony, to indulge the district judge in his rather eccentric courtroom experiment, was improper. The government counters that the district court’s decision was well within its discretion. The district court properly excluded Dr. Fulero’s testimony, the prosecution argues, based upon its lack of scientific validity, invasion of the jury’s province, possibility of confusion and the tardiness of Smithers’s proffer. Courts’ treatments of expert testimony regarding eyewitness identification has experienced a dramatic transformation in the past twenty years and is still in a state of flux. Beginning in the early 1970’s, defense attorneys began to bring expert testimony into the courtroom. Then, courts were uniformly skeptical about admitting such testimony, elaborating a host of reasons why eyewitness experts should not be allowed to testify. In the first case to address the issue, United States v. Amaral, 488 F.2d 1148 (9th Cir.1973), the Ninth Circuit held that the district court did not err in excluding expert testimony regarding" }, { "docid": "16791608", "title": "", "text": "403. The exclusion of expert testimony is a matter within the sound judicial discretion of the trial judge, and we will reverse only if his decision was manifestly erroneous. United States v. Oliver, 525 F.2d 731, 737 (8th Cir.1975), cert. denied, 424 U.S. 973, 96 S.Ct. 1477, 47 L.Ed.2d 743 (1976). To support his contention that the district court erred in exercising its discretion, Blade points to several recent cases where other appellate courts have discussed in detail the reasons for admitting expert eyewitness identification testimony under Fed.R.Evid. 702. See United States v. Moore, 786 F.2d 1308, 1312 (5th Cir. 1986); United States v. Sebetich, 776 F.2d 412, 419 (3d Cir.1985); United States v. Downing, 753 F.2d 1224, 1229-32 (3d Cir. 1985); United States v. Smith, 736 F.2d 1103, 1107 (6th Cir.), cert. denied, 469 U.S. 868, 105 S.Ct. 213, 83 L.Ed.2d 143 (1984). These courts noted the dangers of misidentification in criminal cases, the increasing acceptance of eyewitness identification evidence in the scientific community in recent years, and its possible helpfulness to a jury in explaining counter-intuitive factors that may not be fully developed through cross-examination. The crux of these decisions, however, is simply that such expert testimony comes within the scope of Fed.R. Evid. 702, and, thus, should not be excluded automatically. Nonetheless, each court invariably held that the district court has broad discretion in, first, determining the reliability of the particular testimony and, second, balancing its probative value against its prejudicial effect. As we have already observed, the district court did not automatically exclude Dr. Timm’s testimony. Defense counsel fully explained the nature and purpose of the testimony to the trial court, and the record shows that the court carefully considered those reasons before excluding the testimony. In addition, we would be especially hesitant to find an abuse of discretion unless the government’s case against the defendant rested exclusively on uncorroborated eyewitness testimony. Cf. Moore, 786 F.2d at 1313; Sebetich, 776 F.2d at 419; Downing, 753 F.2d at 1243. Here, there was other evidence linking Blade to the scene of the incident. Blade’s identification was found not" } ]

[ { "docid": "22605229", "title": "", "text": "Albemarle Paper Co. v. Moody, 422 U. S. 405, 414 n. 8 (1975); NLRB v. Gullett Gin Co., 340 U. S. 361, 366 (1951); National Lead Co. v. United States, 252 U. S. 140, 147 (1920); 2A C. Sands, Sutherland on Statutory Construction § 49.09 and cases cited (4th ed. 1973). So too, where, as here, Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute. That presumption is particularly appropriate here since, in enacting the ADEA, Congress exhibited both a detailed knowledge of the FLSA provisions and their judicial interpretation and a willingness to depart from those provisions regarded as undesirable or inappropriate for incorporation. For example, in construing the enforcement sections of the FLSA, the courts had consistently declared that injunctive relief was not available in suits by private individuals but only in suits by the Secretary. Powell v. Washington Post Co., 105 U. S. App. D. C. 374, 267 F. 2d 651 (1959); Roberg v. Henry Phipps Estate, 156 F. 2d 958, 963 (CA2 1946); Bowe v. Judson C. Burns, Inc., 137 F. 2d 37 (CA3 1943). Congress made plain its decision to follow a different course in the ADEA by expressly permitting “such . . . equitable relief as may be appropriate to effectuate the purposes of [the ADEA] including without limitation judgments compelling employment, reinstatement or promotion” “in any action brought to enforce” the Act. §7 (b), 29 U. S. C. § 626 (b) (emphasis added). Similarly, while incorporating into the ADEA the FLSA provisions authorizing awards of liquidated damages, Congress altered the circumstances under which such awards would be available in ADEA actions by mandating that such damages be awarded only where the violation of the ADEA is willful. Finally, Congress expressly declined to incorporate into the ADEA the criminal penalties established for violations of the FLSA. This selectivity that Congress exhibited in incorporating provisions and in modifying certain FLSA practices strongly suggests that but for those" } ]

[ { "docid": "22821893", "title": "", "text": "in the ADEA parallels Title VII the two statutes are to be construed consistently. . The ADEA provides that “liquidated damages shall be payable only in cases of willful violations of this chapter.” 29 U.S.C. § 626(b). See id. § 216(b) (defining liquidated damages). Within this circuit the above constraint has been construed as permissive. Hence if, after a jury finding of willfulness, the trial court makes a finding that the employer acted in good faith and had reasonable grounds for believing that its actions were not violative of the ADEA, the trial court possesses the discretion to determine the amount, if any, of a liquidated damages award. See Hendrick v. Hercules, Inc., 658 F.2d 1088 (5th Cir.1981); Hays v. Republic Steel Corp., 531 F.2d 1307 (5th Cir.1976). The trial court here, despite the jury’s specific finding of willfullness, declined to award liquidated damages. Appellees contend that our permissive approach to liquidated damages runs counter to both the policy and underlying legislative history of the ADEA and urges that we join those circuits that have held that upon a finding of willfullness, liquidated damages in the amount of actual damages must be awarded. See Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir.1979); Goodman v. Heublein, Inc., 645 F.2d 127 (2d Cir.1981); Wehr v. Burroughs, Inc., 619 F.2d 276 (3d Cir.1980); Syrock v. Milwaukee Boiler Mfg. Co., 27 F.E.P. 610 (7th Cir.1981); Kelly v. American Standard, Inc., 640 F.2d 974 (9th Cir.1981). In the alternative, appellees argue that because of the specific finding that Hospital Service willfully violated the ADEA and because the district court declined to award liquidated damages without making factual findings of good faith, on the record, we must remand for such a determination. Hendrick, supra, is cited as support for this legal theory. In light of the ultimate disposition of the present case we must decline appellees’ offering. Accordingly, we express no view as to whether Hendrick requires a trial court to enter its factual findings on the record in order to support its discretion in this area. Nor do we believe the present facts warrant" }, { "docid": "10789763", "title": "", "text": "55 L.Ed.2d 40 (1978), the Supreme Court pointedly observed that the ADEA selectively adopts only some of the procedural changes that the PPA made applicable to the FLSA. Id. at 581-82 n.8. As the Court noted, the ADEA, in § 7(e), 29 U.S.C. § 626(e) (1976), specifically incorporates §§ 6 and 10 of the PPA, 29 U.S.C. §§ 255 and 259 (1976) (concerning statute of limitations and reliance on agency rulings), but not § 11, 29 U.S.C. § 260 (1976), the liquidated damages provision. Moreover, in enacting the ADEA, Congress departed from the FLSA procedure by adopting “willfulness” as an element of liability for liquidated damages, and by committing the issue of the employer’s, state of mind to the trier of fact. We reject Heublein’s contention, agreeing with the three Circuits that have considered the same claim after the Supreme Court’s opinion in Lorillard. Kelly v. American Standard, Inc., 640 F.2d 974 (9th Cir. 1981); Wehr v. Burroughs Corp., 619 F.2d 276 (3d Cir. 1980); Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979). But see Hays v. Republic Steel Corp., 531 F.2d 1307 (5th Cir. 1976) (pre-Lorillard); Bertrand v. Orkin Exterminating Co., 454 F.Supp. 78 (N.D.Ill.1978) (post-Lorillard); Johnson v. Hidalgo, 23 E.P.D. ¶ 31, 125 (D.D.C. July 25, 1980) (semble). Heublein contends ’ that the instructions to the jury were erroneous in several respects. First, the claim is made that the charge placed the burden of proof upon Heublein when the jury was told that Heublein had to “produce evidence which shows or demonstrates some legitimate and non-discriminatory reason for its employment decisions concerning the plaintiff, and that age was not a determinative factor.” Under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), a plaintiff in a discrimination case must present a prima facie case that adverse action was taken on the basis of an impermissible factor, in this instance, age. If he does, the defendant then has the burden of producing evidence of a non-discriminatory reason for the challenged action. If the defendant produces such evidence, the plaintiff is then" }, { "docid": "10489694", "title": "", "text": "two years plaintiff was ineligible for raises because of his unsatisfactory performance reviews. . Tr. at 272-73.' . EEOC v. Kallir, Philips, Ross, Inc., 420 F.Supp. 919, 923-24 (S.D.N.Y.1976), aff'd on opinion below, 559 F.2d 1203 (2d Cir.), cert. denied, 434 U.S. 920, 98 S.Ct. 395, 54 L.Ed.2d 277 (1977). . 29 U.S.C. § 216(b) (incorporated by reference in 29 U.S.C. § 262(b)). . 29 U.S.C. § 626(b) (emphasis added). . Congress ameliorated this requirement in 1947 by providing in § 11 of the Portal-to-Portal Act, 29 U.S.C. § 260, that in a FLSA action the court has discretion to disallow all or part of the liquidated damages if it finds that the employer acted in “good faith.” Our Court of Appeals has held “good faith” is not a defense to a liquidated damage claim based upon a “willful” violation of the ADEA. Goodman v. Heublein, Inc., 645 F.2d 127, 129-30 (2d Cir. 1981). See also Kelly v. American Standard, Inc., 640 F.2d 974 (9th Cir. 1981); Wehr v. Burroughs Corp., 619 F.2d 276 (3d Cir.1980); Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979). . 29 U.S.C. §§ 201-219 (1976). . § 7(b) of the ADEA, 29 U.S.C. § 626(b) incorporates the powers, remedies and procedures of the FLSA as set forth in 29 U.S.C. §§ 211(b), 216(b)-(e) and 217. . Wehr v. Burroughs Corp., 619 F.2d 276, 282 (3d Cir.1980) (“a review of the legislative history of the ADEA and its assimilated acts uncovers nothing helpful on th[e] question [or the meaning of ‘willfulness’].”); Syvock v. Milwaukee Boiler Mfg. Co., 665 F.2d 149, 154 (7th Cir.1981) (“[n]either the statute nor its legislative history has defined the term ‘willful’ ”). See generally Wehr v. Burroughs Corp., 619 F.2d 276, 279-83 (3d Cir.1980). . Spies v. United States, 317 U.S. 492, 497, 63 S.Ct. 364, 367, 87 L.Ed. 418 (1943) (citing United States v. Murdock, 290 U.S. 389, 394-96, 54 S.Ct. 223, 225-26, 78 L.Ed. 381 (1933)). See also United States v. Benjamin, 328 F.2d 854, 862 (2d Cir.), cert. denied, 377 U.S. 953, 84 S.Ct. 1361, 12 L.Ed.2d" }, { "docid": "22585179", "title": "", "text": "980; Syvock v. Milwaukee Boiler Manufacturing, 665 F.2d at 154. However, every showing of intentional discrimination does not entitle the plaintiff to liquidated damages. The fact that Congress did not incorporate the liquidated damages provisions of the Fair Labor Standards Act (FLSA) into the ADEA evinces a congressional intent to make a meaningful distinction between willful violations of the Act and violations that are not willful. See Lorillard v. Pons, 434 U.S. 575, 581, 98 S.Ct. 866, 870, 55 L.Ed.2d 40 (1978). See also Goodman v. Heublein, 645 F.2d at 129 n. 2. We hold that in order to show willfulness, an ADEA plaintiff must show that the employer’s actions were voluntary and intentional. The employer is not necessarily shielded from liability because he is unaware of the “implications of his actions under the Act.” Alternatively, the plaintiff may receive liquidated damages if he shows that the employer was reckless in not knowing that his actions were governed by the ADEA or that the employer acted in reckless disregard of whether his actions were covered by the ADEA. We also agree with the Third Circuit’s holding in Wehr that it is not necessary for the plaintiff to show that the employer acted with a specific intent to violate the Act. Wehr, 619 F.2d at 279 n. 5. See also Kelly at 980. Moreover, though a finding of good faith would preclude a finding of willfulness, it is not necessary that the trier of fact make express findings of fact on the good faith issue. Loeb, 600 F.2d at 1020; Wehr, 619 F.2d at 279 n. 5. Rather, in a jury trial the court’s instructions to the jury should focus on whether the employer deliberately, intentionally and knowingly discharged the employee because of his age. B. We now consider the jury instructions on the willfulness issue in light of the foregoing principles. Viewing the instructions as a whole, see supra, we hold that the district court adequately formulated the relevant considerations for the jury. Though our Court had not yet spoken on the issue of willfulness, we think the district court’s" }, { "docid": "23001717", "title": "", "text": "v. American Standard, Inc., 640 F.2d 974, 981 (9th Cir. 1981); Wehr v. Burroughs Corp., 619 F.2d 276, 279 (3d Cir. 1980); Loeb v. Textron, Inc., 600 F.2d 1003, 1020 (1st Cir. 1979). But see Hays v. Republic Steel Corp., 531 F.2d 1307 (5th Cir. 1976). . In Goodman v. Heublein, Inc., 645 F.2d 127 (2d Cir. 1981), the Second Circuit appeared to endorse the Wehr standard. It interpreted the Third Circuit’s recklessness standard as requiring a showing that the employer acted with reckless disregard as to whether its conduct was prohibited by the ADEA. Id. at 131 (dicta). . See, e. g., Smith & Leggette, Recent Issues in Litigation Under the Age Discrimination in Employment Act, 41 Ohio St.L.J. 349, 369 (1980). . In Title VII cases alleging disparate treatment under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), “[p]roof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment.” International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n.15, 97 S.Ct. 1843, 1854 n.15, 52 L.Ed.2d 396 (1977). If an inference of discriminatory motive were also crucial to recovery upon a disparate treatment theory under the ADEA, one could conclude that any ADEA violation premised upon disparate treatment is intentional and therefore liquidated damages should be automatic. As stated above, however, we agree with those courts that have allowed a finding of liability under the ADEA without any showing as to the defendant’s state of mind. . See also 113 Cong.Rec. 34,752 (remarks of Rep. Dwyer), 31,254 (remarks of Rep. Javits) (1967); Vazquez v. Eastern Air Lines, Inc., 579 F.2d 107, 112 (1st Cir. 1978); Smith & Leg-gette, Recent Issues in Litigation Under the Age Discrimination in Employment Act, 41 Ohio St.L.J. 349, 371 (1980); Note, The Age Discrimination in Employment Act of 1967, 90 Harv.L.Rev. 380, 383-84 (1976); Note, The Cost of Growing Old: Business Necessity and the Age Discrimination in Employment Act, 88 Yale L.J. 565, 579 (1979) (“Whatever the level of employer awareness, these [stereotyped]" }, { "docid": "22821894", "title": "", "text": "held that upon a finding of willfullness, liquidated damages in the amount of actual damages must be awarded. See Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir.1979); Goodman v. Heublein, Inc., 645 F.2d 127 (2d Cir.1981); Wehr v. Burroughs, Inc., 619 F.2d 276 (3d Cir.1980); Syrock v. Milwaukee Boiler Mfg. Co., 27 F.E.P. 610 (7th Cir.1981); Kelly v. American Standard, Inc., 640 F.2d 974 (9th Cir.1981). In the alternative, appellees argue that because of the specific finding that Hospital Service willfully violated the ADEA and because the district court declined to award liquidated damages without making factual findings of good faith, on the record, we must remand for such a determination. Hendrick, supra, is cited as support for this legal theory. In light of the ultimate disposition of the present case we must decline appellees’ offering. Accordingly, we express no view as to whether Hendrick requires a trial court to enter its factual findings on the record in order to support its discretion in this area. Nor do we believe the present facts warrant an inquiry into our established approach to liquidated damage awards. . Our understanding of the record indicates that Hachmeister was president-elect of Hospital Service. In turn Hospital Service is the parent organization of Group Medical and Surgical Service and Group Life and Health Company. Collectively these entities do business in Texas under the name Blue Cross-Blue Shield of Texas and enjoy an independent yet advisory relationship with other Blue Cross-Blue Shield plans. . The line managerial hierarchy of the marketing division in descending order is as follows: Vice President, Assistant Vice President, Regional Sales Manager I, Regional Sales Manager II, Regional Sales Manager III and District Manager. Director of Sales Training and Manager of National Accounts appear not to be considered line functions and report directly to the Vice President. In total the above titles represent approximately 29 persons, all with a significant degree of managerial authority. Appellees make much of Hachmeister’s consultations with two regional managers, individuals obviously within the managerial chain of command and vested with organizational responsibility. We find nothing invidious in" }, { "docid": "10489693", "title": "", "text": "such a formulation. Indeed, the very cases cited by defendant usé the test noted above. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir.1979); Laugeson v. Anaconda Co., 510 F.2d 307 (6th Cir.1975). See also note 6, supra. . See Dyer v. MacDougall, 201 F.2d 265, 269 (2d Cir.1952) (L. Hand, J.). . Tr. at 99. . Tr. at 112. . Tennant v. Peoria & Pekin Union Ry., 321 U.S. 29, 35, 64 S.Ct. 409, 412, 88 L.Ed. 520 (1944). See also Bailey v. Central Vermont Ry., 319 U.S. 350, 353, 63 S.Ct. 1062, 1064, 87 L.Ed. 1444 (1943); Tiller v. Atlantic Coast Line R.R., 318 U.S. 54, 68, 63 S.Ct. 444, 451, 87 L.Ed. 610 (1943). . See Tennant v. Peoria & Pekin Union Ry., 321 U.S. 29, 35, 64 S.Ct. 409, 412, 88 L.Ed. 520 (1944); Bevevino v. Saydjari, 574 F.2d 676, 685 (2d Cir. 1978). . This figure represents 6% annual increases in salary for the two years plaintiff was ineligible for raises because of his unsatisfactory performance reviews. . Tr. at 272-73.' . EEOC v. Kallir, Philips, Ross, Inc., 420 F.Supp. 919, 923-24 (S.D.N.Y.1976), aff'd on opinion below, 559 F.2d 1203 (2d Cir.), cert. denied, 434 U.S. 920, 98 S.Ct. 395, 54 L.Ed.2d 277 (1977). . 29 U.S.C. § 216(b) (incorporated by reference in 29 U.S.C. § 262(b)). . 29 U.S.C. § 626(b) (emphasis added). . Congress ameliorated this requirement in 1947 by providing in § 11 of the Portal-to-Portal Act, 29 U.S.C. § 260, that in a FLSA action the court has discretion to disallow all or part of the liquidated damages if it finds that the employer acted in “good faith.” Our Court of Appeals has held “good faith” is not a defense to a liquidated damage claim based upon a “willful” violation of the ADEA. Goodman v. Heublein, Inc., 645 F.2d 127, 129-30 (2d Cir. 1981). See also Kelly v. American Standard, Inc., 640 F.2d 974 (9th Cir. 1981); Wehr v. Burroughs Corp., 619 F.2d 276 (3d" }, { "docid": "23700309", "title": "", "text": "Steel Corp., 531 F.2d 1307 (5th Cir. 1976); Combes v. Griffin Television, Inc., 421 F.Supp. 841 (W.D.Okl.1976). The trial judge in the instant case relied on Hays in applying the defense. The rationale of the courts allowing the defense is that the ADEA should incorporate all of the FLSA remedies. The Hays court also expressed concern over automatically providing for liquidated damages, preferring trial court discretion. 531 F.2d at 1311. At the time of trial, Hays was the only circuit court case that had addressed this issue and the district courts were split. The two most recent cases to consider the issue, noting that Hays is the only appellate authority to the contrary, hold that the good faith defense of § 260 is not available. Wehr v. Burroughs Corp., 619 F.2d 276, 279 (3d Cir. 1980); Loeb v. Textron, Inc., 600 F.2d 1003, 1020 (1st Cir. 1979). Under section 216(b), the applicable FLSA provision, there is no requirement of willfulness as a predicate to an award of liquidated damages. On 'the other hand, the ADEA requires a finding of willfulness for liquidated damages. 29 U.S.C. § 626(b). The Loeb court reasoned that the “willfulness” requirement specifically added to the ADEA indicates that the good faith defense is not necessary: [Ujnder 29 U.S.C. § 216(b), standing alone, liquidated damages must be awarded once a violation is shown. Section 11 [29 U.S.C. § 260] mitigates this result in FLSA cases [citations]. In ADEA cases, the “willfulness” test serves the same function and renders Section 11 superfluous. 600 F.2d at 1020. The Loeb analysis is supported by the recent Supreme Court decision estab lishing the right to jury trials in ADEA actions. Lorillard v. Pons, 434 U.S. 575, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978). The Court stated that “[although § 7(e) of the ADEA, 29 U.S.C. § 626(e), expressly incorporates §§ 6 and 10 of the Portal-to-Portal Pay Act [29 U.S.C. §§ 255 and 259] ..., the ADEA does not make any reference to § 11, 29 U.S.C. § 260 . ...” We find this reasoning persuasive and hold that the good" }, { "docid": "3991261", "title": "", "text": "Act of 1947, Congress, dissatisfied with the automatic award of liquidated damages in suits under the FLSA, limited such awards as follows: In any action commenced prior to or on or after May 14, 1947 to recover unpaid minimum wages, unpaid overtime compensation, or liquidated damages, under the Fair Labor Standards Act of 1938, as amended, if the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of the Fair Labor Standards Act of 1938, as amended, the court may, in its sound discretion, award no liquidated damages or award any amount thereof not to exceed the amount specified in section 216 of this title. 29 U.S.C. § 260. In essence, NCR argues that Congress intended this section to apply in ADEA actions. This Circuit has not heretofore addressed the issue. A review of the case authority from other Circuits reveals that only the Fifth Circuit has accepted NCR’s position, Hedrick v. Hercules, Inc., 658 F.2d 1088 (5th Cir.1981); Hays v. Republic Steel Corp., 531 F.2d 1307 (5th Cir.1976), while the prevailing weight of authority is to the contrary. Goodman v. Heublein Inc., 645 F.2d 127 (2d Cir.1981); Kelly v. American Standard, Inc., 640 F.2d 974 (9th Cir.1981); Wehr v. Burroughs Corp., 619 F.2d 276 (3d Cir.1980); Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir.1979). See also, Syvock v. Milwaukee Boiler Mfg. Co., Inc., 665 F.2d 149, 154 and n. 4 (7th Cir.1981); But See Mistretta v. Sandia Corp., 639 F.2d 588, 595 and n. 4 (10th Cir.1980) (While stating that an employer’s good faith renders the award of liquidated damages discretionary, the Tenth Circuit declined to decide whether § 260 had been incorporated into the ADEA). Moreover, this Court finds that the discussion of the Act by the Supreme Court in Lorillard v. Pons, 434 U.S. 575, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978), relied upon by the majority of Circuits, precludes acceptance of NCR’s position. In Lorillard" }, { "docid": "22585178", "title": "", "text": "damages.” Id. at 980. In Syvock v. Milwaukee Boiler Manufacturing, 665 F.2d 149 (7th Cir.1981), the Seventh Circuit held that the plaintiff must prove that the defendant’s actions were knowing and voluntary, and that he knew or reasonably should have known that those actions were violative of the ADEA. Id. at 156. The Syvock court explained that this standard implied: “(1) that the employer knew or reasonably should have known what the requirements of the ADEA are; and (2) that the employer knew or reasonably should have known that his actions towards the plaintiff were inconsistent with those requirements.” Id. It appears that Congress, in adopting the liquidated damages provision, sought to distinguish cases in which there is intentional discrimination from those where the employer’s discrimination is not intentional. This interpretation is buttressed by the fact that Congress evidently intended that a plaintiff be able to prove age discrimination without proving intent to discriminate. Thus, the plaintiff must meet a higher burden of proof in order to receive liquidated damages. See Kelly, 640 F.2d at 980; Syvock v. Milwaukee Boiler Manufacturing, 665 F.2d at 154. However, every showing of intentional discrimination does not entitle the plaintiff to liquidated damages. The fact that Congress did not incorporate the liquidated damages provisions of the Fair Labor Standards Act (FLSA) into the ADEA evinces a congressional intent to make a meaningful distinction between willful violations of the Act and violations that are not willful. See Lorillard v. Pons, 434 U.S. 575, 581, 98 S.Ct. 866, 870, 55 L.Ed.2d 40 (1978). See also Goodman v. Heublein, 645 F.2d at 129 n. 2. We hold that in order to show willfulness, an ADEA plaintiff must show that the employer’s actions were voluntary and intentional. The employer is not necessarily shielded from liability because he is unaware of the “implications of his actions under the Act.” Alternatively, the plaintiff may receive liquidated damages if he shows that the employer was reckless in not knowing that his actions were governed by the ADEA or that the employer acted in reckless disregard of whether his actions were covered" }, { "docid": "23700308", "title": "", "text": "U.S.C. § 260 provides in part: [I]f the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of the Fair Labor Standards Act of 1938, as amended, the court may, in its sound discretion, award no liquidated damages or award any amount thereof not to exceed the amount specified in section 216 of this title. The ADEA incorporates the enforcement scheme of FLSA by referring specifically to sections 211, 216 and 217; it does not refer to the Portal-to-Portal Act. The Portal-to-Portal Act was enacted sometime before the ADEA. If Congress had intended section 11 of the Act, 29 U.S.C. § 260, to apply in ADEA actions it seems clear that it would also have been specifically incorporated by reference in § 626(b). Nevertheless, several courts have held that section 260 should apply to the ADEA as well as to the FLSA. Hays v. Republic Steel Corp., 531 F.2d 1307 (5th Cir. 1976); Combes v. Griffin Television, Inc., 421 F.Supp. 841 (W.D.Okl.1976). The trial judge in the instant case relied on Hays in applying the defense. The rationale of the courts allowing the defense is that the ADEA should incorporate all of the FLSA remedies. The Hays court also expressed concern over automatically providing for liquidated damages, preferring trial court discretion. 531 F.2d at 1311. At the time of trial, Hays was the only circuit court case that had addressed this issue and the district courts were split. The two most recent cases to consider the issue, noting that Hays is the only appellate authority to the contrary, hold that the good faith defense of § 260 is not available. Wehr v. Burroughs Corp., 619 F.2d 276, 279 (3d Cir. 1980); Loeb v. Textron, Inc., 600 F.2d 1003, 1020 (1st Cir. 1979). Under section 216(b), the applicable FLSA provision, there is no requirement of willfulness as a predicate to an award of liquidated damages. On 'the other hand, the ADEA" }, { "docid": "22585209", "title": "", "text": "did the employer know the Act was in the picture? (Emphasis added). This Circuit has not promulgated a definition of “willfulness” specifically applicable to the ADEA. The limited case authority on point is divergent. One approach has been to define “willful” as requiring a specific intent to violate the Act. Such an approach is clearly developed by the First Circuit in Loeb, supra. “An act is done ‘wilfully’ if done voluntarily and intentionally, and with the specific intent to do something the law forbids: that is to say, with bad purpose either to disobey or to disregard the law.” E. Devitt & C. Blackmar. Federal Jury Practice and Instructions § 14.06 at 384 (3d ed. 1977). 600 F.2d at 1020, n. 27. See also Coates v. National Cash Register Co., 433 F.Supp. 655 (D.W.Va.1977); Hodgson v. Hyatt, 318 F.Supp. 390 (N.D.Fla.1970). A majority of circuits considering the issue have concurred with Loeb insofar as it requires that the employer’s act be intentional and knowing. Syvock v. Milwaukee Boiler Manufacturing Co., 665 F.2d 149 (7th Cir.1981); Goodman v. Heublein, Inc., 645 F.2d 127 (2d Cir.1981); Kelly v. American Standard, Inc., 640 F.2d 974 (9th Cir.1981); Wehr v. Burroughs Corp., 619 F.2d 276 (3d Cir.1980). However, the Second and Third Circuits have added that willfulness could be established by merely “reckless” conduct. 645 F.2d at 131; 619 F.2d at 283. Further, the Ninth Circuit has concluded that both the “specific intent” and “reckless” additions to the basic knowing and intentional standard are improper. 640 F.2d at 980. The Seventh Circuit in Syvock, supra, appears to have harmonized this group of cases and synthesized the following test as the product of this line of authority: The standard for willfulness therefore should focus on the defendant’s state of mind at the time the allegedly discriminatory acts occurred. It must distinguish those situations in which an employer consciously discriminates against an employee because of age from those in which the discrimination is unconscious. This distinction is just as necessary in disparate treatment cases as it is when the plaintiff sues on a discriminatory impact theory." }, { "docid": "3991262", "title": "", "text": "Circuit has accepted NCR’s position, Hedrick v. Hercules, Inc., 658 F.2d 1088 (5th Cir.1981); Hays v. Republic Steel Corp., 531 F.2d 1307 (5th Cir.1976), while the prevailing weight of authority is to the contrary. Goodman v. Heublein Inc., 645 F.2d 127 (2d Cir.1981); Kelly v. American Standard, Inc., 640 F.2d 974 (9th Cir.1981); Wehr v. Burroughs Corp., 619 F.2d 276 (3d Cir.1980); Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir.1979). See also, Syvock v. Milwaukee Boiler Mfg. Co., Inc., 665 F.2d 149, 154 and n. 4 (7th Cir.1981); But See Mistretta v. Sandia Corp., 639 F.2d 588, 595 and n. 4 (10th Cir.1980) (While stating that an employer’s good faith renders the award of liquidated damages discretionary, the Tenth Circuit declined to decide whether § 260 had been incorporated into the ADEA). Moreover, this Court finds that the discussion of the Act by the Supreme Court in Lorillard v. Pons, 434 U.S. 575, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978), relied upon by the majority of Circuits, precludes acceptance of NCR’s position. In Lorillard v. Pons, the Supreme Court held that a jury trial is available in private actions seeking compensatory damages under the ADEA. In discussing the relation ship between the ADEA and FLSA, the Supreme Court stated: [I]n enacting the ADEA, Congress exhibited both a detailed knowledge of the FLSA provisions and their judicial interpretation and a willingness to depart from those provisions regarded as undersirable or inappropriate for incorporation. For example, in construing the enforcement sections of the FLSA, the courts had consistently declared that injunctive relief was not available in suits by private individuals but only in suits by the Secretary.... Congress made plain its decision to follow a different course in the ADEA by expressly permitting “such . .. equitable relief as may be appropriate to effectuate the purposes of [the ADEA] including without limitation judgments compelling employment, reinstatement or promotion” “in any action brought to enforce” the Act. § 7(b), 29 U.S.C. § 626(b) (emphasis added). Similarly, while incorporating into the ADEA the FLSA provisions authorizing awards of liquidated damages, Congress altered the" }, { "docid": "23001716", "title": "", "text": "a hospital under a job program requirement for obtaining welfare benefits after his unemployment compensation terminated. From December 1977 through July 1979, Sy-vock obtained welding work at two different foundries at lower rates of pay than he had received at Milwaukee Boiler. The plaintiff voluntarily terminated his employment at the first foundry in June 1978, and did not work again until August 1978. Syvock retained his job at the second foundry until shortly before he was hired by the Chicago, Milwaukee, St. Paul, and Pacific Railroad Company to perform repair and maintenance welding beginning August 1979. . Section 11 of the Portal to Portal Act, 29 U.S.C. § 260 (1976), mitigates this result somewhat by stating that liquidated damages need not be paid if the employer shows that his action or omission was in good faith. Section 11 of the Portal to Portal Act was not expressly incorporated into the ADEA and the weight of authority is that no “good faith” showing, as such by the employer is required under the ADEA. E. g., Kelly v. American Standard, Inc., 640 F.2d 974, 981 (9th Cir. 1981); Wehr v. Burroughs Corp., 619 F.2d 276, 279 (3d Cir. 1980); Loeb v. Textron, Inc., 600 F.2d 1003, 1020 (1st Cir. 1979). But see Hays v. Republic Steel Corp., 531 F.2d 1307 (5th Cir. 1976). . In Goodman v. Heublein, Inc., 645 F.2d 127 (2d Cir. 1981), the Second Circuit appeared to endorse the Wehr standard. It interpreted the Third Circuit’s recklessness standard as requiring a showing that the employer acted with reckless disregard as to whether its conduct was prohibited by the ADEA. Id. at 131 (dicta). . See, e. g., Smith & Leggette, Recent Issues in Litigation Under the Age Discrimination in Employment Act, 41 Ohio St.L.J. 349, 369 (1980). . In Title VII cases alleging disparate treatment under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), “[p]roof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment.” International Brotherhood of Teamsters v. United" }, { "docid": "10489696", "title": "", "text": "497 (1964). Cf. Walker v. United States, 192 F.2d 47, 49 (10th Cir. 1951). See Browder v. United States, 312 U.S. 335, 341-42, 61 S.Ct. 599, 602-03, 85 L.Ed. 862 (1941). . See, e.g., Loeb v. Textron, Inc., 600 F.2d 1003, 1020 n. 27 (1st Cir.1980) (act is done willfully if “done voluntarily and intentionally, and with the specific intent to do something the law forbids; that is to say, with bad purpose either to disobey or to disregard the law”) quoting E. Devitt & C. Blackmar, Federal Jury Practice & Instructions § 14.06, at 384 (3d ed. 1977); Goodman v. Heublein, Inc., 645 F.2d 127, 131 (2d Cir.1981) (employer “‘knew’ or showed ‘reckless disregard’ as to whether its conduct was prohibited by ADEA”) (dictum; citation and footnote omitted); Crosland v. Charlotte Eye, Ear and Throat Hospital, 686 F.2d 208, 217 (4th Cir.1982) (“employer acts willfully and subjects himself to [liability for liquidated damages under ADEA] if he knows, or has reason to know, that his conduct is governed by [the Act]”) quoting Spagnuolo v. Whirlpool Corp., 641 F.2d 1109, 1113-14 (4th Cir.1981); Blackwell v. Sun Elec. Corp., 696 F.2d 1176, 1184 (6th Cir.1983) (“in order to show willfulness, an ADEA plaintiff must show that the employer’s actions were voluntary and intentional.... Alternatively, the plaintiff may receive liquidated damages if he shows that the employer was reckless in not knowing that his actions were governed by the ADEA or that the employer acted in reckless disregard of whether his actions were governed by the ADEA”; “whether the employer deliberately, intentionally and knowingly discharged the employee because of his age.”) (footnote omitted); Syvock v. Milwaukee Boiler Mfg. Co., 665 F.2d 149, 155-58 (7th Cir.1981) (“a finding of willfulness should lie only if there is some showing as to the defendant’s knowledge of the illegality of his actions .... [that] defendant knew or reasonably should have known that its actions toward [plaintiff] were violative of the ADEA”) (footnote omitted); Kelly v. American Standard, Inc., 640 F.2d 974, 980 (9th Cir.1981) (“employer must act ‘deliberately, intentionally, and knowingly’ ”; specific intent not required)" }, { "docid": "10789762", "title": "", "text": "such damages may not be awarded unless the court determines that the employer was not acting in good faith. This contention is based on the interrelationship between the ADEA and two other federal statutes. Section 7(b) of the ADEA, 29 U.S.C. § 626(b) (1976), incorporates the “powers, remedies, and procedures” of the Fair Labor Standards Act (FLSA), as set forth in FLSA §§ 11(b), 16(bHe), and 17, 29 U.S.C. §§ 211(b), 216(b)-(e), and 217 (1976). As enacted, § 16(b) of the FLSA had mandated awards of liquidated damages, equal in amount to wages due, but Congress ameliorated this requirement in 1947 by providing, in § 11 of the Portal-to-Portal Act (PPA), 29 U.S.C. § 260 (1976), that in an FLSA action the court has discretion to disallow all or part of the liquidated damages if it finds that the employer acted in “good faith.” Heublein contends that § 7(b) of the ADEA, by incorporating FLSA procedures, also incorporates this procedural aspect of the PPA. We disagree. In Lorillard v. Pons, 434 U.S. 575,98 S.Ct. 866, 55 L.Ed.2d 40 (1978), the Supreme Court pointedly observed that the ADEA selectively adopts only some of the procedural changes that the PPA made applicable to the FLSA. Id. at 581-82 n.8. As the Court noted, the ADEA, in § 7(e), 29 U.S.C. § 626(e) (1976), specifically incorporates §§ 6 and 10 of the PPA, 29 U.S.C. §§ 255 and 259 (1976) (concerning statute of limitations and reliance on agency rulings), but not § 11, 29 U.S.C. § 260 (1976), the liquidated damages provision. Moreover, in enacting the ADEA, Congress departed from the FLSA procedure by adopting “willfulness” as an element of liability for liquidated damages, and by committing the issue of the employer’s, state of mind to the trier of fact. We reject Heublein’s contention, agreeing with the three Circuits that have considered the same claim after the Supreme Court’s opinion in Lorillard. Kelly v. American Standard, Inc., 640 F.2d 974 (9th Cir. 1981); Wehr v. Burroughs Corp., 619 F.2d 276 (3d Cir. 1980); Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979)." }, { "docid": "23001680", "title": "", "text": "in accordance with the powers, remedies, and procedures provided under the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219 (1976), with certain specified exceptions. In contrast to the automatic doubling of damages for violations of the FLSA, 29 U.S.C. § 216(b), section 7(b) of the ADEA, 29 U.S.C. § 626(b) (1976), allows liquidated damages only in the event of willful violations of the Act. If such liquidated damages are allowed, they are equivalent to the amount of back pay and benefits denied the plaintiff by the employer. Neither the statute nor its legislative history has defined the term “willful.” This court has not previously determined the standard for willfulness under 29 U.S.C. § 626(b) (1976). Other courts of appeals have reached divergent interpretations of the term. The First Circuit has defined willfulness to require that the employer’s discriminatory act be voluntary, intentional, and done with specific intent to violate the Act. Loeb v. Textron, Inc., 600 F.2d 1003, 1020 n.27 (1st Cir. 1979). In Wehr v. Burroughs Corp., 619 F.2d 276, 283 (3d Cir. 1980), the court upheld a finding of willfulness on a jury instruction that defined “willful” as action that was deliberate, intentional, and knowing. The Third Circuit went on to add, however, that the instruction placed a higher burden on the plaintiff than was required by the Act: willfulness under 29 U.S.C. § 626(b) (1976) could also be found if the plaintiff proved “that the discharge was precipitated in reckless disregard of the consequences.” Id. (dicta). The court did not specify whether liability under the ADEA constituted the “consequences” to which it referred. The Ninth Circuit, in Kelly v. American Standard, Inc., 640 F.2d 974, 980 (9th Cir. 1981), rejected the “specific intent” approach of the First Circuit because this standard “could haVe the anomalous effect of encouraging employers to know as little as possible about the ADEA so that they would not be liable for liquidated damages.” The Kelly court expressed approval of the Wehr opinion but rejected the Third Circuit’s standard insofar as it equated willfulness with reckless conduct. Id. at 980 n.7. Congress," }, { "docid": "22902837", "title": "", "text": "she reached normal retirement age.” Id. at 1100-01 & n. 8. The only circuit holding to the contrary on this issue did so in a footnote, without explaining why front pay should be foreclosed. Kolb v. Goldring, Inc., 694 F.2d 869, 874-75 & n. 4 (1st Cir.1982) (citing Monroe v. Penn-Dixie Cement Corp., 335 F.Supp. 231, 235 (N.D.Ga.1971)). But see Loeb v. Textron, Inc., 600 F.2d 1003, 1022-23 (1st Cir.1979). The third and tenth circuits have each discussed the arguments for and against an award of front pay, but have not actually decided the issue of its availability. Wehr v. Burroughs Corp., 619 F.2d 276, 283 (3rd Cir.1980); Blim v. Western Electric Co., 731 F.2d 1473, 1479 (10th Cir.1984). We agree with the eighth and ninth circuits, and hold that front pay is an available remedy in appropriate cases brought under the ADEA. While the enforcement provisions of the ADEA were generally modeled after the remedies in the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 211(b), 216, and 217, which were incorporated by reference into the ADEA’s § 626(b), see Lorillard v. Pons, 434 U.S. 575, 577-78, 98 S.Ct. 866, 868-69, 55 L.Ed.2d 40 (1978), congress did more than merely incorporate that statute’s back pay and limited injunctive remedies. It expressly authorized the district courts to grant an ADEA claimant such legal or equitable relief as may be appropriate to effectuate the purposes of [the act], including without limitation judgments compelling employment, reinstatement or promotion, or enforcing the liability for amounts [owing to a person as a result of the violation of the ADEA]. 29 U.S.C. § 626(b). Guided by this broad grant of remedial authority, we have previously encouraged district judges in this circuit to fashion remedies designed to ensure that victims of age discrimination are made whole. Geller v. Markham, 635 F.2d 1027, 1036 (2d Cir. 1980) , cert. denied, 451 U.S. 945, 101 S.Ct. 2028, 68 L.Ed.2d 332 (1981). We now hold specifically that this language permits a district court, in appropriate circumstances, to award front pay to victims of age discrimination. In many cases involving" }, { "docid": "3991263", "title": "", "text": "v. Pons, the Supreme Court held that a jury trial is available in private actions seeking compensatory damages under the ADEA. In discussing the relation ship between the ADEA and FLSA, the Supreme Court stated: [I]n enacting the ADEA, Congress exhibited both a detailed knowledge of the FLSA provisions and their judicial interpretation and a willingness to depart from those provisions regarded as undersirable or inappropriate for incorporation. For example, in construing the enforcement sections of the FLSA, the courts had consistently declared that injunctive relief was not available in suits by private individuals but only in suits by the Secretary.... Congress made plain its decision to follow a different course in the ADEA by expressly permitting “such . .. equitable relief as may be appropriate to effectuate the purposes of [the ADEA] including without limitation judgments compelling employment, reinstatement or promotion” “in any action brought to enforce” the Act. § 7(b), 29 U.S.C. § 626(b) (emphasis added). Similarly, while incorporating into the ADEA the FLSA provisions authorizing awards of liquidated damages, Congress altered the circumstances under which such awards would be available in ADEA actions by mandating that such damages be awarded only where the violation of the ADEA is willful. Id. at 582, 98 S.Ct. at 871 (citations omitted). The footnote accompanying the preceding quotation is particularly instructive: By its terms, 29 U.S.C. § 216(b) requires that liquidated damages be awarded as a matter of right for violations of the FLSA. However, in response to its dissatisfaction with that judicial interpretation of the provision, Congress enacted the Portal-to-Portal Pay Act of 1947, 61 Stat. 84, which inter alia, grants courts authority to deny or limit liquidated damages where the “employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of” the FLSA § 11, 29 U.S.C. § 260 (1970 ed., Supp. V). Although § 7(e) of the ADEA, 29 U.S.C. § 626(e), expressly incorporates §§ 6 and 10 of" }, { "docid": "10489695", "title": "", "text": "Cir.1980); Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979). . 29 U.S.C. §§ 201-219 (1976). . § 7(b) of the ADEA, 29 U.S.C. § 626(b) incorporates the powers, remedies and procedures of the FLSA as set forth in 29 U.S.C. §§ 211(b), 216(b)-(e) and 217. . Wehr v. Burroughs Corp., 619 F.2d 276, 282 (3d Cir.1980) (“a review of the legislative history of the ADEA and its assimilated acts uncovers nothing helpful on th[e] question [or the meaning of ‘willfulness’].”); Syvock v. Milwaukee Boiler Mfg. Co., 665 F.2d 149, 154 (7th Cir.1981) (“[n]either the statute nor its legislative history has defined the term ‘willful’ ”). See generally Wehr v. Burroughs Corp., 619 F.2d 276, 279-83 (3d Cir.1980). . Spies v. United States, 317 U.S. 492, 497, 63 S.Ct. 364, 367, 87 L.Ed. 418 (1943) (citing United States v. Murdock, 290 U.S. 389, 394-96, 54 S.Ct. 223, 225-26, 78 L.Ed. 381 (1933)). See also United States v. Benjamin, 328 F.2d 854, 862 (2d Cir.), cert. denied, 377 U.S. 953, 84 S.Ct. 1361, 12 L.Ed.2d 497 (1964). Cf. Walker v. United States, 192 F.2d 47, 49 (10th Cir. 1951). See Browder v. United States, 312 U.S. 335, 341-42, 61 S.Ct. 599, 602-03, 85 L.Ed. 862 (1941). . See, e.g., Loeb v. Textron, Inc., 600 F.2d 1003, 1020 n. 27 (1st Cir.1980) (act is done willfully if “done voluntarily and intentionally, and with the specific intent to do something the law forbids; that is to say, with bad purpose either to disobey or to disregard the law”) quoting E. Devitt & C. Blackmar, Federal Jury Practice & Instructions § 14.06, at 384 (3d ed. 1977); Goodman v. Heublein, Inc., 645 F.2d 127, 131 (2d Cir.1981) (employer “‘knew’ or showed ‘reckless disregard’ as to whether its conduct was prohibited by ADEA”) (dictum; citation and footnote omitted); Crosland v. Charlotte Eye, Ear and Throat Hospital, 686 F.2d 208, 217 (4th Cir.1982) (“employer acts willfully and subjects himself to [liability for liquidated damages under ADEA] if he knows, or has reason to know, that his conduct is governed by [the Act]”) quoting Spagnuolo v." } ]

[ { "docid": "22629630", "title": "", "text": "“medium” between himself and the State. Maine v. Moulton, 474 U. S. 159, 176 (1985). Accordingly, the Sixth Amendment “imposes on the State an affirmative obligation to respect and preserve the accused’s choice to seek [the assistance of counsel],” id., at 171, and therefore “[t]he determination whether particular action by state agents violates the accused’s right to . . . counsel must be made in light of this obligation.” Id.,, at 176. To be sure, the Sixth Amendment is not violated whenever, “by luck or happenstance,” the State obtains incriminating statements from the accused after the right to counsel has attached. It is violated, however, when “the State obtains incriminating statements by knowingly circumventing the accused’s right to have counsel present in a confrontation between the accused and a state agent.” Ibid, (footnote omitted). As we explained in Henry, where the accused has not waived his right to counsel, the government knowingly circumvents the defendant’s right to counsel where it “deliberately elicit[s]” inculpatory admissions, 447 U. S., at 270, that is, “intentionally creat[es] a situation likely to induce [the accused] to make incriminating statements without the assistance of counsel.” Id., at 274. In Henry, we found that the Federal Government had “deliberately elicited” incriminating statements from Henry based on the following circumstances. The jailhouse informant, Nichols, had apparently followed instructions to obtain information without directly questioning Henry and without initiating conversations concerning the charges pending against Henry. We rejected the Government’s argument that because Henry initiated the discussion of his crime, no Sixth Amendment violation had occurred. We pointed out that under Massiah v. United States, 377 U. S. 201 (1964), it is irrelevant whether the informant asks pointed questions about the crime or “merely engage[s] in general conversation about it.” 447 U. S., at 271-272, and n. 10. Nichols, we noted, “was not a passive listener; ... he had ‘some conversations with Mr. Henry’ while he was in jail and Henry’s incriminatory statements were ‘the product of this conversation.’” Id., at 271. In deciding that Nichols’ role in these conversations amounted to deliberate elicitation, we also found three other" } ]

[ { "docid": "16110978", "title": "", "text": "84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). In Massiah, the Supreme Court held that it is a violation of the Sixth Amendment right to counsel for a private individual, acting as a government agent, to “deliberately elicit[ ]” incriminating statements from the accused. Id. at 206, 84 S.Ct. at 1203. The Massiah rule covers only those statements obtained as a result of an intentional effort on the part of the government, so information gotten before the inmates became agents/informants is not protected by the rule. If, however, an informant obtains some initial evidence, approaches the government to make a deal on the basis of that information, and then-with the backing of the government-deliberately elicits further evidence from an accused, the materials gotten after such government contact are properly excluded under the Massiah rule. Stevens argues that the three inmates to whom he gave the incriminating statements and documents admitted at trial were acting as government informants throughout their communication with him. Although he apparently concedes that his initial contact with each of them occurred before they had formalized agreements with the government, Stevens asks us to conclude that they were informants within the meaning of Massiah throughout their interactions with him. He argues that if an inmate receives information from another inmate and subsequently transmits it to the government, that information is inadmissible under the Massiah rule whenever the information is received in the hope of exchanging it for a benefit (for example, trading it for a reduction in sentence). This contention fails for two reasons. First, to treat every inmate who hopes to cut some future deal as a “government informant” is to extend the idea behind Massiah far beyond its natural reach, and that we are not willing to do. Second, Stevens himself initiated the conversations with Franco, Ber-man, and Streb during which they obtained the challenged information. And the Massi-ah rule does not apply to statements made completely voluntarily by an accused. United States v. Accardi, 342 F.2d 697, 701 (2d Cir.), cert. denied, 382 U.S. 954, 86 S.Ct. 426, 15 L.Ed.2d 359 (1965). Massiah is supposed" }, { "docid": "22642411", "title": "", "text": "reasonable inference from this statement is that Nichols was paid when he produced information, not that Nichols was continuously on the payroll of the FBI. Here, the service requested of Nichols was that he obtain incriminating information from Henry; there is no indication that Nichols would have been paid if he had not performed the requested service. Two aspects of the agent’s affidavit are particularly significant. First, it is clear that the agent in his discussions with Nichols singled out Henry as the inmate in whom the agent had a special interest. Thus, the affidavit relates that “I specifically recall telling Nichols that he was not to question Henry or these individuals” and “I recall telling Nichols not to initiate any conversations with Henry regarding the bank robbery charges,” but to “pay attention to the information furnished by Henry.” (Emphasis added.) Second, the agent only instructed Nichols not to question Henry or to initiate conversations regarding the bank robbery charges. Under these instructions, Nichols remained free to discharge his task of eliciting the statements in myriad less direct ways. The situation where the “listening post” is an inanimate electronic device differs; such a device has no capability of leading the conversation into any particular subject or prompting any particular replies. See, e. g., United States v. Hearst, 563 F. 2d 1331, 1347-1348 (CA9 1977), cert. denied, 435 U. S. 1000 (1978). However, that situation is not presented in this case, and there is no occasion to treat it; nor are we called upon to pass on the situation where an informant is placed in close proximity but makes no effort to stimulate conversations about the crime charged. No doubt the role of the agent at the time of the conversations between Massiah and his codefendant was more active than that of the federal agents here. Yet the additional fact in Massiah that the agent was monitoring the conversations is hardly determinative. In both Massiah and this case, the informant was charged with the task of obtaining information from an accused. Whether Massiah's codefendant questioned Massiah about the crime or merely" }, { "docid": "23440900", "title": "", "text": "Gregory and the State as relates to appellant. Therefore, we hold that Gregory was not acting as an agent for the State, and therefore the trial court did not err in failing to suppress his testimony. Castro v. State, 844 P.2d 159, 170 (Okla.Crim. App.1992) (citations omitted). “[T]he Supreme Court has held that an individual who stands indicted of a crime is denied his right to counsel when agents of the state circumvent that right by ‘deliberately elicit[ing]’ inculpatory statements from him in the absence of his counsel, absent a voluntary and knowing waiver.” Bey v. Morton, 124 F.3d 524, 528 (3d Cir.1997) (quoting Michigan v. Harvey, 494 U.S. 344, 348-49, 110 S.Ct. 1176, 1179-80, 108 L.Ed.2d 293 (1990)). Thus, the police must do more than merely listen: “the defendant must demonstrate that the police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks.” Kuhlmann v. Wilson, 477 U.S. 436, 459, 106 S.Ct. 2616, 2630, 91 L.Ed.2d 364 (1986). The Oklahoma state courts, both at trial and on appeal, found no evidence supporting Mr. Castro’s claim that Gregory had some arrangement or understanding with the State pursuant to which he elicited information from Mr. Castro. Those factual findings are entitled to a presumption of correctness, unless we determine that they are “not fairly supported by the record.” Demosthenes v. Baal, 495 U.S. 731, 735, 110 S.Ct. 2223, 2225, 109 L.Ed.2d 762 (1990) (per curiam) (quoting 28 U.S.C. § 2254(d)(8)). Mr. Castro points to nothing specific in the record refuting those factual findings; rather, he- continues to rely upon the circumstance' that he in fact revealed damaging information to Gregory, and Gregory’s subsequent sentence was lighter than Mr. Castro claims it otherwise would have been. Those speculative accusations are insufficient to convince us that Gregory was acting as a state agent, deliberately eliciting information from Mr. Castro. We therefore reject this argument. IV. Speedy Trial Claim On September 26, 1983, the State filed an information charging Mr. Castro with robbery by force or fear, larceny of an automobile, and first degree murder. He" }, { "docid": "23404786", "title": "", "text": "weight of the statutorily authorized aggravating circumstances. Accordingly, we discern no prejudice with respect to petitioner’s sentencing. ANDERSON, Circuit Judge, concurring in part and dissenting in part: I concur in all of the opinion for the court except Part H.B., with regard to the jailhouse informant, Chavers. With respect to that issue, I respectfully dissent. In my judgment, the line of cases beginning with Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), and, in particular, United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980), require reversal in this case. In Massiah, the Supreme Court held that the Sixth Amendment prohibits law enforcement officers from deliberately eliciting incriminating information from a defendant in the absence of counsel after formal charges have been lodged against him. In Henry, the Supreme Court applied the Massiah principle to a situation very similar to that in the instant case. While Henry was in jail, a fellow inmate engaged him in more than incidental conversation about Henry’s crime and as a result Henry made incriminating statements. The in mate-informant had for at least a year been paid when he produced information. After learning of the informant’s access to Henry in the jail, the Federal Bureau of Investigation agent told him not to question Henry or initiate any conversations with Henry, but to be alert to any statements made by Henry. The Court implicitly held that the inmate-informant’s activities — i.e., deliberately eliciting statements from Henry— were attributable to the government. The inmate-informant was more than a mere passive listener, and the Court concluded that he had “deliberately elicited” the incriminating statements in violation of Massiah. Although the FBI agent did not intend for the informant to take affirmative steps to secure incriminating information, the Court expressly held that the FBI agent must have known the likelihood thereof, and that this violated the “deliberately elicit” test. When the affirmative actions designed to elicit incriminating statements were performed by another inmate, as in this case and in Henry, the agency status of that inmate-informant is a necessary" }, { "docid": "23128212", "title": "", "text": "Matteo argues that Lubking deliberately elicited incriminating statements from him in both the first and second telephone conversations. In the first conversation, Matteo claims, Lubking deliberately elicited thformation about the location of the gun by falsely telling Mat-teo he was not working for the police. This falsehood allegedly induced Matteo to tell Lubking where the gun was hidden. Regarding the second conversation, Mat-teo bases his claim on the fact that Lubk-ing asked several questions about the precise location of the gun: for example, \"So it's not in the grass?\"; \"So it's almost underneath the bridge?\"; \"Was it frozen?\"; and \"Was the water frozen when you dropped it?\" We must determine whether the state court's decision that these statements did not qualify as \"deliberate elicitation\" was contrary to, or an unreasonable application of, the relevant Supreme Court precedent. The Supreme Court has made clear that \"the primary concern of the Massiah line of decisions is secret interrogation by investigatory techniques that are the equivalent of direct police interrogation.\" Kuhlmann v. Wilson, 477 U.S. 436, 459, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986). Accordingly, a defendant does not prove a Sixth Amendment violation \"simply by showing that an informant, either through prior arrangement or voluntarily, reported his incriminating statements to the police. Rather, the defendant must demonstrate that the police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks.\" Id. Applying this reasoning, the Court in Kuhlmann found no constitutional deprivation where police placed a man who had previously agreed to act as an informant in the same jail cell as the suspect, who then spontaneously made incriminating remarks to the informant. The lesson of Kuhlmcvnn, we believe, is that the use of an informant-even surreptitiously and through prior arrangement-does not violate the Sixth Amendment so long as the informant merely listens to and reports the incriminating statements, rather than affirmatively seeking to induce them. See Brink, 39 F.3d at 422 (noting that the Sixth Amendment requires an informant to be no -more than a passive “listening post”)- In this sense, the limitations on" }, { "docid": "23404787", "title": "", "text": "a result Henry made incriminating statements. The in mate-informant had for at least a year been paid when he produced information. After learning of the informant’s access to Henry in the jail, the Federal Bureau of Investigation agent told him not to question Henry or initiate any conversations with Henry, but to be alert to any statements made by Henry. The Court implicitly held that the inmate-informant’s activities — i.e., deliberately eliciting statements from Henry— were attributable to the government. The inmate-informant was more than a mere passive listener, and the Court concluded that he had “deliberately elicited” the incriminating statements in violation of Massiah. Although the FBI agent did not intend for the informant to take affirmative steps to secure incriminating information, the Court expressly held that the FBI agent must have known the likelihood thereof, and that this violated the “deliberately elicit” test. When the affirmative actions designed to elicit incriminating statements were performed by another inmate, as in this case and in Henry, the agency status of that inmate-informant is a necessary prerequisite for a Henry claim. Unless the informant’s actions are attributable to the state, then there has been no deliberate elicitation by the state. There are two prongs of a Henry claim, and each must be satisfied for a defendant to prevail: (1) the informant’s actions must be attributable to the state; and (2) the informant must be more than just a passive listener — he must “deliberately elicit” the incriminating information from the defendant. Henry, 447 U.S. at 269-72, 100 S.Ct. at 2186-88; United States v. Taylor, 800 F.2d 1012, 1015 (10th Cir.1986); United States v. Geittmann, 733 F.2d 1419,1427 (10th Cir.1984). I refer to the former as the “agency” prong and the latter as the “deliberately elicit” prong. The ultimate issue is whether what has happened is the functional equivalent of interrogation by the government. Unless the agency prong is met, the informant’s activities are not attributable to the government. On the other hand, if the acts of the informant are attributable to the government, then the question becomes whether the informant has" }, { "docid": "10654849", "title": "", "text": "who instructed Geralds to “not get any information from Mr. Wilson”; in further conversations, Geralds and Wilson discussed topics “from girls to music [to] cars,” and Wilson asked for help in finding a woman and in checking on the gang status of another inmate. Even assuming that Geralds deliberately elicited information from Wilson in the first conversation (about OG SI), Geralds was not a government agent at that time. More than a cooperation agreement is required to make an informant a government agent with regard to a particular defendant. United States v. Birbal, 113 F.3d 342, 346 (2d Cir.1997). An informant becomes a government agent vis-avis a defendant when the informant is “instructed by the police to get information about the particular defendant.” Id. This first prison conversation was initiated by Wilson, and Geralds was under no government influence. True, the prosecutors had showed interest in Wilson in a meeting with Geralds before this conversation — and before Wilson or the prosecutors knew that Geralds would meet Wilson in prison — but evincing interest did not amount to an instruction sufficient to make Geralds a government agent. Cf. United States v. Henry, 447 U.S. 264, 270-71 & n. 8, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980) (holding that an informant was a government agent where the investigators were aware that the informant “had access” to the defendant and they “singled out” the defendant). . Further assuming arguendo that Geralds became a government agent after he reported the OG SI conversation when the prosecutors knew that Geralds had access to Wilson and had delivered information about him-Geralds’s testimony still did not violate Wilson’s Sixth Amendment rights. There is no evidence that Geralds did anything in the later conversations with Wilson but follow the government’s instructions to “merely listen[ ].” See Kuhlmann v. Wilson, 477 U.S. 436, 459, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986). In any event, the only damaging admission to which Geralds testified was Wilson’s claim to OG SI status in the first conversation, at which point Geralds was not a government agent. Geralds’s testimony did not infringe Wilson’s" }, { "docid": "2303938", "title": "", "text": "role as a government informant in the Post case. Post thus could not have added this evidence to the record on direct appeal, and he properly brought the claim in post-conviction proceedings. And because the state court misapplied the res judicata defense and did not decide it on the merits, the claim is not barred, and we must review it de novo. See Maples, 340 F.3d at 436-37. Massiah held that it violates a defendant’s Sixth Amendment right to counsel when the State uses at trial against a defendant, “evidence of his own incriminating words, which ... agents had deliberately elicited from him after he had been indicted and in the absence of his counsel.” 377 U.S. at 206, 84 S.Ct. 1199. Massiah’s “primary concern ... is secret interrogation by investigatory techniques that are the equivalent of direct police interrogation.” Kuhlmann v. Wilson, 477 U.S. 436, 459, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986). The key here, therefore, is that the techniques must be shown to have been the equivalent of direct police interrogation. There is no constitutional violation when by “happenstance [] the State obtains incriminating statements from the accused after the right to counsel has attached.” Id. Thus, “a defendant does not make out a violation of [the Sixth Amendment] simply by showing that an informant ... reported his incriminating statements to the police.” Id. Instead, a defendant “must demonstrate that the ... informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks.” Id.; see also United States v. Henry, 447 U.S. 264, 270, 273, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980) (holding that there is a Massiah violation when a government informant “deliberately used his position to secure incriminating information from [the defendant] when counsel was not present”). Post has failed to make this showing. Post points to a July 29, 1984, letter from Slusher to the prosecution as evidence that he did more than “merely listen” to Post. He notes that the letter states that “No more than 20 minutes [ago], I finally got the complete story from Ron Post as" }, { "docid": "22642402", "title": "", "text": "There, after the accused had been charged, he made incriminating statements to his codefendant, who was acting as an agent of the Government. In reversing the conviction, the Court held that the accused was denied “the basic protections of [the Sixth Amendment] when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicted from him.” Id., at 206. The Massiah holding rests squarely on interference with his right to counsel. The question here is whether under the facts of this case a Government agent “deliberately elicited” incriminating statements from Henry within the meaning of Massiah. Three factors are important. First, Nichols was acting under instructions as a paid informant for the Government; second, Nichols was ostensibly no more than a fellow inmate of Henry; and third, Henry was in custody and under indictment at the time he was engaged in conversation by Nichols. The Court of Appeals viewed the record as showing that Nichols deliberately used his position to secure incriminating information from Henry when counsel was not present and held that conduct attributable to the Government. Nichols had been a paid Government informant for more than a year; moreover, the FBI agent was aware that Nichols had access to Henry and would be able to engage him in conversations without arousing Henry’s suspicion. The arrangement between Nichols and the agent was on a contingent-fee basis; Nichols was to be paid only if he produced useful information. This combination of circumstances is sufficient to support the Court of Appeals’ determination. Even if the agent’s statement that he did not intend that Nichols would take affirmative steps to secure incriminating information is accepted, he must have known that such propinquity likely would lead' to that result. The Government argues that the federal agents instructed Nichols not to question Henry about the robbery. Yet according to his own testimony, Nichols was not a passive listener; rather, he had “some conversations with Mr. Henry” while he was in jail and Henry’s incriminatory statements were “the product of this conversation.” While affirmative interrogation, absent" }, { "docid": "23185084", "title": "", "text": "agent and had,.through .his conversations with Henry, deliberately elicited the statements in violation of Henry’s sixth amendment rights. In Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986), the police intentionally placed the defendant in a cell with Lee, a prisoner who had agreed to act as an informant, in an attempt to discover the identities of the defendant’s accomplices. They instructed the informant not to question Wilson about his crimes but simply to listen and report any information that Wilson volunteered. Unlike the informant in Henry, Lee, for the most part, obeyed instructions. The opinion suggests that the only statement he made in response to any of Wilson’s comments about the trial was that Wilson’s story “didn’t sound too good.” Wilson ultimately confessed to Lee, and the government introduced those statements at his trial. The Court held that Lee — although a government agent — had acted only as a listening post and had done nothing to elicit the statements from Wilson. Both Henry and Kuhlmann focused more directly on whether the challenged statements had been deliberately elicited rather than the question of whether the informants were acting as government agents when the statements were made. In both cases, the Court concluded without discussion that the informants were agents. It is not hard to see why: in each case the government officials identified specific prisoners from whom they wanted information and found informants to retrieve it. See also Arizona v. Fulminante, — U.S. -, 111 S.Ct. 1246, 1250, 113 L.Ed.2d 302 (1991). Nichols was told to pay attention to the handful of federal prisoners in a county jail; Lee was told to pay attention to his cellmate. Recognizing this fact, we have in the past “refuse[d] to extend the rule of Massiah and Henry to situations where an individual, acting on his own initiative, deliberately elicits incriminating information.” United States v. Malik, 680 F.2d 1162, 1165 (7th Cir.1982); see also United States v. Metcalfe, 698 F.2d 877, 882 (7th Cir.), cert. denied, 461 U.S. 910, 103 S.Ct. 1886, 76 L.Ed.2d 814 (1983). In Malik, the" }, { "docid": "16110977", "title": "", "text": "contacted the agents on a Friday and set up a meeting with them for the following Monday. On his own initiative, he used the intervening weekend to obtain the incriminating documents. In return for the information, the government posted $500 bad for Streb. On the basis of this and much other evidence, Stevens was convicted on sixteen counts related to the possession and use of explosive devices. He was sentenced to four terms of life imprisonment without possibility of parole, and several other terms of years to be served either concurrently or consecutively with these life terms. He now appeals, asking this Court to reverse his conviction because of the use of testimony allegedly obtained in violation of his constitutional rights. He also claims a variety of other trial errors. DISCUSSION A. The Testimony by Stevens’ Fellow Inmates Stevens contends that the government’s use of testimony offered by inmates with whom he had spoken while incarcerated violated his Sixth Amendment right to counsel under the rule announced in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). In Massiah, the Supreme Court held that it is a violation of the Sixth Amendment right to counsel for a private individual, acting as a government agent, to “deliberately elicit[ ]” incriminating statements from the accused. Id. at 206, 84 S.Ct. at 1203. The Massiah rule covers only those statements obtained as a result of an intentional effort on the part of the government, so information gotten before the inmates became agents/informants is not protected by the rule. If, however, an informant obtains some initial evidence, approaches the government to make a deal on the basis of that information, and then-with the backing of the government-deliberately elicits further evidence from an accused, the materials gotten after such government contact are properly excluded under the Massiah rule. Stevens argues that the three inmates to whom he gave the incriminating statements and documents admitted at trial were acting as government informants throughout their communication with him. Although he apparently concedes that his initial contact with each of them occurred before" }, { "docid": "10654846", "title": "", "text": "decision in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). (Wilson’s contention that Geralds and another witness gave testimony about the Bloods that was inadmissible is rejected in the margin. ) Wilson had met Geralds through fellow Bloods members Green and Whitten. When Wilson encountered Geralds during Wilson’s pre-trial detention, Geralds was subject to a cooperation agreement in another case. In their first conversation in prison, Geralds testified, Geralds mentioned that a high-ranking Blood known as the “Original Gangster Staten Island” (or “OG SI”) was in the same prison. Wilson expressed the view that this OG SI was a government informant, and added with a smile that Wilson himself should be the OG SI because he had put in sufficient “work.” Geralds clarified for the jury that “work” meant violence, and that killing police officers would constitute this kind of work. Geralds also testified that in later conversations, Wilson enlisted Geralds’s help in finding a woman who would bear his child, and in checking out the gang status of a fellow inmate. Wilson objected on the ground that Geralds was acting as a government agent when he elicited these admissions, and that admission of Geralds’s testimony regarding his prison conversations with Wilson therefore would violate Wilson’s Sixth Amendment right to counsel. Massiah, 377 U.S. at 205-06, 84 S.Ct. 1199 (holding that surreptitious interrogations after defendant’s indictment conducted outside the presence of counsel violated defendant’s right to counsel). A jailhouse informant is deemed to have conducted an interrogation in violation of a defendant’s Sixth Amendment Massiah rights if the informant was acting as a “government agent” who “deliberately elicit[ed]” the incriminating information; information is only excluded if it is obtained as a result of the government’s intentional efforts. United States v. Stevens, 83 F.3d 60, 64 (2d Cir.1996) (internal quotation marks omitted). The district court denied Wilson’s objection after a hearing: “Based on Geralds’ testimony at this hearing, I find that he did not act as a ‘government agent’ when he spoke with Wilson, that he did not ‘deliberately elicit’ any statements from Wilson, and" }, { "docid": "22642415", "title": "", "text": "in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.” See also Ethical Consideration 7-18. Mr. Justice Powell, concurring. The question in this case is whether the Government deliberately elicited information from respondent in violation of the rule of Massiah v. United States, 377 U. S. 201 (1964), and Brewer v. Williams, 430 U. S. 387 (1977). I join the opinion of the Court, but write separately to state my understanding of the Court’s holding. I In Massiah v. United States, this Court held that the Government violated the Sixth Amendment when it deliberately elicited incriminating information from an indicted defendant who was entitled to assistance of counsel. 377 U. S., at 206. Government agents outfitted an informant’s automobile with radio transmitting equipment and instructed the informant to engage the defendant in conversation relating to the crimes. United States v. Massiah, 307 F. 2d 62, 72 (CA2 1962) (Hays, J., dissenting). In suppressing statements overheard during the resulting conversation, the Court emphasized that the Sixth Amendment must “ ‘apply to indirect and surreptitious interrogations as well as those conducted in the jailhouse. . . .’” 377 U. S., at 206, quoting 307 F. 2d, at 72 (Hays, J., dissenting). Similarly, in Brewer v. Williams, supra, we applied Massiah to a situation in which a police detective purposefully isolated a suspect from his lawyers and, during a long ride in a police car, elicited incriminating remarks from the defendant through skillful interrogation. We suppressed the statement because the government “deliberately and designedly set out to elicit” information from a suspect. 430 U. S., at 399; see id., at 407 (Marshall, J., concurring); id., at 412 (Powell, J., concurring). The rule of Massiah serves the salutary purpose of preventing police interference with the relationship between a suspect and his counsel once formal proceedings have been initiated. But Massiah does not prohibit the introduction of spontaneous statements that are not elicited by governmental action. Thus, the Sixth Amendment is not violated when a passive listening device collects, but does" }, { "docid": "10654847", "title": "", "text": "a fellow inmate. Wilson objected on the ground that Geralds was acting as a government agent when he elicited these admissions, and that admission of Geralds’s testimony regarding his prison conversations with Wilson therefore would violate Wilson’s Sixth Amendment right to counsel. Massiah, 377 U.S. at 205-06, 84 S.Ct. 1199 (holding that surreptitious interrogations after defendant’s indictment conducted outside the presence of counsel violated defendant’s right to counsel). A jailhouse informant is deemed to have conducted an interrogation in violation of a defendant’s Sixth Amendment Massiah rights if the informant was acting as a “government agent” who “deliberately elicit[ed]” the incriminating information; information is only excluded if it is obtained as a result of the government’s intentional efforts. United States v. Stevens, 83 F.3d 60, 64 (2d Cir.1996) (internal quotation marks omitted). The district court denied Wilson’s objection after a hearing: “Based on Geralds’ testimony at this hearing, I find that he did not act as a ‘government agent’ when he spoke with Wilson, that he did not ‘deliberately elicit’ any statements from Wilson, and that the Government made no ‘intentional effort’ ” to obtain statements from Wilson through Geralds. United States v. Wilson, 493 F.Supp.2d 514, 515 (E.D.N.Y.2007) (quoting Stevens, 83 F.3d at 64). “The standard of review for evaluating the district court’s ruling on a suppression motion is clear error as to the district court’s factual findings, viewing the evidence in the light most favorable to the government, and de novo as to questions of law.” United States v. Rodriguez, 356 F.3d 254, 257 (2d Cir.2004). The sequence of events is as follows, viewing the evidence in the light most favorable to the government: Geralds became a cooperator; in the course of cooperation, before Geralds or the prosecutors knew that Wilson and Geralds were in the same prison unit, Geralds identified Wilson as a gang member known to him, and was questioned by prosecutors about Wilson; Wilson learned that Geralds was housed nearby and initiated contact with him; Geralds and Wilson had their conversation about Wilson’s pretension to be the OG SI; Geralds reported this conversation to prosecutors," }, { "docid": "22596138", "title": "", "text": "the jury, the district court warned counsel on both sides not to pursue this issue of how and why Johnson was threatened and that the court would grant a mistrial if the issue was revisited. The district court’s response was appropriate, and we conclude that it did not abuse its discretion in denying the motion for a mistrial. D. Finally, Washington argues that the district court erred by allowing testimony from government witness James Johnson about conversations he had with Washington in St. Louis County Jail. Washington argues that Johnson was sent by the government in order to elicit incriminating information from Washington without the presence of his lawyer in violation of Washington’s Sixth Amendment right to counsel. Washington did not object to the admission of Johnson’s testimony during trial, so our review is limited. Accordingly, “we lack authority to consider the question unless ' (1) the district court committed an error, i.e., deviated from a legal rule, (2) the error is plain, i.e., clear under current law, and (3) the error affected [Washington’s] substantial rights.” United States v. White, 241 F.3d 1015, 1023 (8th Cir.2001) (citations omitted). In Kuhlmann v. Wilson, 477 U.S. 436, 459, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986), the Supreme Court stated that the chief concern behind the line of Sixth Amendment cases dealing with prison informants is that the investigatory techniques used by the police in prison might become the equivalent of direct police interrogation. The Court went on to explain what constitutes a constitutional violation: “a defendant does not make out a violation of that right simply by showing that an informant, either through prior arrangement or voluntarily, reported his incriminating statements to the police. Rather, the defendant must demonstrate that the police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks.” Id. In order for Washington to prevail on this claim, he must show: (1) that the right to counsel had attached, (2) that Johnson was indeed a government agent, and (3) that Johnson deliberately sought incriminating statements from him. Moore v. United States," }, { "docid": "15284073", "title": "", "text": "to Jackmon prior to December 30 did not render Jackmon a government agent or make his activities fairly attributable to the government. Although Jackmon was finally granted an audience with the authorities involved in the Lentz case, he was specifically advised on two separate occasions that he could only be a listening post and must not elicit information about Lentz’s kidnapping case. AUSA Mellin made no promises, expected nothing, and had no intention of using Jackmon at the retrial. Nor did the authorities take any steps to place Jackmon in closer proximity to Lentz in the hopes of obtaining more or better incriminating evidence. At best, Jackmon had been an informant for the government in prior unrelated cases and hoped to be the same for the Lentz case, but there was no showing “that such cooperation extended in any manner to the investigation” of Lentz, rendering his prior actions irrelevant to the question of whether he was acting as such with regard to Lentz. See United States v. Love, 134 F.3d 595, 604 (4th Cir.1998); cf. United States v. Birbal, 113 F.3d 342, 346 (2d Cir.1997) (rejecting argument that plea agreement, which required informant to provide the government with any information in his possession relating to criminal activity, made him a “roving” government agent for other cases). The district court also found as a factual matter that Jack-mon did not deliberately elicit incriminating statements from Lentz prior to December 30, a finding that we also cannot say was clearly erroneous based upon the record. Accordingly, we affirm the district court’s decision denying Lentz’s motion to exclude Jackmon’s testimony regarding the conversations the two men had prior to December 30 and the “plausible deniability” note that Lentz gave to Jackmon prior to that date. D. We next turn to the district court’s denial of Lentz’s motion to suppress the recorded telephone conversations between Lentz and Salvato. Lentz asserts that this evidence should have been excluded be cause it was derived from the Massiah violation and because it was a protected attorney-client communication. In the alternative, Lentz argues that the district court" }, { "docid": "10654848", "title": "", "text": "that the Government made no ‘intentional effort’ ” to obtain statements from Wilson through Geralds. United States v. Wilson, 493 F.Supp.2d 514, 515 (E.D.N.Y.2007) (quoting Stevens, 83 F.3d at 64). “The standard of review for evaluating the district court’s ruling on a suppression motion is clear error as to the district court’s factual findings, viewing the evidence in the light most favorable to the government, and de novo as to questions of law.” United States v. Rodriguez, 356 F.3d 254, 257 (2d Cir.2004). The sequence of events is as follows, viewing the evidence in the light most favorable to the government: Geralds became a cooperator; in the course of cooperation, before Geralds or the prosecutors knew that Wilson and Geralds were in the same prison unit, Geralds identified Wilson as a gang member known to him, and was questioned by prosecutors about Wilson; Wilson learned that Geralds was housed nearby and initiated contact with him; Geralds and Wilson had their conversation about Wilson’s pretension to be the OG SI; Geralds reported this conversation to prosecutors, who instructed Geralds to “not get any information from Mr. Wilson”; in further conversations, Geralds and Wilson discussed topics “from girls to music [to] cars,” and Wilson asked for help in finding a woman and in checking on the gang status of another inmate. Even assuming that Geralds deliberately elicited information from Wilson in the first conversation (about OG SI), Geralds was not a government agent at that time. More than a cooperation agreement is required to make an informant a government agent with regard to a particular defendant. United States v. Birbal, 113 F.3d 342, 346 (2d Cir.1997). An informant becomes a government agent vis-avis a defendant when the informant is “instructed by the police to get information about the particular defendant.” Id. This first prison conversation was initiated by Wilson, and Geralds was under no government influence. True, the prosecutors had showed interest in Wilson in a meeting with Geralds before this conversation — and before Wilson or the prosecutors knew that Geralds would meet Wilson in prison — but evincing interest did" }, { "docid": "23440899", "title": "", "text": "in this case, the mere fact that questions about his competency were raised in the Pappan murder case does not automatically require an inquiry into his competency in this ease. Accordingly, no error resulted from the failure to conduct an evidentiary hearing on, or make further investigation into, his competency to stand trial. III. Whether Gregory Was an Agent of the State Mr. Castro claims that Steven Gregory, the cell mate to whom he made incriminating statements, was a government informant who deliberately elicited information from him, in violation of his Fifth, Eighth, and Fourteenth Amendment rights. Mr. Castro filed a motion to suppress Gregory’s statements. At a pre-trial hearing on that motion, the trial court found that Gregory was not an agent of the State. Mr. Castro raised this argument in his direct appeal, and the Court of Criminal Appeals held as follows: Although Gregory was looking for favorable treatment from the district attorney’s office when he provided the information on appellant, there was no evidence presented of any expressed or implied relationship between Gregory and the State as relates to appellant. Therefore, we hold that Gregory was not acting as an agent for the State, and therefore the trial court did not err in failing to suppress his testimony. Castro v. State, 844 P.2d 159, 170 (Okla.Crim. App.1992) (citations omitted). “[T]he Supreme Court has held that an individual who stands indicted of a crime is denied his right to counsel when agents of the state circumvent that right by ‘deliberately elicit[ing]’ inculpatory statements from him in the absence of his counsel, absent a voluntary and knowing waiver.” Bey v. Morton, 124 F.3d 524, 528 (3d Cir.1997) (quoting Michigan v. Harvey, 494 U.S. 344, 348-49, 110 S.Ct. 1176, 1179-80, 108 L.Ed.2d 293 (1990)). Thus, the police must do more than merely listen: “the defendant must demonstrate that the police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks.” Kuhlmann v. Wilson, 477 U.S. 436, 459, 106 S.Ct. 2616, 2630, 91 L.Ed.2d 364 (1986). The Oklahoma state courts, both at trial and" }, { "docid": "22596139", "title": "", "text": "rights.” United States v. White, 241 F.3d 1015, 1023 (8th Cir.2001) (citations omitted). In Kuhlmann v. Wilson, 477 U.S. 436, 459, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986), the Supreme Court stated that the chief concern behind the line of Sixth Amendment cases dealing with prison informants is that the investigatory techniques used by the police in prison might become the equivalent of direct police interrogation. The Court went on to explain what constitutes a constitutional violation: “a defendant does not make out a violation of that right simply by showing that an informant, either through prior arrangement or voluntarily, reported his incriminating statements to the police. Rather, the defendant must demonstrate that the police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks.” Id. In order for Washington to prevail on this claim, he must show: (1) that the right to counsel had attached, (2) that Johnson was indeed a government agent, and (3) that Johnson deliberately sought incriminating statements from him. Moore v. United States, 178 F.3d 994, 999 (8th Cir.1999). The government does not dispute that Washington’s Sixth Amendment right to counsel had already attached when he made incriminating statements to Johnson. Rather, it argues that Johnson was not a government agent and did not solicit this information. Johnson was moved near Washington’s cell because he was awaiting admission into a drug rehabilitation center in Missouri. According to Johnson, he and Washington began playing chess together and having conversations about Washington’s “situation.” The record shows that Johnson’s meeting with the DEA agent occurred after these conversations with Washington. Washington has presented no evidence that Johnson was directed by the government to secure information about the case. Likewise, there is no after-the-fact evidence that the government commandeered Johnson’s services: Johnson was not paid and did not receive a reduction in his sentence for his cooperation. We conclude that Johnson was not a government agent when he had these conversations with Washington, and hence, there was no error affecting Washington’s substantial rights. V. Fortenberry argues that the court erred in enhancing" }, { "docid": "22642422", "title": "", "text": "involved deliberate efforts to extract information in the absence of counsel. In Massiah itself, the agent engineered a pretrial meeting between the accused and a turncoat codefendant. The agent instructed the latter to talk to the defendant about the crime, see United States v. Massiah, 307 F. 2d 62, 66 (CA2 1962); id., at 72 (dissenting opinion), and he bugged the meeting place so he could listen in. United States v. Ash, 413 U. S. 300 (1973), by emphasizing that Massiah involved a “ruse” and that Massiah’s purpose was to neutralize “the overreaching of the prosecution,” id., at 312, reinforced the view that deliberate elicitation entails purposeful police action. If any question could possibly have remained about the subjective nature of the Massiah inquiry, it was dispelled by Brewer v. Williams, 430 U. S. 387 (1977). There the Court closely examined testimony regarding the agent’s intentions. In the face of vigorous dissents, it found a Sixth Amendment violation only because “[t]here can be no serious doubt. . . that Detective Learning deliberately and designedly set out to elicit information from Williams,” and because in giving his “Christian burial speech,” Learning “purposely sought ... to obtain as much incriminating information as possible.” Id., at 399 (emphasis added). See also Rhode Island v. Innis, 446 U. S. 291, 300, n. 4 (1980) (reaffirming the “deliberately elicited” criterion); Kamisar, Brewer v. Williams, Massiah, and Miranda: What is “Interrogation”? When Does it Matter?, 67 Geo. L. J. 1, 42 (1978) (“The use of the term ‘deliberately elicited’ seems to be quite intentional”). The unifying theme of Massiah cases, then, is the presence of deliberate, designed, and purposeful tactics, that is, the agent’s use of an investigatory tool with the specific intent of extracting information in the absence of counsel. Thus, the Court’s “likely to induce” test fundamentally restructures Massiah. Even if the agent engages in no “overreaching,” and believes his actions to be wholly innocent and passive, evidence he comes by must be excluded if a court, with the convenient benefit of 20/20 hindsight, finds it likely that the agent’s actions would induce the" } ]

[ { "docid": "22656256", "title": "", "text": "her hospital bed after being asked by an officer whether he \"was the man” and after petitioner repeated at the direction of an officer a “few words for voice identification.” None of the witnesses could recall the words that were used. Mrs. Behrendt and the officers testified at the trial to her identification of the petitioner in the hospital room, and she also made an in-court identification of petitioner in the courtroom. Petitioner was convicted and sentenced to death. The New York Court of Appeals affirmed without opinion. 13 N. Y. 2d 1094, 196 N. E. 2d 65. Petitioner pro se sought federal ^habeas corpus in the District Court for the Southern District of New York. He claimed that among other constitutional rights allegedly denied him at his trial, the admission of Mrs. Behrendt’s identification testimony violated his rights under the Fifth, Sixth, and Fourteenth Amendments because he had been compelled to submit to the hospital room confrontation without the help of counsel and under circumstances which unfairly focused the witness’ attention on him as the man believed by the police to be the guilty person. The District Court dismissed the petition after hearing argument on an unrelated claim of an alleged invalid search and seizure. On appeal to the Court of Appeals for the Second Circuit a panel of that court initially reversed the dismissal after reaching the issue of the admissibility of Mrs. Behrendt’s identification evidence and holding it inadmissible on the ground that the hospital room identification violated petitioner’s constitutional right to the assistance of counsel. The Court of Appeals thereafter heard the case en banc, vacated the panel decision, and affirmed the District Court. 355 F. 2d 731. We granted certiorari, 384 U. S. 1000, and set the case for argument with Wade and Gilbert. We hold that Wade and Gilbert affect only those cases and all future cases which involve confrontations for identification purposes conducted in the absence of counsel after this date. The rulings of Wade and Gilbert are therefore inapplicable in the present case. We think also that on the facts of this" } ]

[ { "docid": "22016411", "title": "", "text": "not merited because petitioner failed to show that a timely objection would not have been sustained,'and because the practice of the particular judge in question was to allow any accused who so desired to be tried in civilian clothes. Estelle v. Williams does not mandate dismissal where there was no timely objection, but it is surely a factor to consider in habeas motions. Thus, in light of the overwhelming evidence of petitioner’s guilt, the petitioner’s opening of the door for the prosecutor’s rebuttal of the testimony put forth by defendant’s counsel, and the failure of petitioner to object at trial, the application for writ of habeas corpus is denied. Fundamental fairness was not violated by the challenged remark. II. The Out-of-Court Identification Petitioner contends that the trial court erred in not granting the defense motion to suppress Mr. Anderson’s testimony about the out-of-court “show-up” identification described previously. This claim is rejected, based upon the law as applied to these circumstances. In United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), the Supreme Court formulated the basic doctrines controlling the admissibility of pre-trial identification. The Wade-Gilbert doctrine holds that a post-indictment lineup constitutes a crucial stage of the accusatory process, and, that the right to counsel attaches at that point. Should the right to counsel be denied or otherwise violated, the prosecution may not use any testimony concerning that pre-trial identification, and, further, a witness may not make an in-court identification of the defendant unless the prosecution establishes an “independent source”, based on observation other than the illegal out-of-court identification. United States v. Wade, supra, 388 U.S. at 240, 87 S.Ct. 1926. However, the Wade-Gilbert right-to-counsel' rule, and the per se exclusion mandated by its violation, applies only after the commencement of “adversary judicial proceedings.” Kirby v. Illinois, 406 U.S. 682, 688, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). The Gourt has interpreted this to mean that there is no constitutional right to counsel at an identification which occurs prior to the" }, { "docid": "22663852", "title": "", "text": "Mr. Justice Brennan delivered the opinion of the Court. This case was argued with United States v. Wade, ante, p. 218, and presents the same alleged constitutional error in the admission in evidence of in-court identifications there considered. In addition, petitioner alleges con stitutional errors in the admission in evidence of testimony of some of the witnesses that they also identified him at the lineup, in the admission of handwriting exemplars taken from him after his arrest, and in the admission of out-of-court statements by King, a co-defendant, mentioning petitioner’s part in the crimes, which statements, on the co-defendant’s appeal decided with petitioner’s, were held to have been improperly admitted against the co-defendant. Finally, he alleges that his Fourth Amendment rights were violated by a police seizure of photographs of him from his locked apartment after entry without a search warrant, and the admission of testimony of witnesses that they identified him from those photographs within hours after the crime. Petitioner was convicted in the Superior Court of California of the armed robbery of the Mutual Savings and Loan Association of Alhambra and the murder of a police officer who entered during the course of the robbery. There were separate guilt and penalty stages of the trial before the same jury, which rendered a guilty verdict and imposed the death penalty. The California Supreme Court affirmed, 63 Cal. 2d 690, 408 P. 2d 365. We granted certiorari, 384 U. S. 985, and set the case for argument with Wade and with Stovall v. Denno, post, p. 293. If our holding today in Wade is applied to this case, the issue whether admission of the in-court and lineup identifications is constitutional error which requires a new trial could be resolved on this record only after further proceedings in the California courts. We must therefore first determine whether petitioner’s other contentions warrant any greater relief. I. The HandwRiting Exemplars. Petitioner was arrested in Philadelphia by an FBI agent and refused to answer questions about the Alham bra robbery without the advice of counsel. He later did answer questions of another agent about" }, { "docid": "1694660", "title": "", "text": "Therefore, for the reasons stated above, the court concludes that in the circumstances of this case, petitioner’s reprosecution did not violate the double jeopardy provision of the fifth amendment. II. IDENTIFICATION TESTIMONY: PHOTOGRAPHIC DISPLAY AND LINEUP Harry Noll, an important identification witness for the prosecution, testified that he saw petitioner at the fire and overheard him say “Let the son-of-a-bitch burn.” Petitioner claims that it was error to admit this identification testimony for the following reasons: (1) identifications from the photographic display and at the lineup were made without the presence of counsel, and hence violated his sixth and fourteenth amendment rights; and (2) the lineup was so unduly suggestive and conducive to irreparable mistaken identification that he was denied due process of law. Noll first identified petitioner by selecting his picture from a photographic display, consisting of several pictures of different persons, shown him by Officer Regan of the Pennsylvania State Police. The exact date on which Noll made this photo identification was not established, but it is clear that it occurred during the' police investigation of the fire and before petitioner’s arrest. The fire occurred on October 11, 1966. On January 23, 1967, petitioner was arrested. On January 31, 1967, Noll identified petitioner at a lineup. A preliminary hearing was held on February 1, 1967, and petitioner was indicted on April 24, 1967. The sixth amendment does not guarantee an accused the right to have counsel present when the government conducts a photographic display, containing a picture of the accused, for the purpose of allowing a witness to attempt an identification of the offender. United States v. Ash, 1973, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619. Thus, Noll’s initial identification of petitioner from pictures exhibited to him by Officer Regan did not violate any constitutional guarantee. Noll subsequently identified petitioner at a post-arrest, pre-indictment lineup without notice to and in the absence of petitioner’s counsel. In United States v. Wade, 1967, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, the Supreme Court held that a post-indictment lineup was a critical prosecutive stage at which an" }, { "docid": "9681780", "title": "", "text": "were arrested by police during the mid-afternoon of February 22, 1968, several hours after the robbery occurred. Mr. Doyle had been contacted by the police and was told that there were some suspects they would like him to see. The police positioned Doyle in an automobile outside the police station, where he witnessed petitioner’s two co-defendants exiting from a squadrol. Later that evening, Mr. Doyle returned to the police station where he witnessed a show-up of six Negro persons, three men and three women, with petitioner and the two women whom Doyle had viewed earlier in the middle of the group. At this show-up, Doyle identified petitioner and his two co-defendants as the perpetrators of the robbery. No counsel was present at the time of this identification, nor at bond court where Doyle again witnessed the defendants. The petitioner made a motion at his trial to suppress all identification testimony, both the out-of-court and any in-court identification on the basis of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), three decisions of the United States Supreme Court which indicate that Court’s concern with the manner in which pretrial identifications are frequently made. These cases establish that a suspect has a Sixth Amendment right to counsel at a pretrial confrontation subsequent to June 12, 1967, and a Fourteenth Amendment right to be free from pretrial identification so unnecessarily suggestive and susceptible to mistaken identification as to deny due process of law. These cases further establish that, even if the State violates a suspect’s rights in a pretrial confrontation, in-court identifications may nevertheless be made by witnesses who viewed the suspects at a tainted confrontation, but only if the State establishes that the in-court identification proceeded from a source independent of the prior illegal confrontation. Gilbert v. California, 388 U.S. at 272, 87 S.Ct. 1951, 18 L.Ed.2d 1178; United States v. Wade, 388 U.S. at 240-241, 87 S.Ct. 1926, 18" }, { "docid": "12597865", "title": "", "text": "case and to avoid a repetitive habeas application, we have given consideration to them. About twelve hours after his arrest, the petitioner confessed to the military authorities. He had been repeatedly warned of his constitutional rights but the record does not show a waiver of counsel. The argument is that the extra judicial confession was improperly received in evidence in violation of the rules stated in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. In Johnson v. New Jersey, 384 U.S. 719, 734, 86 S.Ct. 1772, 1781, 16 L.Ed.2d 882, the Supreme Court held' that the Escobedo decision “is available only to persons whose trials began after June 22, 1964,” and that the guidelines in Miranda are “available only to persons whose trials had not begun as of June 13, 1966.” Here the entire military proceedings were completed before either the Escobedo or Miranda decisions. The petitioner complains that he was subjected to a line-up at which he was identified by the victims of his crimes in violation of Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, and United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149. Stovall v. Denno, 388 U.S. 293, 300, 87 S.Ct. 1967, 18 L.Ed.2d 1199, says that these decisions operate prospectively. The line-up was fairly conducted and adequately protected the petitioner’s due process rights. The procedure followed for the admission and consideration of the confession is said to violate the rules laid down in Jackson v. Denno, 378 U.S. 368, 394, 84 S.Ct. 1774, 12 L.Ed.2d 908. There the Supreme Court said that the voluntariness of a confession must be determined by a body other than the one trying the question of guilt or innocence. At the court-martial the law officer gave the defendant an opportunity, out of the hearing of the members of the board, to present evidence as to voluntariness. The defense put on no evidence and only pointed out the lapse of twelve hours from the arrest" }, { "docid": "12597866", "title": "", "text": "was identified by the victims of his crimes in violation of Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, and United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149. Stovall v. Denno, 388 U.S. 293, 300, 87 S.Ct. 1967, 18 L.Ed.2d 1199, says that these decisions operate prospectively. The line-up was fairly conducted and adequately protected the petitioner’s due process rights. The procedure followed for the admission and consideration of the confession is said to violate the rules laid down in Jackson v. Denno, 378 U.S. 368, 394, 84 S.Ct. 1774, 12 L.Ed.2d 908. There the Supreme Court said that the voluntariness of a confession must be determined by a body other than the one trying the question of guilt or innocence. At the court-martial the law officer gave the defendant an opportunity, out of the hearing of the members of the board, to present evidence as to voluntariness. The defense put on no evidence and only pointed out the lapse of twelve hours from the arrest to the confession. The law officer then told the court-martial that his ruling was “final only on the question of admissibility” and “does not conclusively establish” voluntariness. This satisfied paragraph 140 of the Manual for Courts-Martial (1951) and the requirements of Jackson v. Denno if that decision is to given retroactive effect. Heilman v. United States, 7 Cir., 406 F.2d 1011. Finally, counsel for petitioner argues that the cumulative effect of all the claimed errors denied the petitioner a fair trial consonant with the requirements of due process. We are not persuaded. Consideration of the points one by one or in their totality, produces the same result. The petitioner had a fair trial. Affirmed." }, { "docid": "8867450", "title": "", "text": "101 S.Ct. 764, 66 L.Ed.2d 722 (1981). The District Court, however, ultimately rejected petitioner’s constitutional claims and denied the writ of habeas corpus. On appeal, petitioner contends that his right to counsel under the Fifth, Sixth, and Fourteenth Amendments was violated, and that his Sixth and Fourteenth Amendment rights were violated by the admission into evidence of certain exhibits and by the instructions given to the jury on the elements of the offense of first-degree manslaughter. II. A. Petitioner’s initial constitutional claim rests on the accepted principle that an accused has a Fifth and Fourteenth Amendment right to have counsel present during custodial interrogation. See Miranda v. Arizona, supra. It also has a basis in the Sixth Amendment’s guarantee of the right to legal representation at the commencement of adversary judicial criminal proceedings. See Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). The District Court held that petitioner’s Sixth Amendment right to counsel was not violated because adversary judicial proceedings had not commenced. Because we hold that the admission at trial of petitioner’s statements violated the Fifth and Fourteenth Amendments as construed in Edwards v. Arizona, supra, we need not decide the Sixth Amendment issue. Edwards was decided after the District Court’s opinion was filed. There, the defendant was the object of an arrest warrant charging him with robbery, burglary, and first-degree murder. Upon being arrested, he was taken to the police station and informed of his Miranda rights. Edwards stated he understood his rights and was willing to be questioned. During interrogation, defendant sought to “make a deal,” but stated that he wanted an attorney before making a deal. At that point, the questioning ceased, and Edwards was returned to his cell. The next morning, two detectives showed up at the jail, wanting to see defendant. When told that the detectives were there, Edwards replied that he did not want to talk to anyone. The jail" }, { "docid": "16274973", "title": "", "text": "that the manner in which petitioner was arrested in any way deprived him of a fair trial upon his not guilty plea. Secondly petitioner contends that his premises were illegally searched and that certain clothing was illegally taken therefrom. Conceding, arguendo, that this is so, it is clear from the record, and indeed from petitioner’s own testimony before this Court that nothing seized during the search of his premises was used against him during his trial. There was no mention made during his trial either before the jury or otherwise of the things allegedly seized in petitioner’s home. And furthermore, since this Court has concluded that the evidence clearly shows that petitioner was positively identified by the victim and placed under arrest completely independently of the articles allegedly seized, the search and seizure, even if illegally conducted, in no way prejudiced petitioner or denied him in any way his right to a fair trial. He was arrested, charged, tried and convicted not on the basis of any evidence seized from his home but rather on the positive identification of witnesses without any reference whatsoever to the fruits of the search. Petitioner next argues that his constitutional rights were violated when he was forced to re-enact the crime, and to speak certain words which he alleges constituted self-incrimination. But it must be remembered that the evidence shows that petitioner was positively identified by Mr. James both from photographs and from personal confrontation before petitioner was made to re-enact the crime and without any reference thereto. In .other words, the identification of petitioner made by the witnesses, Mr. James, and the identification upon which petitioner was convicted was in no way “tainted” by any unconstitutional lineup procedure, and thus, even under the teachings of the recent cases of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (June 12, 1967), and Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (June 12, 1967), which, incidentally, according to Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (June 12, 1967), do" }, { "docid": "9681779", "title": "", "text": "and 4) the trial court committed reversible error by admitting into evidence proof of another crime. Petitioner has presented these specific allegations to the Illinois Supreme Court in a direct appeal of his conviction. Because that Court believed these contentions to have no merit, People v. Harris, 46 Ill.2d 395, 263 N.E.2d 35 (1970), petitioner will be deemed to have exhausted his state remedies as required by 28 U.S.C. § 2254. Kemp v. Pate, 359 F.2d 749 (7th Cir. 1966). We will therefore consider petitioner’s contentions on their merits. I The petitioner’s first contention concerns an in-court identification of himself by a Mr. John Doyle, the pharmacist of the drug store which petitioner was charged with robbing. He asserts that the trial court used a constitutionally improper evidentiary standard in determining that Doyle’s in-court identification of petitioner was based upon observations independent of, and not influenced by, a pretrial confrontation which the trial court did hold to be vio-lative of the petitioner’s constitutional rights. The petitioner and his co-defendants in the criminal trial, two women, were arrested by police during the mid-afternoon of February 22, 1968, several hours after the robbery occurred. Mr. Doyle had been contacted by the police and was told that there were some suspects they would like him to see. The police positioned Doyle in an automobile outside the police station, where he witnessed petitioner’s two co-defendants exiting from a squadrol. Later that evening, Mr. Doyle returned to the police station where he witnessed a show-up of six Negro persons, three men and three women, with petitioner and the two women whom Doyle had viewed earlier in the middle of the group. At this show-up, Doyle identified petitioner and his two co-defendants as the perpetrators of the robbery. No counsel was present at the time of this identification, nor at bond court where Doyle again witnessed the defendants. The petitioner made a motion at his trial to suppress all identification testimony, both the out-of-court and any in-court identification on the basis of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967);" }, { "docid": "4920719", "title": "", "text": "five issues which I consolidate into three for discussion. 1. Whether the identification of petitioner’s voice violated his constitutional rights to counsel and due process? 2. Whether petitioner had an constitutional right to represent himself pro se? 3. Whether petitioner received ineffective assistance of counsel? IDENTIFICATION OF PETITIONER’S VOICE A. Wade-Gilbert Problem The victim’s mother who had spoken with the kidnapper on the telephone, was subpoenaed to appear in court for a preliminary hearing concerning petitioner. Petitioner’s name was on the subpoena. When the mother arrived, one of the investigating officers greeted her in the hallway and told her that they had the man who was arrested with her daughter. He asked her to sit up front in the courtroom and to listen to the voices to determine if she recognized the kidnapper’s voice. The mother’s identification of the petitioner’s voice at his trial was based solely upon her observations and perceptions at the preliminary hearing. This identification proceeding took place without petitioner’s knowledge and without presence of counsel. The comparison was made when the petitioner’s case was called and he was speaking directly to the court. From this observation, the mother identified the petitioner as the kidnapper although she later stated that she could have picked his voice out of several others if asked to do so. This procedure was requested by defense counsel but denied by the court. Houston contends that under the rationale of the Wade-Gilbert Rule, he was entitled to presence of counsel and notice that an identification procedure was taking place at the preliminary hearing. His reliance on Wade and Gilbert is misplaced. The Supreme Court in U. S. v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, (1967) held that: “. . .a post-indictment pretrial lineup at which the accused is exhibited to identifying witnesses is a critical stage of the criminal prosecution; that police conduct of such a lineup without notice to and in the absence of his counsel denies the accused his Sixth Amendment right to counsel and calls in question the admissibility at trial of the in-court identifications of" }, { "docid": "944800", "title": "", "text": "Justice Coving-, ton denied this motion on October 3, 1990, and the Appellate Division denied petitioner’s application for leave to appeal on January 8, 1991. (See id. at ¶ 13, 15-16 & Exhs. 13-14, 16-17.) Petitioner filed his current habeas petition in 1991, after the last denial of relief by the state courts. ANALYSIS A. The Exhaustion Issue Briefly Revisited In holding that two of petitioner’s claims were unexhausted, the District Court concluded that petitioner had failed to identify either one to the state appellate courts as being of constitutional magnitude. One of these claims was that the trial court had improperly denied petitioner a hearing on his pre-trial Wade motion. It is true that petitioner did not explicitly argue that the introduction of eyewitness identification testimony violated his right to due process under United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). Nonetheless, in its responding brief the State plainly anticipated that the Appellate Division might look at this argument as, at least in part, a claim of unduly suggestive identification procedures; thus, it explicitly addressed the question as a constitutional claim. (See Respondent’s Brief at 24) (referring to “alleged suggestivity of the near-the-scene identification” of petitioner). This analysis in the State’s own briefing is generally considered sufficient to satisfy the exhaustion requirement of the habeas statute, see, e.g., Daye v. Attorney General, 696 F.2d 186, 192-93 n. 5 (2d Cir. 1982) (citing cases) (en banc), cert. denied, 464 U.S. 1048, 104 S.Ct. 723, 79 L.Ed.2d 184 (1984), and I therefore briefly address below the merits of petitioner’s claim insofar as it may be construed to complain that his identification at trial was the product of unduly suggestive pre-trial procedures. See pp. 190-91, infra. B. Petitioner’s Attack on the Trial Court’s Evidentiary Rulings (Claims 1 and 2) Petitioner’s first and second claims are that the trial court twice unfairly foreclosed him from offering evidence that would have undercut the credibility of both Mr. White and Ms. Escobar. The first instance involved a ruling by the trial court precluding defense counsel from asking Ms. Escobar" }, { "docid": "2741412", "title": "", "text": "973, 986 (2d Cir.1972)). However, petitioner's argument is flawed in several respects. First, his complaint concerning Traub's performance was obviously without merit and did not require a formal inquiry. In requesting reassignment, petitioner simply repeated the same complaints he raised against Greenberg. Instead of listing any substantive complaints, he simply took a copy of the form he filed in September and, where the name \"Greenberg\" appeared, substituted \"Jeffrey Traub.\" This suggested that the motion was without substance and was no more than a dilatory tactic. Moreover, a short inquiry was conducted regarding the only substantive complaint raised by petitioner, Traub's failure to request a Wade hearing. The trial court concluded that the complaint was frivolous as it certainly was. There was no pre-trial identification procedure that might have required a hearing under United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). See Solomon v. Smith, 645 F.2d 1179, 1185-87 (2d Cir. 1981). In fact, after Traub explained the background of his decision not to request the hearing, the court commended him for not making “spurious and specious motions.” Thus, petitioner never voiced a “seemingly substantial complaint about counsel” which would have required a formal inquiry. Id. Second, in this case, even if a formal inquiry was required, the failure to conduct the inquiry would not constitute grounds for reversal of petitioner’s conviction. Petitioner could not have demonstrated “good cause” or even have suggested “legitimate reasons” for substitution. He complained that Traub “failed to visit [him] at [his] place of confinement; ha[d] submitted no motions on [his] behalf; ... and ha[d] not conducted any fact-finding to prepare [his] defense.” He later repeated that Traub “hadn’t done anything to prepare my defense.” (Tr. 9) It is clear from the record however that petitioner could not have established these claims. Traub provided petitioner with able representation, making numerous motions and court appearances in conducting his defense. As the trial judge stated, it is apparent “from examination of the court file and ... from Mr. Traub’s previous conduct that he had done everything in his power on [petitioner’s] behalf.”" }, { "docid": "9681781", "title": "", "text": "Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), three decisions of the United States Supreme Court which indicate that Court’s concern with the manner in which pretrial identifications are frequently made. These cases establish that a suspect has a Sixth Amendment right to counsel at a pretrial confrontation subsequent to June 12, 1967, and a Fourteenth Amendment right to be free from pretrial identification so unnecessarily suggestive and susceptible to mistaken identification as to deny due process of law. These cases further establish that, even if the State violates a suspect’s rights in a pretrial confrontation, in-court identifications may nevertheless be made by witnesses who viewed the suspects at a tainted confrontation, but only if the State establishes that the in-court identification proceeded from a source independent of the prior illegal confrontation. Gilbert v. California, 388 U.S. at 272, 87 S.Ct. 1951, 18 L.Ed.2d 1178; United States v. Wade, 388 U.S. at 240-241, 87 S.Ct. 1926, 18 L.Ed.2d 1149; see also, Clemons v. United States, 133 U.S.App.D.C. 27, 34, 408 F.2d 1230, 1237 (en banc 1968), cert. denied 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969). The trial court, prior to admitting Doyle’s in-court identification testimony, held a hearing on petitioner’s motion to suppress during the course of Doyle’s testimony, but out of the presence of the jury (Tr. pp. 270-332) and suppressed the identifications made at the line-up, apparently concluding that the petitioner’s constitutional rights under Wade had been violated (Tr. p. 325). In considering the motion to suppress any in-court identifications, the trial court made several statements crucial to the issues herein. In response to a question by defense counsel as to whether the defendant had the burden of establishing that the improper line-up did in fact taint the in-eourt identification, the court responded, “It is the burden of the defense to do that.” (Tr. p. 154). When counsel for both sides suggested at the hearing that the burden of proof was upon the other, the court stated," }, { "docid": "3268907", "title": "", "text": "unless he demonstrates that he was in fact precluded from utilizing [the state procedure] by an unconscionable breakdown in the [state’s] review process.” Shaw, 654 F.Supp. at 864. Here there was no “unconscionable breakdown” in the process provided by N.Y.Crim.Proc.Law § 710.10 et seq. (McKinney 1984 & Supp.1988). Petitioner availed himself of that process, and his motion to suppress was denied in a written opinion dated December 20, 1982 (reproduced in State’s Br. at 11-16) which leaves no doubt that the trial court “conducted a ‘reasoned method of inquiry into relevant questions of fact and law,’ ” Shaw, 654 F.Supp. at 864. Therefore, to the extent that it is based on the Fourth Amendment, petitioner’s second claim must be denied, with prejudice. 2) To the extent that petitioner’s second claim rests on alleged violations of the Fifth Amendment, it must be rejected because it is procedurally barred. At best, petitioner only has a Fifth Amendment claim as to the statements he made on the morning of September 18, 1981, but not as to the blood sample or the lineup identification. The Fifth Amendment is only concerned with self-incrimination by acts of a testimonial or communicative nature. Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826, 1830, 16 L.Ed.2d 908 (1966) (blood sample admissible because it “was neither petitioner’s testimony nor evidence relating to some communicative act or writing” by defendant (id., 384 U.S. at 765, 86 S.Ct. at 1833); United States v. Wade, 388 U.S. 218, 221-23, 87 S.Ct. 1926, 1929-30, 18 L.Ed.2d 1149 (1967) (compelled participation in lineup not testimonial and admission of identification therefore not violative of Fifth Amendment). Moreover, to the extent that federal habeas courts have even considered the constitutionality of delaying arraignment of state defendants, they have only done so as part of a Fifth Amendment based analysis of the voluntariness of confessions. Thus, delay in arraigning a state defendant is not, in itself, a constitutional violation, but is at most a factor to be weighed in determining whether or not, viewed in the totality of the circumstances, an incriminating statement was the product" }, { "docid": "15425555", "title": "", "text": "Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Second, the defendant must show that such performance prejudiced his defense. Id. To demonstrate prejudice, the defendant must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. 2. The individual claims A. Failure to object to the in-court identification of petitioner by Barbara Davis. Petitioner first claims that his trial counsel was ineffective for failing to object to the in-court identification of him as the perpetrator by Barbara Davis. Petitioner. contends that trial counsel should have objected to this in-court identification, because Ms. Davis failed to identify petitioner at a police lineup-conducted subsequent to his arrest. Petitioner also claims that counsel should have objected to the in-court identification, because it was brought about by the subornation of perjury. A defendant has the initial burden of proving that the identification procedure was impermissibly suggestive. It is only after a defendant meets this burden that the burden then shifts to the prosecutor to prove that the identification was reliable independent of the suggestive procedure. English v. Cody, 241 F.3d 1279, 1282-1283 (10th Cir.2001)(citing to United States v. Wade, 388 U.S. 218, 240, n. 31, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967)). If a defendant fails to show that the identification procedures are impermissibly suggestive, or if the totality of the circumstances indicate that the identification is otherwise reliable, no due-process violation has occurred; so long as there is not a substantial misidentifieation, it is for the jury or factfinder to determine the ultimate weight to be 'given to the identification. United States v. Hill, 967 F.2d 226, 230 (6th Cir.1992). Petitioner contends that the in-court identification of him by Davis was somehow tainted because she was unable to identify him either at a pre-trial line-up or at the preliminary examination. The fact that a witness cannot identify an accused at a pre-trial lineup procedure is not a reason to exclude his or her testimony identifying the accused in court; the failure to identify" }, { "docid": "11142895", "title": "", "text": "more than a farce and a mockery of justice. Root v. Cunningham, 344 F.2d 1 (4th Cir. 1965) cert. denied, 382 U.S. 866, 86 S.Ct. 135, 15 L.Ed.2d 104; Lawson v. Peyton, 276 F.Supp. 278 (W.D.Va.1967). The record discloses that petitioner was represented by experienced, competent and able counsel, and this court finds that he was not denied effective representation. T4, 5] Petitioner claims that the circumstances surrounding his pre-trial lineup at the supermarket were prejudicial and violative of his constitutional rights. The evidence in the record is in conflict, but petitioner testified that he was handcuffed during the lineup at the supermarket. He apparently contends that the illegality of the lineup tainted his subsequent in-eourt identification. Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). That contention is without merit for three reasons. First, petitioner pleaded guilty and thus identified himself. Bloombaum v. United States, 211 F.2d 944 (4th Cir. 1954). Second, the decision in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), applies only to confrontations occurring after June 12, 1967. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). Third, the question of admissibility of the in-court identification does not survive the guilty plea. See United States v. Ford, 363 F.2d 375 (4th Cir. 1966); Kellam v. Cox, 309 F.Supp. 1075 (W.D.Va.1970). Petitioner alleges as his third ground that he was coerced into entering a guilty plea. He testified at the state habeas corpus hearing that he was threatened and beaten by the police and state hospital officials during his detention before trial. The record discloses that petitioner was interrogated on numerous occasions after his arrest. It also shows that he was a troublesome and rowdy prisoner and on one occasion had to be subdued by force. He tried to escape, and hacksaw blades were found in his possession. No more force was used on Kost than was necessary to keep a minimum of order in the jail. The alleged coercive conduct occurred five months before trial. There is evidence showing that he" }, { "docid": "10750407", "title": "", "text": "further investigation should ensue. This was not a custodial interrogation. Also, under the recent case of Harris v. New York, 400 U.S.-, 91 S.Ct. 643, 28 L.Ed.2d 1 (Feb. 24, 1971) any statement made by defendant that is inadmissible because of lack of procedural safeguards required by Miranda may be used for impeachment purposes if the trustworthiness of the statements satisfies legal standards. The answer given by petitioner in this case was only used for impeachment purposes after petitioner had testified in his own behalf. Petitioner originally complained of lack of counsel at the time he was placed in the lineup and this alleged error was submitted to the state courts. However, since the lineup identification procedures announced in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), are not retroactive, petitioner also contends the lineup procedures violated the “totality of circumstances concept” discussed in Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969). Petitioner alleges he was subjected to two lineup procedures, both of which were held within a few minutes of each other. Two other individuals were in the lineup with the petitioner. The victim when first viewing the lineup, at a distance of 30 feet, did not identify the petitioner. After a short wait in the hall, the victim then viewed the lineup a few minutes later at a distance of three to four feet and identified the petitioner as the robber and also made identification at the trial. Petitioner also complains about the identification of the pistol used in the robbery. These are matters going to the weight and credibility of a witness and should be addressed to the trier of the facts. There was nothing in the lineup “so unnecessarily suggestive and conducive to irreparable mistaken identification” as to constitute a denial of due process. Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967). The lineup of three persons was held within a few hours of" }, { "docid": "1694661", "title": "", "text": "police investigation of the fire and before petitioner’s arrest. The fire occurred on October 11, 1966. On January 23, 1967, petitioner was arrested. On January 31, 1967, Noll identified petitioner at a lineup. A preliminary hearing was held on February 1, 1967, and petitioner was indicted on April 24, 1967. The sixth amendment does not guarantee an accused the right to have counsel present when the government conducts a photographic display, containing a picture of the accused, for the purpose of allowing a witness to attempt an identification of the offender. United States v. Ash, 1973, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619. Thus, Noll’s initial identification of petitioner from pictures exhibited to him by Officer Regan did not violate any constitutional guarantee. Noll subsequently identified petitioner at a post-arrest, pre-indictment lineup without notice to and in the absence of petitioner’s counsel. In United States v. Wade, 1967, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, the Supreme Court held that a post-indictment lineup was a critical prosecutive stage at which an accused was entitled to the presence of counsel. At the same time, the Court held in Gilbert v. California, 1967, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, that the admission of in-court identifications without first determining that they were not tainted by the illegal lineup but were of independent origin was constitutional error. In Stovall v. Denno, 1967, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, the Court held that the constitutional rules established in Wade and Gilbert were not retroactive and had prospective application only — i. e., established a right to counsel at post-indictment lineups for an accused in all instances occurring after June 12, 1967, the date Wade, Gilbert and Stovall were decided. Since petitioner’s lineup took place on January 31, 1967, the right to counsel established in Wade has no application in this case. Stovall v. Denno, 388 U.S. at 296-301, 87 S.Ct. 1967; Coleman v. Alabama, 1970, 399 U.S. 1, 3, 90 S.Ct. 1999, 26 L.Ed.2d 387; Foster v. California, 1969, 394 U.S. 440, 442, 89 S.Ct." }, { "docid": "890666", "title": "", "text": "who had identified him at the preliminary examination. To hold that this alone was sufficient to establish a denial of due process would be tantamount to giving retroactive effect to the rule of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), contrary to the holding of Stovall v. Denno, 388 U.S. 293, 297-301, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), The additional burden was upon petitioner to show that “the confrontation in this case was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law.” Ibid, at 301-302, 87 S.Ct. at 1972. See also Foster v. California, 394 U.S. 440, 442, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969). He failed to carry that burden. The record shows only that one of the witnesses who identified petitioner at trial also identified him at the preliminary hearing. This witness’ trial identification was positive. Moreover, two other witnesses who had not seen petitioner at the preliminary examination also identified petitioner at trial. Petitioner claims that statements introduced at trial were taken without the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The point does not appear to have been submitted to the Montana courts. In any event, if error occurred it was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 37 S.Ct. 824, 17 L.Ed.2d 705 (1967). The only prejudice petitioner asserts is that his admission established his presence in the town in which the burglary occurred. The independent evidence of this fact appears to us to be overwhelming — indeed, petitioner himself testified to it at trial. Also harmless beyond doubt was any technical violation of petitioner’s Fourth Amendment rights that may have occurred when a police officer moved the luggage of petitioner and his wife from their motel room to their automobile. The evidence found in the luggage and introduced against petitioner was not the fruit of this “seizure,” but rather of a" }, { "docid": "12961090", "title": "", "text": "[Tr. p. 18]. Contention No. 9 was not presented to the state courts. Petitioner has not exhausted his State remedies, but the contention is easily disposed of. It consists of claims that petitioner did not receive copies of law material mailed to him and alleged to be needed in this habeas corpus proceeding below, No. 3746. An inspection as to what was alleged to be missing shows it to be a copy of pages 34, 35 and 36 from the case of Rabinowitz v. United States, 5 Cir., 366 F.2d 34. The ease involves questions of jury qualifications and has no bearing on petitioner’s claim below or in the cfrcuit. The contention is frivolous. We proceed to consider petitioner’s first seven contentions in detail. I. We assume, for the purpose of decision, that the police refused to honor petitioner’s request for counsel after his arrest. He was advised of his right to counsel at his arraignment the following day, and stated he intended to employ counsel. Petitioner does not contend he ever made any statements or confessions or that any were ever used against him in his trial. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, was decided June 13, 1966, after petitioner’s trial that resulted in a conviction on April 8, 1966. Miranda does not apply retroactively. Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). The refusal to hon- or petitioner’s request for counsel at his arrest, standing alone, is not a ground for relief. Petitioner’s contentions are tied in with an out-of-court identification by photo, and an out-of-court line-up. These matters will be considered later herein. Suffice it to say that United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) apply only to those cases and future eases after the date of those decisions. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). Appellant was convicted in 1966. Petitioner must then rely not on the" } ]

[ { "docid": "15300710", "title": "", "text": "OPINION. Arnold, Judge: The fundamental question here is whether Quartz had excessive profits in the taxable year. The answer depends upon whether all or only a part of the $139,098.82 paid by Quartz for execu tive, managerial, engineering, and expediting services should be considered as an element of cost in carrying out its war contracts. The parties are agreed that the contracts are renegotiable and that the amount of Quartz’s net renegotiable profits for 1943, before compensation for the above services, is $175,067.61. Petitioner contends that the compensation paid its officers, and John H. Cashman for expediting services, was reasonable and should be taken into account as part of the cost of fulfilling its contracts. It is contended that the officers had no fixed salaries other than the arrangement to pay them compensation based upon a percentage of gross revenue. It is further contended that the amounts paid in the taxable year covered services rendered in the second and third years of operation and that the sales of the latter years should be considered in determining the reasonableness of compensation paid in the taxable year. Eespondent contends that Quartz had excessive profits for the taxable year of at least $60,000; that a reasonable compensation for managerial and executive salaries is $35,000; that Quartz’s net profit subject to renegotiation, after allowing $35,000 for managerial and executive salaries, is $140,067.61; that consideration of all the pertinent factors in connection with petitioner’s operations discloses the existence of excessive profits; and that sales for subsequent years are immaterial in determining whether Quartz realized excessive profits in the taxable year. We have found as a fact that Quartz realized excessive profits on its war contracts for the taxable year. We have further found that the amount of such excessive profits was $60,000. We base our findings upon a careful examination and a full consideration of the evidence offered by the parties. It is unnecessary to review all the facts that we considered in reaching our conclusion. We shall, however, discuss in the succeeding paragraphs some of the facts and testimony which convinced us that Quartz" } ]

[ { "docid": "7823595", "title": "", "text": "and difficult business. In its supersonic airplane activities and its rocket engine, missile, and atomic work it was exploring new and advanced fields. In all of its manufacturing activities, including its guidance systems, its production operations necessitated precision work with a flexible manufacturing operation that would allow changes for application of new and improved techniques. Ordinary mass-production methods could not be employed to petitioner’s type of manufacturing activities. Petitioner complied with the Government policy with respect to subcontracting. It subcontracted about 25 percent of its airplane work. Here the subfactor “rate of turnover” is mentioned. We assume this means inventory turnover. La Grand, Industrial Supply Co. v. United States, 22 T.C. 1023. Consideration of this factor is of limited usefulness because of the nature of petitioner’s operation. If we use the gross value of its inventories it had a relatively low inventory turnover: a little more than twice annually. But this does not mean much as petitioner received progress payments equal to about 70 percent of incurred costs and title to inventory items passed to the Government with such progress payments. This petitioner has always had to rely on Government contracts for its very existence. It had practically no business with private customers. There is some merit to the observation made by respondent that in a sense the petitioner was virtually in partnership with the Government during all of its business life. On giving consideration to the entire record and all of the facts in the light of the statutory factors, we feel that petitioner’s profits on its renegotiable business for each of the years in question were to some extent excessive. It is our conclusion that petitioner realized excessive profits from its renegotiable contracts of $4 million in 1953 and $12,500,000 in 1954. Reviewed by the Court. Decisions will Toe entered accordingly. In 1941 petitioner changed its accounting period from a calendar year to a fiscal year beginning October 1 and ending September 30. References hereinafter to petitioner’s accounting periods will relate to such fiscal years, unless otherwise indicated. Before any taxes on income and before any adjustment on" }, { "docid": "10383898", "title": "", "text": "and obtainable by it only at possibly excessive prices and upon the payment of possibly unreasonable profits. Nor does the suggestion that such products were also sold for civilian production under price ceilings, even if that be the fact, meet the issue. Whether the costs of war material became excessive because of the volume of production created by the war demand is no more answered by the application of civilian price ceilings than is the similar proposition that a war contractor’s profits would not be unreasonable if its quantity prices to the Government were no higher than the peacetime level. See “Joint Statement of the War, Navy, and Treasury Departments and the Maritime Commission, Purposes, Principles, Policies, and Interpretations,” etc. (March 31,1943), p. 7; see Stein Brothers, supra, p. 886; Ring Construction Corporation, supra, 1087; Western Precipitation Corporation, 9 T. C. 877. And, as we have already had occasion to observe, the legislative history, far from supporting petitioner’s position, indicates that Congress proposed to attack the entire problem of costs directly related to the price charged by a prime contractor for products needed by the war-making Departments for the prosecution of the war. Petitioner’s contention is essentially that advanced by the machine tool manufacturers and rejected by the ultimate legislative conclusion. We are satisfied that petitioner’s sales to civilian holders of prime war contracts were subcontracts subject to renegotiation under the statute. As the final issue is framed, it also presents exclusively a question of law. Petitioner’s contention is thus stated in its brief: Petitioner now argues alternatively that if its orders from private corporations are renegotiable at all, orders for complete machines are renegotiable only to the extent that the machines were used on renegotiable business. [Emphasis added.] This aspect of the proceeding has two phases, but only one is in controversy. The parties have agreed as to the relationship between the renegotiable and nonrenegotiable business engaged in by petitioner’s customers at the time it made the sales, and respondents now concede that an allocation of petitioner’s profits may be made accordingly, thus eliminating a percentage of its profits" }, { "docid": "14229617", "title": "", "text": "legislative history shows that in the Congressional debates it was recognized that renegotiation would be made of existing contracts, and of completed contracts, and the provisions of section 403 (c) were enacted over express objections thereto because the statute was intended to be a repricing statute and its purpose was to reduce to reasonable amounts all 'ultimate costs to the Government for materials purchased in pursuance of the war effort. The same general questions were presented in National Electric Welding Machines Co., supra, which involved the renegotiation of profits realized in 1942 under contracts with Defense Plant Corporation created by E. F. C., which was not a “Department” covered by the act originally. It was not until July 1, 1943, that, by amendment, the Eenegotiation Act included among renegotiable contracts, those made with the Defense Plant Corporation. We held that the July 1, 1943, amendment had retroactive force to the date of the original act, and that, so applied, the retroactive provisions were not unconstitutional. We held, also, that the fact that the contracts were paid in full before July 1, 1943, presented a distinction in fact, but no difference in principle from our holdings in Stein Brothers Manufacturing Co., supra; and that the petitioner was a “subcontractor,” since the machines it sold were used primarily to produce products with a “war-end use.” The rationale of the National Electric Welding Machines Go. case controls certain questions raised here. See, also, Lichter v. United States, supra, pp. 788, 789. With respect to the alleged difficulties of tracing the semif abricated product into the materials of which they became a component part, it was the intent and the policy of the Congress that the detailed administration of the act should be delegated to the “Departments”; that the act should include the lower tier subcontractors who provided materials for other subcontractors; and that renegotiation involved making allocations between nonrenegotiable and renegotiable business because standard articles, customarily and ordinarily made for civilian use were being purchased in very large quantities for Government use. Objections to the broad definition of “subcontract” included those about which" }, { "docid": "10991787", "title": "", "text": "of “any property held or acquired by the trustee hereunder or the proceeds thereof.” For the calendar year 1952, Temco computed 10 percent of its un-renegotiated net profit to be $481,709, and 12 percent of the participating employees’ aggregate salaries to be $367,577. Accordingly, Temco made a contribution to the profit-sharing plan in the amount of $367,577 and charged such sum as a cost to renegotiable contracts, there having been no profits on nonrenegotiable business for that year. For the calendar year 1953, Temco computed 15 percent of participating employees’ salaries to be $720,101, and 10 percent of its unrenegotiated net profit to be $937,854. Accordingly, the smaller amount, $720,101, was contributed to the plan for the year 1953, and, there again being no profits on nonrenegotiable business for the year, it was charged in full as a cost of renegotiable business. Temco’s computation of the 10-percent profit limitation for the years at issue was based on net profits before renegotiation. On its books, Temco charged the contributions made for 1952 and 1953 as costs and deducted them on its Federal income tax returns for those years. Those returns were audited by the Internal Revenue Service which took no exception to Temco’s including the $367,577 and $720,101 as deductions. OPINION Before facing the question of whether Temco realized excessive profits in 1952 and 1953 under the Renegotiation Act of 1951, we must determine the amount of profits arising from renegotiable business in those years and subject to renegotiation. The parties have stipulated the amounts of such profits with two exceptions, both of which involve the question whether certain expenditures made by Temco are properly chargeable as costs of renegotiable business. The principles governing our decisions on these preliminary accounting issues are contained in section 103(f). That section provides in part: The term “profits derived from contracts with the Departments and subcontracts” means the excess of the amount received or accrued under such contracts and subcontracts over the costs paid or incurred with respect thereto and determined to be allocable thereto. All items estimated to be allowed as deductions and exclusions" }, { "docid": "19324775", "title": "", "text": "during its fiscal year ended June 30,1966, were excessive to the extent of $100,000. OPINION The issue presented for decision is the extent, if any, to which petitioner’s profits under its renegotiate contracts for its fiscal year ended June 30,1966, were excessive as that term is used in the Renegotiation Act of 1951, as amended, 50 TJ.S.C. App. sec. 1211 et seq. Section 103 (e) of the Act provides as follows: (e) Excessive Profits. — The term “excessive profits” means the portion of the profits derived from contracts with the Departments and subcontracts which is determined in accordance with this title to be excessive. In determining excessive profits favorable recognition must be given to the efficiency of the contractor or subcontractor, with particular regard to attainment of quantity and quality production, reduction of costs, and economy in the use of materials, facilities, and manpower; and in addition, there shall be taken into consideration the following factors: (1) Reasonableness of costs and profits, with particular regard to volume of production, normal earnings, and comparison of war and peacetime products; (2) The net worth, with particular regard to the amount and source of public and private capital employed; (3) Extent of risk assumed, including the risk incident to reasonable pricing policies; (4) Nature and extent of contribution to the defense effort, including inventive and developmental contribution and cooperation with the Government and other contractors in supplying technical assistance; (5) Character of business, including source and nature of materials, complexity of manufacturing technique, character and extent of subcontracting, and rate of turn-over; (6) Such other factors the consideration of which the public interest and fair and equitable dealing may require which factors shall be published in the regulations of the Board from time to time as adopted. Up to the year in question, the Renegotiation Board had adopted no. regulations setting forth any additional factors for consideration in determining whether profits are excessive. The first contention of the petitioner is that in computing its sales and cost of goods sold under its renegotiable contracts the value of GFM must be included. Respondent conversely" }, { "docid": "20768911", "title": "", "text": "profits excessive for the fiscal year ended December 31, 1954? Section 103(e), Eenego-tiation Act of 1951, as amended, 50 U.S.C. App. see. 1213 (e), sets forth the statutory definition of the term “excessive profits” and the various factors to be considered in determining excessive profits. As pointed out previously, petitioner realized profits of $205,257 on renegotiable business which amounts to 34.04 percent of sales before renegotiation. There is a profit of $130,257, or 24.67 percent, after renegotiation. As we said in Martin Mfg. Co. v. Renegotiation Board, 44 T.C. 559, 564 (1965), “reasonable profits are not determined strictly on a percentage basis, either in relation to sales or net worth.” In this case the use of the ratio of profits to sales is, we think, a relatively weak factor for determining reasonable profits. Petitioner made only a single product — the electronic jet engine fuel control — and its business was subject to termination at any time. In fact, it was terminated in August 1954. Moreover, respondent failed to give favorable consideration to other factors which require “fair and equitable dealing,” i.e., over $400,000 in pre-1954 research and development costs incurred by Electronics and petitioner in connection with the jet fuel control. See secs. 1459.8 (e) (8) and 1460.10, Eenegotiation Board Eegs. Favorable consideration is also given to the fact that in 1954 there was an increase in the volume of production for defense purposes. It likewise appears from this record that in 1954 production costs were reasonable. The ratio of petitioner’s profits to its net worth does not indicate that the profits were excessive. In its opening brief respondent shows petitioner’s return on net worth before and after renegotiation as follows: Before renegotiation After renegotiation Net worth, and capital_$146, 359 $146, 359 Profit_$205, 257 $130, 257 Percent of return_ 140. 24 88. 99 Using the average book net worth for the renegotiable year, Boeing Co. v. Renegotiation Board, 37 T.C. 613, 634 (1962), petition for review dismissed 327 F. 2d 885, petitioner’s average book net worth in 1954 was $175,747.91. Eespondent added nothing to its figure of $146,359 to" }, { "docid": "14229630", "title": "", "text": "accelerated rate of depreciation. Some of this machinery is still in use. Petitioner’s manufacturing technique is not highly complex, and the nature of its work was the same, whether it processed wool for use in making goods under civilian or under Government orders. No expenditures were required by petitioner for postwar conversion of its plant because its production during the war period did not involve any conversion of its machinery and processes to any different plan of operations than it normally followed. Also, petitioner made no inventive, developmental, or other special contributions to the war efforts. The problem is to determine the extent to which the petitioner’s profits in 1942 from its renegotiable business was excessive, i. e., the amount of the excessive profits. The respondent determined in the first instance that profits from renegotiable business were excessive in the amount of $67,500. Then, in this proceeding he asserted that profits were excessive in an additional amount of $15,000. “As to the proposed increase in the amount of excessive profits, the burden of proof rests upon the respondent, while the burden of showing that the original determination is erroneous rests upon the petitioner.” Lehman Machine Co. v. R. F. G. Price Adjustment Board, 10 T. C. 350, 355; Nathan Cohen v. Secretary of War, supra. Upon consideration of all of the evidence and of all the factors set forth in section 403 (a) (4) (A) of the Renegotiation Act, we are unable to conclude that the original determination of the respondent was wrong. His determination that profits were excessive in the amount of $57,500 results in petitioner’s realization and retention of profits in the amount of $38,143.25 from its renegotiable business. The petitioner has not submitted evidence which establishes that the latter amount is not the fair and reasonable amount of profit upon its renegotiable business. On the other hand, the respondent has failed to establish, under his affirmative burden of proof under the issue which he has raised in this proceeding, that profit in the amount of $38,143.25 is “so palpably unreasonable or excessive as to justify” a further" }, { "docid": "20768910", "title": "", "text": "net profit of $205,257.01 from renegotiable business before Federal income taxes. This is a return on renegotiable sales of 84.04 percent. The return on sales after renegotiation is 24.67 percent. In arriving at the petitioner's net profit figure ($205,257.01) for the year 1954, we have not allocated to that year any of the research and development expenses which petitioner incurred in prior years. Although such expenses are a factor to be considered in determining the reasonableness of petitioner’s costs and profits under section 103 (e), petitioner cannot treat them as actual costs, or indeed as allocable costs, of the year 1954. Petitioner expensed these costs as they were incurred, and there is no evidence to show that this treatment was improper for Federal tax purposes or that it did not accurately reflect its income. Therefore, we choose not to exercise the discretion granted us by section 103(b) of the Eenegotiation Act, 50 U.S.C. App. sec. 1213(f), to redetermine petitioner’s costs in order to better reflect them. We turn now to the primary issue: Were petitioner’s profits excessive for the fiscal year ended December 31, 1954? Section 103(e), Eenego-tiation Act of 1951, as amended, 50 U.S.C. App. see. 1213 (e), sets forth the statutory definition of the term “excessive profits” and the various factors to be considered in determining excessive profits. As pointed out previously, petitioner realized profits of $205,257 on renegotiable business which amounts to 34.04 percent of sales before renegotiation. There is a profit of $130,257, or 24.67 percent, after renegotiation. As we said in Martin Mfg. Co. v. Renegotiation Board, 44 T.C. 559, 564 (1965), “reasonable profits are not determined strictly on a percentage basis, either in relation to sales or net worth.” In this case the use of the ratio of profits to sales is, we think, a relatively weak factor for determining reasonable profits. Petitioner made only a single product — the electronic jet engine fuel control — and its business was subject to termination at any time. In fact, it was terminated in August 1954. Moreover, respondent failed to give favorable consideration to other factors" }, { "docid": "20768904", "title": "", "text": "one housing Electronics, was erected to house the production facilities of petitioner. During the fiscal years 1947, 1948, 1949, 1952, and 1953, petitioner did not incur any expense for advertising. In years prior to 1954, petitioner and Electronics together incurred over $400,000 in research and development costs with respect to the electronic jet engine fuel control. These costs were written off as they were incurred. Petitioner’s renegotiable sales and profits for the fiscal year ended December 31, 1954, before and after renegotiation, were as follows: Before renegotiation After renegotiation Sales___ $602, 971 $527, 971 Profit___ $205, 257 $130, 257 Percent of sales_ 34. 04 24. 67 Offner received a salary from petitioner in the amount of $30,000 for the fiscal year ended December 31,1954. Petitioner had a net worth as of January 1,1954, of $146,359. Petitioner’s profits were not excessive in the fiscal year ended December 31,1954. OPINION . The principal issue is the correctness of respondent’s determination that petitioner had excessive profits of $75,000 in the fiscal year ended December 31,1954, under the Renegotiation Act of 1951, as amended. However, we must first ascertain petitioner’s renegotiable profits for that year, and that hinges on the resolution of two preliminary issues: (1) Whether research and development expenses incurred in 1954 are properly allocable to petitioner’s renegotiable business and (2) whether advertising expenses incurred in 1954 are properly allocable to renegotiable business. In this de novo proceeding the burden of proof rests upon petitioner to show errors in the determinations of the Renegotiation Board. Stoner Manufacturing Corp. v. Secretary of War, 21 T.C. 200 (1953); Vaughn Machinery Co. v. Renegotiation Board, 30 T.C. 949 (1958), affd. 273 F. 2d 235 (C.A. 6, 1959). In 1954 petitioner incurred research and development expenses in the amount of $32,268.20. It claims that these expenses are allocable to its renegotiable business under section 1459.8(e) (2), Renegotiation Board Regs., which provides as follows: (e) Research and, development expenses.— ******* (2) Other research and development expenses, likewise allowable in the year under review as costs under the Internal Revenue Code, may be allocated to renegotiable business under" }, { "docid": "20768905", "title": "", "text": "Act of 1951, as amended. However, we must first ascertain petitioner’s renegotiable profits for that year, and that hinges on the resolution of two preliminary issues: (1) Whether research and development expenses incurred in 1954 are properly allocable to petitioner’s renegotiable business and (2) whether advertising expenses incurred in 1954 are properly allocable to renegotiable business. In this de novo proceeding the burden of proof rests upon petitioner to show errors in the determinations of the Renegotiation Board. Stoner Manufacturing Corp. v. Secretary of War, 21 T.C. 200 (1953); Vaughn Machinery Co. v. Renegotiation Board, 30 T.C. 949 (1958), affd. 273 F. 2d 235 (C.A. 6, 1959). In 1954 petitioner incurred research and development expenses in the amount of $32,268.20. It claims that these expenses are allocable to its renegotiable business under section 1459.8(e) (2), Renegotiation Board Regs., which provides as follows: (e) Research and, development expenses.— ******* (2) Other research and development expenses, likewise allowable in the year under review as costs under the Internal Revenue Code, may be allocated to renegotiable business under certain conditions as follows: (i) If the expense was incurred in accordance with the usual business practice of the contractor, in basic research not immediately related to any current business but expected to produce ultimate benefit to the contractor’s business as a whole; or (ii) If the expense was incurred in developing processes or products as a preparation to enable the contractor to bid or negotiate for future defense business, or to perform such business more efficiently. The research expenditures in 1954 relate to the development of the dynagraph. Prior to 1954, the dynagraph had been manufactured by Electronics and used as part of the encephalograph. Similarly, sometime in either 1954 or 1955, Offner decided that only Electronics should produce the dynagraph, despite the fact that it also had potential military uses. The dynagraph was only produced by Electronics and advertised under its name. While Offner testified that petitioner contemplated production of the dynagraph for military purposes after the termination of its contracts for electronic jet engine fuel control, there is no evidence that the" }, { "docid": "7823589", "title": "", "text": "with respect to separate contracts that were the subject of negotiation between the contracting parties during the performance years. Here we have stipulated figures of actual costs of all renegotiable business of $576,809,063 in 1953 and $603,191,884 in 1954, and stipulated figures of profits of $44,577,143 in 1953 and $55,-069,369 in 1954. As set forth in our findings, petitioner’s unit cost of production decreased as production increased and on the whole, petitioner’s costs of producing military aircraft were the lowest in the industry. As to the “reasonableness” of petitioner’s profits it is enough to say this will be the ruling consideration in this proceeding. We have found that'as to volume of production, petitioner utilized all of its plant facilities at near full capacity during 1953 and 1954 and produced nearly a fourth of the military aircraft procured by the Government during the years in question. Consideration of the subfactors of “normal earnings, and comparison of war and peacetime products” is not very illuminating here. As already pointed out, petitioner had no normal peacetime operations outside the field of manufacturing airplanes and other products for military use. “(2) The net worth, with particular regard to the amount and source of public and private capital employed.” Here, as in Boeing Co. v. Renegotiation Board, 37 T.C. 613, respondent’s primary contention is that petitioner’s profits are excessive because they constitute an unreasonable return on book net worth. However, in our consideration of this factor we have done what we did in Boeing, namely, increased petitioner’s net worth figure by the value of its design and manufacturing know-how, which we feel is of the value of all its book assets combined. We have also considered large amounts of borrowed capital-interest bearing bank loans — not reflected in book net worth averaging $56,-500,000 in 1953 and 1954. We have also considered petitioner’s use of leased and Government-furnished facilities. The record shows this is characteristic of the airplane industry where wide fluctuations in volume of business make large investments in facilities impracticable. This also is a cause of high return of income on book net worth." }, { "docid": "12463794", "title": "", "text": "such amount was charged to the Hanford contract. Under this analysis, $10,247.52, in addition to 32 percent of the remainder of the salaries (treated as general overhead) or $6,618.74, totaling $16,866.26 was allocated to the Hanford contract. Inasmuch as the total salaries of the officers was $30,931.08, it appears that, in fact, over 50 percent of such salaries was charged to the Hanford contract. In this connection, it should be noted also that approximately one-fonrth of the total direct costs of the Hanford contract (upon which overhead was based) were costs of subcontracting. While the record indicates that some supervision was necessary over these subcontracts, such work would necessarily have been less of a burden on petitioner’s general overhead than if such work had actually been performed by petitioner directly. With the burden resting with petitioner, we face no duty of speculating further as to the reasonableness of the overhead allocation to the Hanford contract, but conclude that the reasonable overhead allocation to the renegotiable contracts before us is $126,101.38. The parties agree that with this overhead allocation, the net profits on the renegotiable contracts would be $346,246.52. The final issue before us is whether the profits agreed to of $346,246.52 were excessive, and, if so, to what extent. The Renegotiation Act of 1951, as amended, in section 103(e), specifies certain factors to be considered in determining what portion, if any, of the profits derived from Government contracts and subcontracts is excessive. It is stipulated that petitioner’s performance on the renegotiable contracts was of good quality, that petitioner was efficient in the use of materials, facilities, and manpower, and that the procuring and expediting of equipment and materials, particularly materials on the critical list, was difficult. Respondent also agrees that petitioner should be given favorable consideration because of the character of its business. The project was of a highly specialized and technical nature requiring considerable engineering skill and experience differing from its normal contracts. Respondent also agrees that petitioner should be given favorable consideration because of the substantial risks it assumed. Petitioner was placed in a position of building a" }, { "docid": "10991861", "title": "", "text": "petitioner to receive some favorable consideration. However, we do not 'have the evidence to find to what extent the difference arose because of Temco’s superior performance, and to what extent it is explained by the fact that the competitor, unlike Temco, was neither experienced in, nor primarily equipped for, the manufacture of precision aircraft equipment. Moreover, such figures refer to only a part of Temco’s renegotiable business; we have no figures on which to make comparisons with Temco’s costs and profits under other contracts. Finally, we have evidence that Temco’s prime contractors considered its costs and profits to be reasonable, and that its competitors considered it to be the “company to beat” in bidding for airframe subcontracts. Although this evidence was general, not based on specific information, it was uncontradicted and is entitled to some weight. The question of the reasonableness of Temco’s profits is too closely tied with the question of the existence and amount of excessive profits to be considered separately from that question. See North American Aviation, Inc. v. Renegotiation Board, supra at 228. Our ultimate decision itself reflects our conclusion, upon consideration of all relevant facts, that Temco’s profits were to some extent unreasonable. Section 103(e) of the Act specifically requires that we give: favorable recognition * * * to the efficiency of the contractor or subcontractor, with particular regard to attainment of quantity and quality production, reduction of costs, and economy in the use of materials, facilities, and manpower; * * * With respect to the attainment of quantity and quality production, Temco must receive favorable consideration. The total volume of its business in 1953 was almost six times its volume in 1950, and twice its volume in 1952 — the increases being due almost entirely to increases in its renegotiable business, while the quality of its products was good. The respondent is correct in noting that the Government provided a large portion of the facilities used to attain this increase in production, but this does not obviate the fact that it was Temco’s personnel and Temco’s efforts which made use of such facilities to" }, { "docid": "7823580", "title": "", "text": "103 (e) as “the portion of the profits derived from contracts with the Departments and subcontracts which is determined in accordance with this title to be ex cessive.” The Act does not provide any measurable objective standards upon which the determination of excessive profits is to be based. It goes on to provide that— In determining excessive profits favorable recognition must be given to tbe efficiency of tbe contractor or subcontractor, with particular regard to attainment of quantity and quality production, reduction of costs, and economy in tbe use of materials, facilities, and manpower; and in addition, there shall be taken into consideration tbe following factors: (1) Reasonableness of costs and profits, with particular regard to volume of production, normal earnings, and comparison of war and peacetime products; (2) Tbe net worth, with particular regard to the amount and source of public and private capital employed; (3) Extent of risk assumed, including the risk incident to reasonable pricing policies ; (4) Nature and extent of contribution to the defense effort, including inventive and developmental contribution and cooperation with the Government and other contractors in supplying technical assistance; (5) Character of business, including source and nature of materials, complexity of manufacturing technique, character and extent of subcontracting, and rate of turn-over; (6) Such other factors the consideration of which the public interest and fair and equitable dealing may require, which factors shall be published in the regulations of the Board from time to time as adopted. We have no problem here with respect to the amount of profits petitioner derived from its renegotiable contracts during each of the years in question. Section 103 of the Act provides: “The term ‘profits derived from contracts * * *’ means the excess of the amount received or accrued under such contracts * * * over the costs paid or incurred with respect thereto and determined to be allocable thereto.” We have stipulated figures of actual costs and payments showing petitioner’s profits from renegotiable contracts, which comprise over 90 percent of its entire profits, amounted to approximately $44,577,000 in 1953 and $55,069,369 in 1954. These" }, { "docid": "7823581", "title": "", "text": "and cooperation with the Government and other contractors in supplying technical assistance; (5) Character of business, including source and nature of materials, complexity of manufacturing technique, character and extent of subcontracting, and rate of turn-over; (6) Such other factors the consideration of which the public interest and fair and equitable dealing may require, which factors shall be published in the regulations of the Board from time to time as adopted. We have no problem here with respect to the amount of profits petitioner derived from its renegotiable contracts during each of the years in question. Section 103 of the Act provides: “The term ‘profits derived from contracts * * *’ means the excess of the amount received or accrued under such contracts * * * over the costs paid or incurred with respect thereto and determined to be allocable thereto.” We have stipulated figures of actual costs and payments showing petitioner’s profits from renegotiable contracts, which comprise over 90 percent of its entire profits, amounted to approximately $44,577,000 in 1953 and $55,069,369 in 1954. These contracts, for the most part, were for the production of military airplanes for the United States Air Force and the Navy. The airplanes included trainers, fighters, and bombers, but were predominately fighters. They were produced in large numbers, 1,974 in 1953 and 1,852 in 1954. Non-aircraft renegotiable business accounted for a small part of petitioner’s renegotiable business in the years in question. These were contracts relating to guided missiles, roclret engines, electronics, and atomic energy. There were in all some 31 contracts from which petitioner realized renegotiable profits during the years in question. Our determination as to excessive profits is not to be made with respect to amounts received or accrued under separate contracts in each year.- The Act provides that the determination as to excessive profits must be made with respect to the aggregate amounts received or accrued each year under all renegotiable contracts unless there is mutual consent for separate contract renegotiation proceedings. Sec. 105 (a); cf. Warner v. War Contracts Price Adjust. Board, 14 T.C. 1320, and United States v. Warsaw Elevator" }, { "docid": "20768916", "title": "", "text": "this record that petitioner performed efficiently. The quality of the product was high. Efficient use was made by petitioner of material, labor, and facilities. Based upon our consideration of the entire record and all the facts in the light of the statutory factors, we conclude that petitioner’s profits were not excessive in the fiscal year ended December 31, 1954. Accordingly, Decision will loe entered for the 'petitioner. Including $32,263.20 for research and development expense. Including $16,697.11 for advertising expense. This Includes $401.09 for royalty Income which the parties agree is allocated to petitioner’s renegotlable sales and $1,232.77 for Interest Income which the parties agree Is not allocable to petitioner’s renegotlable sales. 50 U.S.C. App. secs. 1211-1238. Sec. 1459.8(e) (4) provides as follows : (4) Research and development expenses not meeting the foregoing criteria, and In particular such expenses Incurred for production or process research In preparation for reconversion and post-emergency non-defense business, may not be allocated in any part to renegotiable business, or considered in renegotiation for any year. Sec. 1459.7(b) (2) (ii) provides: (ii) In cases in which it can be demonstrated that a prime contractor or subcontractor engaged in renegotiable business to the detriment of its normal commercial business in the year under review, and thereby incurred the risk of loss of its competitive position in the industry concerned, the Board will allocate to renegotiable business that portion of the prime contractor’s or subcontractor’s normal advertising expense which the Board deems properly attributable to the effort by the prime contractor or subcontractor to forestall such loss of competitive position. This is 94 percent of the total contribution to the Officer Retirement Fund. See, e.g., sec. 1459.8(e)(1) and (2), Renegotiation Board Regs., which are clearly inapplicable. See. 103 (e) provides as follows : (e) The term “excessive profits” means the portion of the profits derived from contracts with the Departments and subcontracts which is determined in accordance with this title [sections 1211-1233 of this Appendix] to be excessive. In determining excessive profits favorable recognition must be given to the efficiency of the contractor or subcontractor, with particular regard to" }, { "docid": "7823582", "title": "", "text": "contracts, for the most part, were for the production of military airplanes for the United States Air Force and the Navy. The airplanes included trainers, fighters, and bombers, but were predominately fighters. They were produced in large numbers, 1,974 in 1953 and 1,852 in 1954. Non-aircraft renegotiable business accounted for a small part of petitioner’s renegotiable business in the years in question. These were contracts relating to guided missiles, roclret engines, electronics, and atomic energy. There were in all some 31 contracts from which petitioner realized renegotiable profits during the years in question. Our determination as to excessive profits is not to be made with respect to amounts received or accrued under separate contracts in each year.- The Act provides that the determination as to excessive profits must be made with respect to the aggregate amounts received or accrued each year under all renegotiable contracts unless there is mutual consent for separate contract renegotiation proceedings. Sec. 105 (a); cf. Warner v. War Contracts Price Adjust. Board, 14 T.C. 1320, and United States v. Warsaw Elevator Co., 213 F. 2d 517. This means all of petitioner’s receipts or accruals of contract payments and all of its costs and profit figures on all of its business subject to the Act are lumped together so far as they are attributable to each year involved. It is obvious fin's permits excessive profits from one contract to be offset by deficient profits or losses from another. As stated above, we have here stipulated figures of aggregate actual costs and aggregate profits realized by petitioner on the aggregate of its renegotiable business for each year involved. Our task is to determine on all of the facts, after consideration of the statutory factors how much, if any, of the profits realized by petitioner are excessive. It is to be noted that in naming the factors to be considered in renegotiation the Act places special emphasis on the efficiency of the contractor, saying that it “must be” given favorable consideration “with particular regard to attainment of quantity and quality production, reduction of costs, and economy in the use" }, { "docid": "20117703", "title": "", "text": "about $34,000 of sales of regular products were erroneously treated as non-renegotiable, whereas they were renegotiable. The record does not contain information sufficient to work out an accurate computation following either the method of the petitioner or that of the respondent. Generally, and in the cases where the Court has had to proceed alone, the allocations have been made upon the basis of sales. The findings show that the petitioner’s sales for 1942 subject to renegotiation amounted to $1,729,645, with net profit thereon of $451,731. The ultimate question for determination is, What portion of the latter amount represents excessive profits. The petitioner argues that its excessive profits for 1942 did not exceed $81,040. It once was willing to concede that $235,000 of those profits were excessive, and in that concession it failed to include in renegotiable sales about $34,000 of sales which it now concedes were renegotiable. The respondent not only contends that the excessive profits amounted to $400,000, but he has made repeated unsuccessful attempts to amend his pleadings in order to claim that the excessive profits amounted to $500,000. He, of course, regards the profits on contract 304 as subject to renegotiation, but it has been decided herein that they were not subject to renegotiation. The petitioner urges that numerous “favorable factors” should be considered and on the basis thereof the determination of excessive profits should be reduced. The respondent attempts to depreciate many of those factors and urges the consideration of others which he regards as unfavorable. All of the evidence and all of the arguments of counsel have been carefully considered in order to arrive at a just result. Among the many factors which have been considered are the previous business activity of the petitioner, the effect on the plant and regular business of the changes made to manufacture the cartridge cases, the interruptions in regular business*- the reconversion problem, the risk assumed under the Government contracts, the plant, equipment, and capital required and the source thereof, the effort made, including the time devoted by the officers and the salaries paid, the efficiency and expedition with" }, { "docid": "21265103", "title": "", "text": "§ 1213(e) (1970). Reasonable, non-excessive profits under the Act are to be determined by overall evaluation of the particular factors present. 32 CFR § 1460.8 (a) (1974). There is no more precise formula for the determination of excessiveness under section 108 of the Act. On consideration of all the factors, plaintiff’s profits in its tax year 1967 are determined to have been excessive in the amount of $50,852. Detailed findings of the facts relevant to the several statutory factors accompany this opinion. Each factor will be separately discussed; the controverted aspects of plaintiff’s profits will be postponed to follow the discussion of some of the factors. Character of Plaintiff’s Business The factor most usefully first discussed is the character of plaintiff’s business (section 103 (e), note 1, swpra): (5) Character of business, including source and nature of materials, complexity of manufacturing technique, character and extent of subcontracting, and rate of turn-over; Plaintiff is a California corporation which in its fiscal year 1967 was engaged almost exclusively in the performance of Government military supply contracts, all renegotiable. The work for non-Government customers was less than 1 percent of the total. Plaintiff was awarded 130 contracts during the year and made shipments under 142. Total sales were $2,599,060 of which 99.38 percent of $2,582,942 were renegotiable sales. Profits were $481,281, of which profits attributable to renegotiable sales were $478,297, or, expressing profit as a percentage of sales, 18.5 percent. Plaintiff made a great variety of parts and devices of all sizes and shapes such as wheels, screws, fittings, couplings, components of other devices, valve replacement “mechanisms,” screens, and various kinds of assemblies. Customers were Air Force bases, arsenals and defense and military agency construction supply and general supply centers. Quantities usually were small, ranging from one to 1,000 with one exception. One of plaintiff’s jobs, the construction of wheel assemblies for a type of landing tank used by the Marine Corps, was far larger than any others, accounting for approximately $900,000 in sales, or almost 35 percent of the total. Plaintiff was never a “sole source” supplier and its products were never" }, { "docid": "10389964", "title": "", "text": "expressed. The testimony of petitioner’s witness that the services of William Wilson were worth $50,000 in 1942 is too full of discrepancies to be of great value. Moreover he admitted that a company whose gross sales were only $345,000 could not afford to pay such a salary. We can assign equally little probative force to the testimony of respondent’s witness that the total reasonable compensation for petitioner’s officers in 1942 would be $24,000. Kespondent’s witness was a business analyst, who was never connected with a steel fabricating plant such as petitioner, nor in touch with the customary salaries paid for responsibilities such as William and Donald Wilson undertook in 1942. In reaching our determination we have not had the benefit of evidence showing the prevailing rates of compensation for comparable positions in comparable concerns. Under all the circumstances enumerated we found as a fact that the compensation paid to both Wilsons was excessive and constituted in part a distribution of profits. On the other hand, we are convinced that respondent’s figure of $24,000 is too low to represent reasonable compensation for both men. We found as a fact and now hold that $32,000 constituted reasonable compensation for petitioner’s officers. After allocating such compensation allowance between renegotiable and non-renegotiable business, we now come to the question whether petitioner’s net profits of $63,992.12 on its renegotiable business in 1942 were excessive in amount and, if so, to what extent. We have considered all relevant factors, including the character and nature of the business, the nature and extent of contribution to the war effort, business risks assumed, the amount and source of capital employed, net worth, the volume of production, pre-war earnings, and reconversion to peacetime production. There was insufficient evidence to properly judge the efficiency and economy of petitioner’s production. Petitioner submitted no expert testimony on this issue. While respondent’s expert testified that a reasonable profit would not exceed $36,000 we do not attach much weight to this opinion. Even respondent himself has refused to follow it. It is our conclusion that petitioner realized excessive profits in the amount of $20,000 from" } ]

[ { "docid": "22771588", "title": "", "text": "penalize an alien for reentry (criminal and civil penalties do that); it establishes a process to remove him “under the prior order at any time after the reentry.” Ibid. ... [T]he statute applies to stop an indefinitely continuing violation that the alien himself could end at any time by voluntarily leaving the country. 126 S.Ct. at 2432 (second alteration in original). While aliens have a right to fair procedures, they have no constitutional right to force the government to re-adjudicate a final removal order by unlawfully reentering the country. Nor is the government required to expend vast resources on extraneous procedures before reinstating a removal order that has already been finalized and executed. Or, to put it differently, an alien who respects our laws and remains abroad after he has been removed should have no fewer opportunities to challenge his removal order than one who unlawfully reenters the country despite our government’s concerted efforts to keep him out. If Morales has a legitimate basis for challenging his prior removal order, he will be able to pursue it after he leaves the country, just like every other alien in his position. If he has no such basis, nothing in the Due Process Clause gives him the right to manufacture for himself a new opportunity to raise such a challenge. The contrary conclusion would create a new and wholly unwarranted incentive for aliens who have previously been removed to reenter the country illegally in order to take advantage of this self-help remedy. It would also make a mockery of aliens who do respect our laws and wait patiently outside our borders seeking lawful admission. Nothing in the Constitution requires such a perverse result. IV We conclude that a previously removed alien who reenters the country illegally is not entitled to a hearing before an immigration judge to determine whether to reinstate a prior removal order. The reinstatement statute and its implementing regulation comport with due process, and 8 C.F.R. § 241.8 is a valid interpretation of the INA. Morales has shown no violation of due process in the conduct of his reinstatement" } ]

[ { "docid": "22192252", "title": "", "text": "98 F.3d at 424. In this case, petitioners had good reason to believe that direct review was not available and that a habeas corpus petition was their only avenue to secure judicial review. This court reached the same conclusion in Martinez-Vitela, and the government had taken the position that direct review was not available. Under the circumstances, it is in the interests of justice to exercise our authority under the transfer statute. Because the conditions of the transfer statute are satisfied, we deem these appeals transferred to this court and proceed to the merits. III. DUE PROCESS Petitioners contend that INA § 241(a)(5) violates their right to procedural due process by summarily expelling them from the country solely on the basis of the evaluation of an INS agent, with no opportunity for a hearing before an Immigration Judge (IJ). The government’s procedures, the petitioners contend, are deficient because they deny them: a hearing before an IJ; a right to appeal to the BIA; a right to develop a record; representation by counsel; and adequate notice of the government’s intended action. The reinstatement process raises very serious due process concerns, and is caused not by a change mandated by Congress as part of IIRIRA, but by an administrative decision to amend the regulations governing reinstatement proceedings in the wake of IIR-IRA. The new reinstatement of removal provision, INA § 241(a)(5), provides in full that: If the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this Act, and the alien shall be removed under the prior order at any time after the reentry. This provision makes no mention whatsoever of the procedures to be used to implement it. As noted above, § 241(a)(5) modified and replaced a provision of the INA providing for reinstatement of orders of deportation. See INA § 242(f)" }, { "docid": "22176460", "title": "", "text": "protections he demands, including the presence of counsel, would have changed this. We therefore need not determine the constitutional adequacy of the existing procedures as to aliens who would dispute the factual bases for reinstatement. Id. The absence of the requisite prejudice further precludes petitioner from challenging the constitutionality of 8 C.F.R. § 241.8 on its face. Our role is “to provide relief to claimants ... who have suffered ... actual harm.” Lewis v. Casey, 518 U.S. 343, 349, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). We therefore reject petitioner’s due process claims. We note, however, that despite the lack of a formal hearing, the fast-track reinstatement process under 8 C.F.R. § 241.8 is not devoid of procedural safeguards. First, “[t]he immigration officer must obtain the prior order of ... deportation relating to the alien.” Id. § 241.8(a)(1). Second, if the alien’s identity is disputed, the officer must compare the alien’s fingerprints with those of the previously deported alien; “[i]n the absence of fingerprints in a disputed case the alien shall not be removed pursuant to [the reinstatement regulation].” Id. § 241.8(a)(2). Third, in making the crucial finding that the alien reentered the U.S. unlawfully, the officer must “consider all relevant evidence, including statements made by the alien and any evidence in the alien’s possession.” Id. § 241.8(a)(3). If the alien claims lawful admission, “the officer shall attempt to verify” the claim by checking the available ICE databases. Id. Last, even when the officer finds that the alien is subject to removal, the alien must be notified in writing of this adverse determination and be advised of the right to submit “a written or oral statement contesting the determination,” which the officer must then take into account. Id. § 241.8(b). “If the alien expresses a fear of returning to the country-designated in [the reinstatement] order, the alien shall be immediately referred to an asylum officer for an interview.” Id. § 241.8(e). The alien may also challenge the reinstatement order in a court of appeals. 8 U.S.C. § 1252(a). C. Collateral Review of the Underlying Deportation Order. Petitioner asks us to" }, { "docid": "22098812", "title": "", "text": "subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this chapter, and the alien shall be removed under the prior order at any time after the reentry. The implementing regulation states in relevant part: An alien who illegally reenters the United States after having been removed, or having departed voluntarily, while under an order of exclusion, deportation, or removal shall be removed from the United States by reinstating the prior order. The alien has no right to a hearing before an immigration judge in such circumstances. 8 C.F.R. § 241.8(a). Petitioner filed a petition for habeas corpus in the district court. Pursuant to Castro-Cortez v. INS, 239 F.3d 1037, 1046-47 (9th Cir.2001), the parties stipulated that the petition should be transferred to this court. We granted a stay of the reinstatement order pending our review of the merits. STANDARD OF REVIEW We review de novo due process challenges to immigration decisions. Ramirez-Alejandre v. Ashcroft, 320 F.3d 858, 869 (9th Cir.2003) (en banc). DISCUSSION We deal here with the interaction between two methods of removal. The first provides for the expedited removal—without a hearing—of an alien who is deemed to be inadmissible upon attempted entry, due to misrepresentation. 8 U.S.C. § 1225(b)(1)(A). The second provides for the reinstatement of a prior removal order—without a hearing—if the alien later is found in the United States after reentering illegally. 8 U.S.C. § 1231(a)(5). The INS removed Petitioner under § 1225(b)(1)(A) and now seeks to reinstate that removal under § 1231(a)(5). Petitioner does not challenge her initial removal. Even if she did, the reinstatement statute, as interpreted in our case law, bars review of that order either directly or collaterally. 8 U.S.C. § 1231(a)(5); Alvarenga Villalobos v. INS, 271 F.3d 1169, 1170-71 (9th Cir.2001). By contrast, we do have jurisdiction to review the reinstatement order. Castro-Cortez, 239 F.3d at 1046. The question, then, is whether—accepting the prior order as valid—due process requires a hearing upon reinstatement of that order. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) revised the reinstatement provision," }, { "docid": "4001003", "title": "", "text": "States in 1973. In 1989, the government ordered Petitioner removed to Mexico and removed him that same day. Petitioner reentered the United States, without permission. For unknown reasons, the government chose to seek a new order of removal instead of reinstating the 1989 order of removal. In 1993, the government again ordered Petitioner removed to Mexico and removed him the next day. Petitioner reentered the United States without legal authorization yet again. According to Petitioner, he entered at a border crossing by presenting his pre-1989 permanent resident card to the border official. The border official allowed Petitioner physically to enter the country. Thereafter Petitioner filed an application to replace his permanent resident card. Upon receiving the application, the government realized that Petitioner had no legal authority to be in the country. The government sent Petitioner a letter advising him of an appointment—ostensibly to discuss his application. When Petitioner arrived for his appointment, however, the government arrested him. The government presented its notice of intent to reinstate the prior order of removal, an immigration official reinstated the prior order of removal, and Petitioner was removed. Petitioner timely petitions for review. DISCUSSION Petitioner argues that the immigration officer committed legal error in determining (1) that he was subject to a valid prior removal order and (2) that he illegally reentered the United States. Petitioner also argues (3) that the immigration officer violated his due process rights by using a ruse to apprehend him. A. Prior Removal Order The government reinstated Petitioner’s 1989 removal order pursuant to 8 U.S.C. § 1231(a)(5): If the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this chapter, and the alien shall be removed under the prior order at any time after the reentry. The plain text of the statutory provision was met with respect to the 1989" }, { "docid": "14392309", "title": "", "text": "no constitutional right to force the government to re-adjudicate a final removal order by unlawfully reentering the country.” Morales-Izquierdo, 486 F.3d at 498. In a reinstatement proceeding, “an alien’s rights and remedies are severely limited.” Id. at 497. Villa possesses no fewer rights today, having had his removal order reinstated, than he did the day he unlawfully re-entered the country because “[t]he reinstatement order imposes no civil or criminal penalties, creates no new obstacles to attacking the validity of the removal order, and does not diminish petitioner’s access to whatever path for lawful entry into the United States might otherwise be available to him under the immigration laws.” Id. at 498 (citations omitted). Those laws grant Villa no entitlement to new removal proceedings. Perhaps Villa would possess a more concrete interest if the agency’s regulations in any way spelled out this discretion which the majority insists the agency regularly practices. Yet the majority cites no statute or regulation that delineates the criteria by which the agency must exercise its prosecutorial discretion specifically in the context of reinstatement-or that specifies how Villa’s successful defense at his criminal trial should impact that discretionary administrative decision whether to once again remove him. The majority instead misleadingly cites to the requirement in 8 C.F.R. § 241.8(a)(3) that the immigration officer “consider all relevant evidence,” when it can easily ascertain that the regulation only requires the officer to consider all evidence relevant to determining whether the alien unlawfully reentered the country — which Villa unquestionably did. The district court’s conclusion in sustaining his challenge to the criminal indictment was irrelevant to that administrative determination. To the extent the majority relies on an internal ICE memorandum — which does not specifically address reinstatement— “[i]t is well settled that internal policy manuals of federal agencies do not generally create due process rights in others.” James v. U.S. Parole Comm’n, 159 F.3d 1200, 1206 (9th Cir.1998). The memorandum itself explains that “there is no right to the favorable exercise of discretion by the agency,” and therefore the memorandum cautions that it “may not be relied upon to create" }, { "docid": "22290118", "title": "", "text": "of the right to judicial review in the initial proceeding. See Mendoza-Lopez, 481 U.S. at 839, 107 S.Ct. 2148. This did not occur here. Alvarenga was not deprived of the right to judicial review in his initial deportation proceeding; he voluntarily waived his right to appeal. Alvarenga points out that we recently expressed concern about the procedural due process implications of § 241(a)(5) and its implementing regulation, 8 C.F.R. § 241.8, in Castro-Cortez v. INS, 239 F.3d 1037 (9th Cir.2001). However, the issue there was whether summary expulsion based on an INS agent’s appraisal comported with due process. We did not decide that the reinstatement procedures codified in the regulation did violate due process and we decline to do so now. The regulation states: An alien who illegally reenters the United States after having been removed, or having departed voluntarily, while under an order of exclusion, deportation, or removal shall be removed from the United States by reinstating the prior order. The alien has no right to a hearing before an immigration judge in such circumstances. 8 C.F.R. § 241.8(a) (emphasis added). Thus, another hearing is denied only to those aliens who have already been excluded, deported, or removed after having been given one full and fair hearing, including the right to judicial review of that hearing. To preclude a second bite at the apple after an illegal reentry does not offend due process. See Duldulao v. INS, 90 F.3d 396, 400 (9th Cir.1996) (holding that AEDPA § 440(a) does not offend due process). V Alvarenga finally contends that 8 C.F.R. § 3.44(i) violates the equal protection clause because it arbitrarily and irrationally discriminates between two classes of aliens without a rational purpose. We disagree. Distinctions between different classes of aliens in the immigration context are subject to rational basis review and must be upheld if they are rationally related to a legitimate government purpose. Ram v. INS, 243 F.3d 510, 517 (9th Cir.2001). Section 3.44 permits certain aliens who were in deportation proceedings before April 24, 1996 to file a motion to reopen to seek § 212(c) relief that" }, { "docid": "22771589", "title": "", "text": "pursue it after he leaves the country, just like every other alien in his position. If he has no such basis, nothing in the Due Process Clause gives him the right to manufacture for himself a new opportunity to raise such a challenge. The contrary conclusion would create a new and wholly unwarranted incentive for aliens who have previously been removed to reenter the country illegally in order to take advantage of this self-help remedy. It would also make a mockery of aliens who do respect our laws and wait patiently outside our borders seeking lawful admission. Nothing in the Constitution requires such a perverse result. IV We conclude that a previously removed alien who reenters the country illegally is not entitled to a hearing before an immigration judge to determine whether to reinstate a prior removal order. The reinstatement statute and its implementing regulation comport with due process, and 8 C.F.R. § 241.8 is a valid interpretation of the INA. Morales has shown no violation of due process in the conduct of his reinstatement proceeding. To the extent genuine issues of material fact exist with respect to his underlying removal order, this “prior order ... is not subject to being reopened or reviewed” during the course of the reinstatement process. INA § 241(a)(5), 8 U.S.C. § 1231(a)(5). PETITION DENIED. . Why this is so is not clear, and neither party explains it. It's certainly possible to conceive of a system where a removal order remains in force permanently and may be re-executed whenever the alien is found to have reentered the country illegally. As Judge Fernandez has noted, “there is nothing unusual about allowing multiple executions on a judgment until the full relief under it has been obtained.” Castro-Cortez v. INS, 239 F.3d 1037, 1055 (9th Cir.2001) (Fernandez, J., dissenting), abrogated by Fernandez-Vargas v. Gonzales, - U.S. -, 126 S.Ct. 2422, 2427 & n. 5, 165 L.Ed.2d 323 (2006). That, however, does not appear to be the way our immigration law has developed. . When an alien is apprehended for an immigration violation, the immigration officer typically serves the" }, { "docid": "22715380", "title": "", "text": "or freedom would be jeopardized,” but leaving open the question of “whether or not due process protections apply to an application for a discretionary grant of asylum”). We do not consider those situations here, nor do we address.whether an applicant for withholding of removal or relief under the CAT would have a protect-able interest in those mandatory forms of relief. In any event, assuming arguendo that petitioners had a protectable interest in relief under § 1158(a)(2)(D), they have not been denied due process. We stated in Augustin v. Sava: The requirements of the due process clause are flexible and dependent on the circumstances of the particular situation examined. Without attempting precisely to map the contours of due process in the immigration area, we think that the protected right to avoid deportation or return to a country where the alien will be persecuted warrants a hearing where the likelihood of persecution can be fairly evaluated. 735 F.2d at 37 (citation omitted). Any alien to whom the BIA’s determination would apply would have already had a full and fair removal hearing (which resulted in a final removal order) as well as the adjudication of their initial asylum application. The alien is afforded additional process by the opportunity to submit and offer evidence on a motion to reopen his earlier proceedings; if the motion is granted, a hearing will be held. 8 U.S.C. § 1229a(c)(7)(B). Thus, petitioners cannot succeed on their due process challenge. B. Equal Protection Petitioners also argue that the BIA’s interpretation results in an equal protection violation in that it treats aliens under a final removal order who nevertheless remain illegally in the United States differently than aliens under a final removal order who comply with the order by leaving, but who later reenter the United States illegally. The latter class may apply for withholding of removal and is not required to present evidence of changed country conditions to support a determination of reasonable fear. See 8 C.F.R. § 1241.8(e); id. § 1208.31. Under the BIA’s rulings, however, the former class may not reopen proceedings or submit a new asylum" }, { "docid": "22176462", "title": "", "text": "vacate the reinstatement order also on the ground that the underlying deportation proceeding deprived him of due process. However, the reinstatement of removal statute expressly prohibits us from giving petitioner a second bite at the apple. See 8 U.S.C. § 1231(a)(5) (“[T] he prior order of removal ... is not subject to being reopened or reviewed....”); Fernandez-Vargas, 548 U.S. at 34-35, 126 S.Ct. 2422. Petitioner had the right to challenge the validity of the original deportation proceeding in a direct appeal to the BIA, but he did not exercise it. This outcome does not offend due process because, “regardless of the process afforded in the underlying order,” reinstatement of the prior deportation order does not alter petitioner’s legal condition. Morales-Izquierdo, 486 F.3d at 497. The statute “does not penalize an alien for the reentry (criminal and civil penalties do that).” Fernandez-Vargas, 548 U.S. at 44, 126 S.Ct. 2422. It merely gives effect to a final order issued after a formal hearing before an immigration judge. The purpose is to “stop an indefinitely continuing violation that the alien himself could end ... by voluntarily leaving the country.” Id. As the Ninth Circuit put it, “[w]hile aliens have a right to fair procedures, they have no constitutional right to force the government to re-adjudicate a final removal order by unlawfully reentering the country.” Morales-Izquierdo, 486 F.3d at 498. In seeking to set aside the reinstated deportation order, petitioner relies on United States v. Mendoza-Lopez, 481 U.S. 828, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987). However, that case recognized an alien’s right to attack collaterally a prior deportation order only in the context of a subsequent criminal proceeding for illegal reentry where the prior deportation is an element of the crime, and where direct judicial review of the original proceeding was not available due to procedural defects. Id. at 838-39 & 839 n. 17, 107 S.Ct. 2148. D. Waiver of Inadmissibility. Finally, petitioner argues that, before the reinstatement order could be issued, he was entitled to adjudication on the merits of his applications for Waiver of Grounds of Excludability and for Permission to" }, { "docid": "17715417", "title": "", "text": "Merits of the Petition We turn to the merits of the denial of Cordova-Soto’s motion to reopen. Because the Board agreed with the immigration judge’s multiple grounds for denying the petition, we review the immigration judge’s order as supplemented by the Board’s decision. See Munoz-Avila v. Holder, 716 F.3d 976, 978 (7th Cir.2013); Abraham v. Holder, 647 F.3d 626, 632 (7th Cir.2011). Although we have jurisdiction to consider the merits, we agree with the government that § 1231(a)(5) bars reopening of a removal order that has been reinstated after the alien’s illegal return to the United States. That paragraph of the statute is entitled “Reinstatement of removal orders against aliens illegally reentering,” and it provides: If the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this chapter, and the alien shall be removed under the prior order at any time after the reentry. Cordova-Soto argues that § 1231(a)(5) is not a permanent bar but instead prevents aliens from reopening their removal orders only while the reinstatement process is underway. She points out that the statute is written in the present tense, not the future tense: the order “is reinstated” and “is not subject to being reopened.” 8 U.S.C. § 1231(a)(5). She adds that reading the provision as a permanent bar raises due process concerns because aliens who contend that they were removed without notice and hearing would be forever unable to challenge their removal orders after reinstatement. (This would be true, however, only for aliens who are removed and who then choose to reenter the United States illegally.) She also notes that Congress explicitly used the word “permanently” in other portions of the Immigration and Nationality Act when it intended to forever bar any future relief. See, e.g., 8 U.S.C. § 1158(d)(6). We disagree with Cordova-Soto’s reading of § 1231(a)(5)" }, { "docid": "13421972", "title": "", "text": "C.F.R. § 241.8, both as applied in this case and on its face, comports with the Due Process Clause of the Fifth Amendment; ... and whether the ICE properly reinstated the underlying deportation order without first adjudicating petitioner’s pending applications for [relief].” Id. at 144. We rejected the petitioner’s arguments with regard to all of the above issues. First, we noted that, pursuant to section 241(a)(5)’s terms, “[t]he inquiry in a reinstatement proceeding is limited to whether the ‘alien has reentered the United States illegally after having been removed.’ ” Id. at 148 (quoting 8 U.S.C. § 1231(a)(5)). We further noted that, according to section 241(a)(5), “illegal reentrants are now categorically declared ineligible for any relief from removal.” Id. Accordingly, we had “little difficulty” granting Chevron deference to the government’s interpretation of section 241(a)(5), as set forth in 8 C.F.R. § 241.8. Id. at 148-49. We found the summary procedure set forth in 8 C.F.R. § 241.8, which eliminated the requirement of a hearing before an immigration judge, “quite appropriate [because] the only issues to be determined are ... the alien’s identity, the existence of a prior removal order, and whether the alien has unlawfully reentered.” Id. at 148 (internal quotation marks omitted). Furthermore, we rejected the petitioner’s due process challenges to the reinstatement order because he “admitted before the ICE and before us all of the facts necessary to warrant reinstatement under INA § 241(a)(5), i.e., that he is an alien who reentered the U.S. illegally after being previously deported.” Id. at 149 (internal quotation marks omitted); id. (“None of the additional procedural protections he demands ... would have changed this.”). Finally, we rejected the petitioner’s claim that, “before the reinstatement order could be issued, he was entitled to adjudication on the merits of his applications for [relief] filed with the DHS ... before the reinstatement order was issued.” Id. at 150. We concluded that “we cannot disre gard the statutory text” which provides that “[a]n illegal reentrant ‘is not eligible and may not apply for any relief under the INA.” Id. at 151 (emphasis omitted) (quoting 8 U.S.C." }, { "docid": "22771586", "title": "", "text": "find no reason to require it in the reinstatement context—where an alien’s rights and remedies are severely limited. See Part III.C infra. In any event, petitioner obviously got notice because he “filed a timely petition for judicial review to this court. Again, no prejudice has been shown.” Ochoa-Carrillo, 437 F.3d at 848. C. Morales also claims that a removal order may not constitutionally be reinstated if the underlying removal proceeding itself violated due process. We have, on several occasions, expressed “serious[] doubt that the government’s new reinstatement procedure comports with the Due Process Clause.” Castro-Cortez v. INS, 239 F.3d 1037, 1040 (9th Cir.2001), abrogated by Fernandez-Vargas, 126 S.Ct. at 2427 & n. 5. And, one of our cases lends direct support to Morales’ contention: “[T]he INS cannot reinstate a prior order of removal that did not comport with due process.” Arreola-Arreola v. Ashcroft, 383 F.3d 956, 963 (9th Cir.2004). To the extent we so held in Arreo-Ictr-Arreola, we revisit that decision here and reverse field: Reinstatement of a pri- or removal order—regardless of the process afforded in the underlying order— does not offend due process because reinstatement of a prior order does not change the alien’s rights or remedies. The only effect of the reinstatement order is to cause Morales’ removal, thus denying him any benefits from his latest violation of U.S. law, committed when he reentered the United States without the Attorney General’s permission in contravention of INA § 212(a)(9), 8 U.S.C. § 1182(a)(9). The reinstatement order imposes no civil or criminal penalties, creates no new obstacles to attacking the validity of the removal order, see, e.g., INA § 240(b)(5)(C)(ii), 8 U.S.C. § 1229a(b)(5)(C)(ii) (allowing reopening of a removal order based on lack of notice), and does not diminish petitioner’s access to whatever path for lawful entry into the United States might otherwise be available to him under the immigration laws. The Supreme Court noted this very point in Femandez-Vargas: While the [reinstatement] law looks back to a past act in its application to “an alien [who] has reentered ... illegally,” 8 U.S.C. § 1231(a)(5), the provision does not" }, { "docid": "6555175", "title": "", "text": "short, reinstatement under former § 242(f) was not automatic; and proceedings to reinstate a deportation order were conducted in accordance with the rules generally applicable in deportation proceedings. Gagliano v. INS, 353 F.2d 922, 929 (2d Cir.1965). Thus, there was no question that the alien received a full and fair hearing before his removal order was reinstated. The regulation governing the process under § 241(a)(5) still require that the government determine the alien’s identity; the terms on which the alien left the country; and whether the alien illegally reentered the country. The revised regulation, however, eliminates the basic procedural safeguards of former § 242.23. See Castro-Cortez, 239 F.3d at 1048-50 (expressing “serious doubt” whether the INS’s implementing regulation meets the minimum protections of the Due Process Clause). Under the new INS regulation, an alien charged with illegal reentry under § 241(a)(5) has “no right to a hearing before an immigration judge.” 8 C.F.R. § 241.8(a) (1999). Rather, an immigration officer alone makes the relevant inquiries and decides whether to issue a reinstatement order. 8 C.F.R. § 241.8(a)(l)-(3). In the Attorney General’s opinion, these changes to the INS’s implementing regulation do not violate a petitioner’s right to due process because he has “already received all of the process that is due.” Alvarenga-Villalobos, 271 F.3d at 1173. We agree with the Attorney General that a reinstatement order implemented under § 241.8 is not facially unconstitutional. Where the INS reinstates a removal order issued after a hearing comporting with all the requirements of Due Process, the reinstatement order does not violate an alien’s due process rights merely because the INS does not provide a hearing prior to reinstating the order. See id. This case is distinguishable, however, because here, Arreola argues that he did not receive all the process he was due in his prior removal proceeding. In this circumstance, Arreola explains, the INS should not be allowed to use the reinstatement process to remove him, because to do so would result in a serious violation of his due process rights. Arreola’s argument has considerable force. Indeed,”[i]t is well-established that the Due Process" }, { "docid": "14392308", "title": "", "text": "an agency exercises its purely discretionary decision on whether to prosecute. “[A]n agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.” Heckler v. Chaney, 470 U.S. 821, 831, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985). This common-sense conclusion derives from the steadfast principle that even citizens are not “entitled to judicial oversight or review of the decision to prosecute.” Albright v. Oliver, 510 U.S. 266, 274, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (quoting Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975)). Just as a criminal suspect has no procedural due process right to a hearing before a prosecutor to argue for a more lenient charge, Villa possesses no right to plead for any more than the law provides. This is a fundamental separation of powers issue, which the majority ignores when declaring remand is nonetheless required because the agency somehow abused its absolute discretion. “While aliens have a right to fair procedures, they have no constitutional right to force the government to re-adjudicate a final removal order by unlawfully reentering the country.” Morales-Izquierdo, 486 F.3d at 498. In a reinstatement proceeding, “an alien’s rights and remedies are severely limited.” Id. at 497. Villa possesses no fewer rights today, having had his removal order reinstated, than he did the day he unlawfully re-entered the country because “[t]he reinstatement order imposes no civil or criminal penalties, creates no new obstacles to attacking the validity of the removal order, and does not diminish petitioner’s access to whatever path for lawful entry into the United States might otherwise be available to him under the immigration laws.” Id. at 498 (citations omitted). Those laws grant Villa no entitlement to new removal proceedings. Perhaps Villa would possess a more concrete interest if the agency’s regulations in any way spelled out this discretion which the majority insists the agency regularly practices. Yet the majority cites no statute or regulation that delineates the criteria by which the agency must exercise its prosecutorial discretion specifically in the context" }, { "docid": "14392287", "title": "", "text": "underlying removal order. As we made clear in Morales-Izquierdo, allowing an alien to manufacture an opportunity to contest his earlier removal by reentering the country illegally, thereby triggering removal proceedings anew, would create perverse incentives. See 486 F.3d at 498. But we have not considered a situation like the present one, in which the government itself invites judicial scrutiny of the underlying removal order by instigating a criminal prosecution under § 1326. We conclude that when, as a result of such scrutiny, a district court finds constitutional infirmities in the prior removal proceedings that invalidate the prior removal for purposes of criminal prosecution, the agency cannot simply rely on a pre-prosecution determination to reinstate the prior removal order. Instead the agency must — as it may well ordinarily do — (1) provide the alien with an opportunity after the criminal prosecution is dismissed to make a written or oral statement addressing the expedited reinstatement determination in light of the facts found and the legal conclusions reached in the course of the criminal case; and (2) independently reassess whether to rely on the order issued in the prior proceedings as the basis for deportation or instead to instigate full removal proceedings. We so conclude for the following reasons: The regulation implementing 8 U.S.C. § 1231(a)(5) requires the immigration officer effecting reinstatement to “consider all relevant evidence, including statements made by the alien and any evidence in the alien’s possession.” 8 C.F.R. § 241.8(a)(3). The alien must be allowed to make a statement contesting the reinstatement determination, and the officer “shall consider whether the alien’s statement warrants reconsideration of the determination.” § 241.8(b). Those regulatory requirements respect an unlawfully present alien’s right to be heard prior to removal, a right which the Supreme Court has long recognized as grounded in the Due Process Clause. Due process, in turn, entitles an unlawfully present alien to consideration of issues relevant to the exercise of an immigration officer’s discretion. Larita-Martinez v. INS, 220 F.3d 1092, 1095 (9th Cir.2000), for example, held that due process required the Board of Immigration Appeals to consider “all relevant evidence" }, { "docid": "23545893", "title": "", "text": "an alien is removable or should be granted relief from removal “requires a formal hearing before a trier of fact.” Id. In contrast, we described reinstatement as a “narrow and mechanical” process, involving only three simple inquiries: (1) verifying the identity of the alien; (2) obtaining the prior order of removal; and (3) determining whether the alien reentered the United States illegally. Id. at 495-96. Thus, we held, the requirement that immigration judges preside over removal proceedings because of their potential complexity should not extend to the reinstatement context. Id. at 498. In addition to his general challenge to the reinstatement regulation, the petitioner in Morales-Izquierdo argued, in petitioning for review of the reinstatement, that his particular removal order could not have been reinstated without violating his due process rights, because the underlying removal order itself violated due process. Id. at 497. Overruling a prior decision in Arreola-Arreola v. Ashcroft, 383 F.3d 956, 963 (9th Cir.2004), we held that even in that circumstance, the reinstatement itself did not violate due process. Id. at 497-98. We explained that the effect of reinstatement itself was simply to return the alien to the same legal position he- occupied prior to the illegal reentry: The only effect of the reinstatement order is to cause [the alien’s] removal.... The reinstatement order imposes no civil or criminal penalties, creates no new obstacles to attacking the validity of the removal order ... and does not dimmish petitioner’s access to whatever path for lawful entry into the United States might otherwise be available to him under the immigration laws. Id. We held such a conclusion followed from the Supreme Court’s decision in Fernandez-Vargas v. Gonzales, 548 U.S. 30, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006). There the Court held that the reinstatement provision of the 1996 Act was not impermissibly retroactive because the reinstatement itself “does not penalize an alien for reentry (criminal and civil penalties do that).” 548 U.S. at 44, 126 S.Ct. at 2432. Yet, under the government’s theory of this case, the reinstatement would create an additional basis for criminal punishment that did not exist" }, { "docid": "22189217", "title": "", "text": "Lolong v. Gonzales, 484 F.3d 1173, 1176 (9th Cir.2007) (en banc) (“[0]ur jurisdiction is limited to review of final orders of removal.”). Because an order dismissing removal proceedings is not an order of removal, we lack jurisdiction over Alcala’s petitions for review. That the government may, in the future, decide to reinstate the March 18, 2000 order of removal does not confer jurisdiction upon us. For reasons unknown, the government has not yet reinstated the order. As we have explained previously, “[w]hen an alien subject to removal leaves the country, the removal order is deemed to be executed. If the alien reenters the country illegally, the order may not be executed against him unless it has been ‘reinstated’ by an authorized official.” Morales-Izquierdo v. Gonzales, 486 F.3d 484, 487 (9th Cir.2007). Reinstatement of a prior order of removal is not automatic. Under 8 U.S.C. § 1231(a)(5), if the Attorney General finds an alien has reentered this country illegally after having been removed under an order of expedited removal' — as is the case with Alcala — the prior order can be reinstated from its original date. However, the statute’s implementing regulation “requires that before a prior order can be reinstated, the immigration officer must (1) obtain the prior order related to the alien, (2) confirm that the alien under consideration is the same alien who was previously removed or voluntarily departed, and (3) confirm that the alien unlawfully reentered the United States.” Lin v. Gonzales, 473 F.3d 979, 983(9th Cir.2007) (citing 8 C.F.R. § 241.8(a)). If these requirements are met, the immigration officer must then provide the alien with written notice of the determination and give the alien an opportunity to make a statement contesting the determination before an immigration officer. 8 C.F.R. § 241.8(b). “Only if the requirements of 8 C.F.R. § 241.8(a) and (b) have been satisfied is the alien removable under the previous order.” Lin, 473 F.3d at 983, citing 8 C.F.R. § 241.8(c). Here, the government has taken no action to fulfill the requirements of 8 C.F.R. § 241.8(a) and (b); indeed, there is no evidence" }, { "docid": "23480686", "title": "", "text": "alien a hearing before an immigration judge. 8 C.F.R. § 241.8. The petitioner contrasts this spartan regime with INA § 240, which sets forth the procedures to be followed when determining removability in the first instance. In general, section 240 entitles aliens to be represented by counsel, to be heard by an immigration judge, to adduce evidence, and to cross-examine adverse witnesses. That section further provides: Unless otherwise specified in this chapter, a proceeding under this section shall be the sole and exclusive procedure for determining whether an alien may be removed from the United States.... ; 8 U.S.C. § 1229a(a)(3). The petitioner says that summary reinstatement of a deportation order sets up a parallel procedure for 'removal and thus conflicts with the quoted statute. In the petitioner’s 'view, this renders the regulation ultra vires. The government- retorts that summary reinstatement of a deportation order is not beyond the Attorney General’s statutory authority .because INA § 241(a)(5) provides an- explicit, congressionally sanctioned alternative to the otherwise exclusive procedure delineated in section 240. The government seeds its argument with persistent references to the legislative history. Those references indicate (or so the government says) that Congress intended aliens who reentered the country illegally after orice having been deported to -be treated as a separate class and removed expeditiously. See, e.g., H.R.Rep. No. 104-469, pt. 1, at 13 (1996) (explaining that “if aliens who are ordered removed ... seek reentry they are subject to immediate removal under the prior order”). ' The petitioner’s argument has a veneer of plausibility. After all, the decision to reinstate a prior deportation order is to some extent a determination as to whether an alien may be removed from the United States. Cf. Arevalo, 344 F.3d at 9 (holding, albeit in the context of appellate jurisdiction, that “reinstatement itself operates as the functional equivalent of a final order of removal”). This carapace, however, is easily pierced. Considering section 240 in the context of the INA as a whole, we conclude that its application to the reinstatement of earlier deportation orders is at best uncertain. For one thing, section" }, { "docid": "23545892", "title": "", "text": "cannot survive later collateral review when, as here, the government attempts to use a reinstatement as an element of a criminal prosecution. An analysis of our holding makes this apparent. In Morales-Izquierdo, we considered, en banc, a statutory and constitutional challenge to a regulation which, for the first time, allowed immigration officers rather than immigration judges to make reinstatement determinations. 486 F.3d at 487-88. The Attorney General had adopted the regulation after Congress significantly expanded the use of reinstatement in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Id. at 487-88, 494. Our court, sitting en banc, upheld the regulation. We did so in light of the limited and specialized role that reinstatement plays in the post-1996 immigration regime. See id. at 489-98. In holding that it was appropriate to have immigration officers make reinstatement determinations, we found reinstatements to be materially different from formal removal proceedings, over which immigration judges must preside. In removal proceedings, the inquiry can be “complex and fact-intensive.” Id. at 491. For that reason, the determination of whether an alien is removable or should be granted relief from removal “requires a formal hearing before a trier of fact.” Id. In contrast, we described reinstatement as a “narrow and mechanical” process, involving only three simple inquiries: (1) verifying the identity of the alien; (2) obtaining the prior order of removal; and (3) determining whether the alien reentered the United States illegally. Id. at 495-96. Thus, we held, the requirement that immigration judges preside over removal proceedings because of their potential complexity should not extend to the reinstatement context. Id. at 498. In addition to his general challenge to the reinstatement regulation, the petitioner in Morales-Izquierdo argued, in petitioning for review of the reinstatement, that his particular removal order could not have been reinstated without violating his due process rights, because the underlying removal order itself violated due process. Id. at 497. Overruling a prior decision in Arreola-Arreola v. Ashcroft, 383 F.3d 956, 963 (9th Cir.2004), we held that even in that circumstance, the reinstatement itself did not violate due process. Id. at 497-98. We" }, { "docid": "4001004", "title": "", "text": "the prior order of removal, and Petitioner was removed. Petitioner timely petitions for review. DISCUSSION Petitioner argues that the immigration officer committed legal error in determining (1) that he was subject to a valid prior removal order and (2) that he illegally reentered the United States. Petitioner also argues (3) that the immigration officer violated his due process rights by using a ruse to apprehend him. A. Prior Removal Order The government reinstated Petitioner’s 1989 removal order pursuant to 8 U.S.C. § 1231(a)(5): If the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this chapter, and the alien shall be removed under the prior order at any time after the reentry. The plain text of the statutory provision was met with respect to the 1989 removal order: The Attorney General found that Petitioner had reentered illegally after having been removed under the 1989 removal order, so that order is reinstated from its original date, and Petitioner shall be removed under that order at any time after reentry. We reject, as unsupported and as contrary to the statute’s text, Petitioner’s bald assertion that the 1989 removal order was “superseded” or otherwise invalidated simply because a later removal order exists. B. Illegal Reentry “If the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated.... ” 8 U.S.C. § 1231(a)(5) (emphasis added). When Petitioner reentered the country after his 1993 removal, he lacked valid documentation that permitted him to enter. Accordingly, he was inadmissible under 8 U.S.C. § 1182(a)(7)(A)(i)(I), as an alien “who is not in possession of a valid unexpired [authorization document],” and his entry was illegal. It is true that Petitioner’s most recent entry was procedurally regular: He" } ]

[ { "docid": "23564364", "title": "", "text": "MURRAH, Circuit Judge. The defendant-appellee removed this action from the Colorado District Court to the Federal District Court of that State for diversity of citizenship and requisite amount in controversy. The plaintiff-appellants moved to remand for untimely filing of the petition for removal. The motion was denied, and the trial of the case on its merits went against the plaintiffs, whereupon they renewed their motion to remand for the same reason. The trial court overruled it and the appellants have appealed, assigning only the refusal of the court to remand. If the time in which to remove the proceedings commenced to run on October 7, 1955, when the state court summons was served, the petition for removal came too late. If, however, as the trial court held, the time commenced on the date of receipt of the complaint by the defendant on October 17, 1957, the removal was timely and the judgment should be affirmed. Title 28 U.S.C. § 1446(b), as amended May 24, 1949, 63 Stat. 101, provides that a petition for removal of a civil action “shall be filed within twenty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within twenty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.” If the summons which was served on October 7, 1955, can be said to be an “initial pleading setting forth the claim for relief upon which such action or proceeding is based”, the time for removal commenced to run on that date. Rule 3(a) of the Colorado Rules of Civil Procedure provides that “A civil action is commenced (1) by filing a complaint with the court, or (2) by the service of a summons. The complaint must be filed within 10 days after the summons is served, or the action may be dismissed without notice. * * * ”" } ]

[ { "docid": "12982008", "title": "", "text": "objection to a late petition for removal will therefore result in remand. Webster v. Dow United Tech. Composite Prods., Inc., 925 F.Supp. 727, 729 (M.D.Ala.1996) (internal citations omitted) (remanding case removed more than thirty days after complaint filed and more than thirty days after plaintiffs written responses to discovery revealed basis for federal jurisdiction). Accord, Clingan v. Celtic Life Ins. Co., 244 F.Supp.2d 1298, 1302-03 (M.D.Ala.2003) (granting motion to remand because defendant failed to remove case within thirty days of receipt of complaint from which it could have ascertained case was removable). Federal law limits the period in which a defendant may exercise his removal right from state to federal court. The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based.... If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action. 28 U.S.C. § 1446(b) (emphasis added). In cases which initially involve multiple defendants who are served on different dates or in cases such as this one, where defendants are added more than thirty days after service on the originally named defendant, application of the timing requirements of 28 U.S.C. § 1446(b) presents a special problem. In such situations, courts must decide whether the thirty-days for removing the action commences once when the first-served defendant is served with the summons and complaint or whether each defendant gets a new thirty-day window for removing the case which commences when each defendant is served. The first" }, { "docid": "1759134", "title": "", "text": "alleged defendants were breaching “their duties as trustees under 29 U.S.C. Sec. 501.” They claimed violations of the UFCW Constitution, this court’s June 2, 1986, order, and federal labor law. A temporary restraining order enjoining destruction of the monument issued that day and was personally served on defendant Hansen. Twenty-nine days later, on November 7, 1986, defendants removed the action to this court. In the removal petition, defendants included all of the filings in the state district court action — the motion for a temporary restraining order, a supporting affidavit, and the order. Plaintiffs had not filed or served a complaint in the state court action. Several days after defendants filed their petition for removal, a hearing on the temporary restraining order was held before District Court Judge James Mork. At that November 12, 1986, hearing, plaintiffs provided defendants with a copy of a complaint. Judge Mork subsequently issued a nunc pro tunc order modifying the October 8th temporary restraining order. The court continued the injunction “[ujntil such time as further legal proceedings are held at the motion of either party, or upon motion or order of this Court, upon remand or otherwise, or upon motion or order of such other Court which has jurisdiction____” and extended it to the mural as well as the monument. The nunc pro tunc order was effective October 8, 1986. Butts v. Han sen, File No. C 86 0987 (Minn.Dist.Ct., Mower Cty., Nov. 17, 1986). ANALYSIS Defendants have a statutory right to remove a civil action based on claims arising out of the laws of the United States to the federal district court embracing the place where such action is pending. 28 U.S.C. Sec. 1441(a), (b). The procedure for removal requires filing a verified petition containing a short and plain statement of the facts entitling them to removal together with a copy of all process, pleadings and orders served upon them in the state court action. 28 U.S.C. Sec. 1446(a). Defendants must file the petition within thirty days after receipt of a copy of the initial pleading setting forth the claim for relief upon" }, { "docid": "11365748", "title": "", "text": "state court. “The copy of the complaint which I furnished to Mr. Katz indicated on its face that it had been filed in Carson City, Nevada, on September 6, 1988, and had the case number filled in.” Affidavit of Richard B. Foley (Exhibit A, document # 7). By affidavit, Mr. Katz acknowledges that he received a copy of the complaint on September 10, 1988. Katz Affidavit filed in Support of Defendants’ Memorandum in Opposition to Plaintiff’s Motion to Remand (document # 14). Formal service of the summons and complaint was made on defendants Stoffel and K-Seal on September 21, 1988; defendant Katz was formally served with summons and complaint on September 23, 1988. Defendants joined in a Petition for Removal, which was filed in this Court on October 18, 1988. The case is properly within the subject matter jurisdiction of this Court. The issue presented is whether defendants’ petition for removal was filed on time. 28 U.S.C. § 1446(b) provides: The petition for removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter, (emphasis added) Plaintiff argues that because the petition for removal was filed more than thirty days after defendant Katz received a file stamped copy of the complaint, the petition is untimely. Defendant Katz received a copy of the complaint on September 10; therefore, plaintiff contends that the period within which to remove ended on October 10. Since the petition for removal was not filed until October 18, the petition is untimely. Plaintiff requests that the case be remanded to the appropriate state court. Defendants argue that the thirty-day time period for removal does not start to run until after they have been formally served and received a" }, { "docid": "18435398", "title": "", "text": "ORDER MIHM, District Judge. This is a breach of contract action between Plaintiff, an Iowa corporation in the business of selling amusement rides and their accessories, and Defendant, Elektro-Mobiltechnik (EMT), a foreign corporation with its principal place of business in West Germany. The Plaintiff and Defendant EMT entered into two contracts which provided that Plaintiff would purchase Kiddie Rides’ products from EMT for resale in the United States. Plaintiff alleges that it performed all conditions of the contract but the Defendant breached the contract in several respects. Plaintiff seeks judgment in the amount of $85,000. The complaint was originally filed on November 9, 1983 in the Circuit Court of Rock Island County and was removed to Federal Court on December 8, 1983 by the Defendant EMT. The Plaintiff has moved to remand the case to state court based on three arguments: 1. That the Petition for Removal was not timely filed. 2. That the Defendant waived its right to removal by participating in the state court proceedings. 3. That the Petition for Removal is defective because all Defendants did not join in the Petition. A hearing on the Plaintiff’s motion to remand was held on February 2, 1983. TIMELINESS For its first argument, the Plaintiff contends that while the petition for removal was filed within 30 days of the time the complaint was filed, the complaint was not the “initial pleading setting forth the claim for relief upon which such action or proceeding is based” 28 U.S.C. § 1446(b). Section 1446(b) provides: “The petition for removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.” The Plaintiff claims that the “initial pleading” was not the complaint but the affidavit for attachment" }, { "docid": "18435399", "title": "", "text": "because all Defendants did not join in the Petition. A hearing on the Plaintiff’s motion to remand was held on February 2, 1983. TIMELINESS For its first argument, the Plaintiff contends that while the petition for removal was filed within 30 days of the time the complaint was filed, the complaint was not the “initial pleading setting forth the claim for relief upon which such action or proceeding is based” 28 U.S.C. § 1446(b). Section 1446(b) provides: “The petition for removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.” The Plaintiff claims that the “initial pleading” was not the complaint but the affidavit for attachment filed on October 12, 1983. The affidavit for attachment indicated that Robert H. Versman, as president of Kiddie Rides, Inc. had an $85,000 claim against EMT, a West German corporation, for breach of contract. Further, Mr. Versman stated that EMT would have property consisting of a container with Kiddie Ride items in it valued at approximately $52,665 and that the Defendant, Grand Trunk Western Railroad Company, would have actual physical custody of the container. Based on this affidavit, an order of attachment was issued on October 12, 1983 directing the sheriff of Cook County to attach the container of Kiddie Rides in the possession of Defendant Grand Trunk. In addition, the Defendants were summoned to appear in the Circuit Court of Rock Island County on November 4, 1983. On November 4, 1983, the Defendant EMT made a special appearance and filed a “Motion to Vacate Order of Attachment”. The chronology of events then proceeds as follows: the Plaintiff filed the complaint herein on November 9, 1983; the State Court denied the “Motion to Vacate Order" }, { "docid": "15860150", "title": "", "text": "to be a frivolous motion with this Court. Only when they knew they could fulfill all prerequisites to removal did they file their Notice of Removal with the Court. Their Notice of Removal was filed within thirty-days of their discovery of Larkin’s dismissal, the event that made the case fully removable. It was timely filed. CONCLUSION For the reasons stated, Plaintiffs Motion to Remand is hereby DENIED. The Court, having determined that this case has been appropriately removed, hereby DENIES Plaintiffs request for attorney’s fees. So ORDERED. . From the pleadings, it does not appear that Defendants were ever served with the first Complaint. . It is not clear from the pleadings when Defendant County of Oxford received notice of the Stipulation of Dismissal; its Notice of Removal states that the action first became removable on or about June 7, 2002. The Court will assume this is when they received notice of Defendant Larkin Enterprises’ dismissal from the case. . Section 1331 states that ''[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws or treaties of the United States.\" In his Complaint, Plaintiff asserts that Defendants violated his Fourth Amendment rights. See Amended Complaint attached to Defendants’ Notice of Removal (Pleading No. 1) at ¶¶ 30-32. . Section 1446(b) reads: The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant ... of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based .... If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant ... of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable .... . See also Broderick v. Dellasandro, 859 F.Supp. 176 (E.D.Pa. 1994) (attorney's letter advising of client's changed residence that created diversity jurisdiction was \"other paper” such that it triggered thirty-day" }, { "docid": "15907385", "title": "", "text": "that removal of the case to federal court was proper. (c) Procedure for Removal “The removal jurisdiction of the federal courts is derived entirely from the statutory authorization of Congress. We look to federal law to determine whether the elements of removal jurisdiction have been established under the statutes .... ” Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir.1979) (citing Shamrock Oil & Gas Coip. v. Sheets, 313 U.S. 100, 61 S.Ct. 868, 85 L.Ed. 1214 (1941)). Although 28 U.S.C. § 1441 in general provides a defendant with a right to remove an action from state to federal court, the procedures for removal are set forth in § 1446. In particular, § 1446(b) sets forth time requirements, as follows: The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant ... of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may be first ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action. In Lovern v. General Motors Corp., 121 F.3d 160 (4th Cir.1997), the Fourth Circuit considered in some detail the language of § 1446(b). Where an initial pleading reveals a ground for removal, the defendant will be bound to file a notice of removal within 30 days. Id. at 162. If no grounds for removal are revealed on the face of the complaint, then a defendant is not initially bound by the thirty-day time limit. However, if a defendant later receives “through service or otherwise, ... a copy of an amended pleading, motion, order or" }, { "docid": "4414699", "title": "", "text": "claims jointly. . Section 1446(b) provides: The notice of removal of a civil action or proceeding shall be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter. If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may be first ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action. 28 U.S.C. 1446(b). . The party seeking removal has the burden of showing that federal subject matter jurisdiction exists, that removal was timely and that removal is proper. Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir.1990), cert. denied, —U.S. -, 111 S.Ct. 959, 112 L.Ed.2d 1046 (1991); Steel Valley Authority v. Union Switch and Signal Division, Amer. Standard, Inc., 809 F.2d 1006, 1011 (3d Cir.1987), cert. dism'd, 484 U.S. 1021, 108 S.Ct. 739, 98 L.Ed.2d 756 (1988). Significantly, \"[t]he removal statutes ‘are to be strictly construed against removal and all doubts are to be resolved in favor of remand.’ ’’ Boyer, 913 F.2d at 111 (quoting Steel Valley, 809 F.2d at 1010). . The existence and exercise of pendent jurisdiction enables federal courts to hear state law claims over which there is no independent basis of jurisdiction. Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 349, 108 S.Ct. 614, 618, 98 L.Ed.2d 720 (1988). Whether a complaint supports the exercise of pendent jurisdiction depends upon three factors; whether the court has" }, { "docid": "1759133", "title": "", "text": "MEMORANDUM & ORDER DEVITT, District Judge. Plaintiffs move to remand this action to Minnesota district court in Mower County. They claim the action was improperly removed due to this court’s lack of subject matter jurisdiction. We disagree. Defendants properly and timely exercised their statutory right to remove this action. Consequently, plaintiffs’ motion to remand is denied. This action arises out of a long-standing conflict between certain members of United Food and Commercial Workers, Local P-9 and the trustee of Local P-9 appointed by the UFCW International Union. Plaintiffs are certain Local P-9 members and artists who are seeking to restrain the destruction of a mural and a monument on the premises of Local P-9’s headquarters, the Austin Labor Center. Defendants are Trustee Hansen and his agents. In a related case, on June 2, 1986, this court entered a preliminary injunction restraining Local P-9 members from interfering with the trustee’s duties. Hansen v. Guyette, 636 F.Supp. 907 (D.Minn.1986). FACTS On October 8, 1986, plaintiffs moved for a temporary restraining order in the Minnesota district court. They alleged defendants were breaching “their duties as trustees under 29 U.S.C. Sec. 501.” They claimed violations of the UFCW Constitution, this court’s June 2, 1986, order, and federal labor law. A temporary restraining order enjoining destruction of the monument issued that day and was personally served on defendant Hansen. Twenty-nine days later, on November 7, 1986, defendants removed the action to this court. In the removal petition, defendants included all of the filings in the state district court action — the motion for a temporary restraining order, a supporting affidavit, and the order. Plaintiffs had not filed or served a complaint in the state court action. Several days after defendants filed their petition for removal, a hearing on the temporary restraining order was held before District Court Judge James Mork. At that November 12, 1986, hearing, plaintiffs provided defendants with a copy of a complaint. Judge Mork subsequently issued a nunc pro tunc order modifying the October 8th temporary restraining order. The court continued the injunction “[ujntil such time as further legal proceedings are held" }, { "docid": "12982007", "title": "", "text": "sought on the grounds that the removing party has failed to comply with the statutory requirements for removal. See, e.g., Brown v. Demco, Inc., 792 F.2d 478 (5th Cir.1986) (ordering remand due to untimeliness of removal); Jerrell, 348 F.Supp.2d at 1283 (granting motion to remand where removing party failed to comply with procedural requirements regarding timing of removal set forth in 28 U.S.C. § 1446(b)). Because removal jurisdiction raises significant federalism concerns, “removal statutes are construed narrowly; where plaintiff and defendant clash about jurisdiction, uncertainties are resolved in favor of remand.” Burns, 31 F.3d at 1095. Indeed, the “letter of the law is clear and it requires strict construction of the language of the [removal] statute” and “all doubts about removal must be resolved in favor of remand.” Jerrell, 348 F.Supp.2d at 1281, 1283. In this district it has been explained that [a]s a general principle, the removal statutes are to be construed narrowly. Thus, even though § 1446’s time requirement is not jurisdictional, the time requirement is mandatory and must be strictly applied. Timely objection to a late petition for removal will therefore result in remand. Webster v. Dow United Tech. Composite Prods., Inc., 925 F.Supp. 727, 729 (M.D.Ala.1996) (internal citations omitted) (remanding case removed more than thirty days after complaint filed and more than thirty days after plaintiffs written responses to discovery revealed basis for federal jurisdiction). Accord, Clingan v. Celtic Life Ins. Co., 244 F.Supp.2d 1298, 1302-03 (M.D.Ala.2003) (granting motion to remand because defendant failed to remove case within thirty days of receipt of complaint from which it could have ascertained case was removable). Federal law limits the period in which a defendant may exercise his removal right from state to federal court. The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based.... If the case stated by the initial pleading is not removable, a notice of removal may be" }, { "docid": "12355591", "title": "", "text": "action, plaintiff was a resident of Pennsylvania, Defendant, a resident of Maryland, and the amount sought, over $50,000. Thus, this court would have had original jurisdiction based on diversity of citizenship, 28 U.S.C. § 1332, and Defendant would be able to remove to this court upon timely application, 28 U.S.C. § 1441. In addition to a jurisdictional basis, however, defendant must comply with the statutory notice procedures of 28 U.S.C. § 1446(b). That statute provides in pertinent part: The notice of removal of a civil action or proceeding shall be filed within thirty days after receipt by defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based.... Here, the Prothonotary for the Court of Common Pleas issued a summons which was served upon the defendant on April 26, 1990. The complaint, however, was not served until June 22, 1990. The petition for removal was filed on July 9, 1990, seventeen days after defendant received the complaint, but over two months since defendants had received the summons. Complicating matters slightly is additional correspondence between the parties, but ultimately the question is whether it was the summons or the complaint that triggered the 30 day period. If the summons was the “initial pleading setting forth the claim for relief” then removal is not timely; if it was the complaint, then all requirements for removal have been met. Pennsylvania federal courts view this issue in rather inconsistent ways. All agree, however, that in order to satisfy the notice requirement, “a defendant must be able to ascertain easily the necessary facts to support his removal petition.” Craig v. Lake Asbestos of Quebec, Ltd., 541 F.Supp. 182, 184 (E.D.Pa.1982); Nero v. Amtrak, 714 F.Supp. 753, 755 (E.D.Pa.1989), Moore v. City of Philadelphia, No. C.A. 88-1424, slip op., 1988 WL 50382 (E.D.Pa. 5/16/88). To allow a document with less information to satisfy the statute would require the movant to “guess” as to an actions’ remov-ability, thus encouraging premature, and often unwarranted, removal requests. Gottlieb v. Firestone Steel Products Co., 524" }, { "docid": "1759135", "title": "", "text": "at the motion of either party, or upon motion or order of this Court, upon remand or otherwise, or upon motion or order of such other Court which has jurisdiction____” and extended it to the mural as well as the monument. The nunc pro tunc order was effective October 8, 1986. Butts v. Han sen, File No. C 86 0987 (Minn.Dist.Ct., Mower Cty., Nov. 17, 1986). ANALYSIS Defendants have a statutory right to remove a civil action based on claims arising out of the laws of the United States to the federal district court embracing the place where such action is pending. 28 U.S.C. Sec. 1441(a), (b). The procedure for removal requires filing a verified petition containing a short and plain statement of the facts entitling them to removal together with a copy of all process, pleadings and orders served upon them in the state court action. 28 U.S.C. Sec. 1446(a). Defendants must file the petition within thirty days after receipt of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based. 28 U.S.C. Sec. 1446(b). Defendants satisfied the requirements for filing their petition for removal. The petition and accompanying state court filings were filed with this court twenty-nine days after defendants received the motion and order for a temporary restraining order. Plaintiffs contend the state court motion, however, does not constitute the “initial pleading” necessary to commence the time period for filing the removal petition. They argue the complaint is the only pleading sufficient to commence the time period, and the only document from which this court can determine the jurisdiction vel non of this court. The complaint provided to the defendants on November 12, 1986, contains, in sharp contrast to the motion for a temporary restraining order, only state law claims without reference to federal labor law, the UFCW Constitution, or this court’s June 2, 1986, order. The removal statute does not predicate removal on the filing of a complaint, although the most common “initial pleading” is a complaint. Rather, the statute contemplates as the initial pleading the" }, { "docid": "7601411", "title": "", "text": "ORDER RICHARD C. FREEMAN, Senior District Judge. This action is before the court on plaintiffs motion to remand [# 2 — 1], Defendants oppose the motion. Background This action, which essentially sounds in tort, was removed on the basis of diversity jurisdiction (28 U.S.C. § 1332) by defendants from the Superior Court of Gwinnett County, Georgia. Plaintiff now moves the court to remand this action back to the state court, due to defendants’ alleged failure to remove the action in a timely manner. Plaintiff asserts that defendants should have known from the face of the complaint that plaintiff seeks damages, compensatory plus punitive, in excess of $50,000.00, the jurisdictional requirement set by the § 1332. According to 28 U.S.C. § 1446(b), the statute authorizing removal, “The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant ... of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based ...” It is this thirty-day limitation upon which plaintiffs argument rests. Defendants, on the other hand, base their argument in part upon the second paragraph of § 1446(b), which states: “If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant *... of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable ...” Defendants argue that they had no way of knowing from the face of the complaint that plaintiff sought damages in excess of $50,000.00. They contend that they were unaware of the amount of damages sought until plaintiffs counsel contacted opposing counsel via telephone and informed defense counsel that damages would be sought “in the six-figure range.” See Exhibit A to Notice of Removal, Affidavit of Charles H. Morgan, at ¶ 5. Soon thereafter, defendants filed their notice of removal. The court disagrees with plaintiffs contention that removal was untimely. However, it does find" }, { "docid": "1759137", "title": "", "text": "first document setting forth the claim for relief. Whether the initial pleading is a complaint or some other document depends on the type of civil action or proceeding. See, e.g., Kiddie Rides USA, Inc. v. Elektro Mobiltechnik GMBH, 579 F.Supp. 1476 (C.D.Ill.1984) (affidavit for attachment constitutes initial pleading). Upon receipt of such document, if defendants are able to ascertain removability of the action, the thirty day filing period commences to run. See Ardison v. Villa, 248 F.2d 226, 227 (10th Cir.1957). In this action, judicial proceedings commenced in the state court upon the October 8th filing of plaintiffs’ motion and supporting affidavit for a temporary restraining order. The motion clearly stated plaintiffs’ claim for relief under federal labor law and gave defendants notice of removability. Jurisdiction was proper in both state and federal courts. 29 U.S.C. Sec. 501(b). Based on the motion and the affidavit, the state court judge exercised jurisdiction over the action, made findings pursuant to Minnesota Rule of Civil Procedure 65.01, and issued an order restraining defendants. It is inescapable that this proceeding was pending in state court despite the absence of a complaint. Had defendants been required to wait for the plaintiffs to produce a complaint, they would have been deprived of their right to a federal forum during the temporary restraining order proceedings. Defendants’ statutory right to removal would be subject to plaintiffs’ whim. It is well-established that the propriety of removal is determined by the record as it stands at the time the petition for removal is filed. Hatridge v. Aetna Casualty & Surety Co., 415 F.2d 809, 814 (8th Cir.1969). Based on the filings supporting the temporary restraining order and defendants’ petition for removal, removal was proper and timely on November 7, 1986. The federal law claims upon which the temporary restraining order was granted supply this court with subject matter jurisdiction. Plaintiffs’ subsequent filings do not establish improvident removal or lack of federal jurisdiction for purposes of this motion to remand. Accordingly, based on the foregoing, and all files, records, and proceedings herein, IT IS ORDERED that: Plaintiffs’ motion for remand is" }, { "docid": "21038010", "title": "", "text": "notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based ... If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable ... Plaintiff argues that defendants’ removal was untimely. Relying on the second paragraph of 28 U.S.C. § 1446(b), defendants assert that they removed the case as soon as they were able to ascertain remov-ability. Defendants received written notice that plaintiff is claiming a violation of federal law on October 11, 1999 and removed the case within 30 days. In response, plaintiff maintains that the second paragraph of § 1446(b) applies only when the complaint clearly demonstrates that it is not removable. According to plaintiff, the 30-day time limit was triggered in July 1998 because a federal cause of action is manifestly evident from the face of the complaint. The threshold issue is whether the case was removable in July 1998 when the defendants first received the complaint. Removability in July 1998 According to 28 U.S.C. § 1441, an action may be removed only if the case originally could have been filed in federal court. Where there is no diversity of citizenship, as is the case here, federal question jurisdiction is required for removal. With a few exceptions not relevant here, “[t]he presence or absence of federal question jurisdiction is governed by the well-pleaded complaint rule.” Marcus v. AT&T Corp., 138 F.3d 46, 52 (2d Cir.1998). “That rule provides that federal question jurisdiction exists only when the plaintiffs own cause of action is based on federal law, ... and only when plaintiffs well-pleaded complaint raises issues of federal law ... [T]he plaintiff is the" }, { "docid": "1759136", "title": "", "text": "which such action or proceeding is based. 28 U.S.C. Sec. 1446(b). Defendants satisfied the requirements for filing their petition for removal. The petition and accompanying state court filings were filed with this court twenty-nine days after defendants received the motion and order for a temporary restraining order. Plaintiffs contend the state court motion, however, does not constitute the “initial pleading” necessary to commence the time period for filing the removal petition. They argue the complaint is the only pleading sufficient to commence the time period, and the only document from which this court can determine the jurisdiction vel non of this court. The complaint provided to the defendants on November 12, 1986, contains, in sharp contrast to the motion for a temporary restraining order, only state law claims without reference to federal labor law, the UFCW Constitution, or this court’s June 2, 1986, order. The removal statute does not predicate removal on the filing of a complaint, although the most common “initial pleading” is a complaint. Rather, the statute contemplates as the initial pleading the first document setting forth the claim for relief. Whether the initial pleading is a complaint or some other document depends on the type of civil action or proceeding. See, e.g., Kiddie Rides USA, Inc. v. Elektro Mobiltechnik GMBH, 579 F.Supp. 1476 (C.D.Ill.1984) (affidavit for attachment constitutes initial pleading). Upon receipt of such document, if defendants are able to ascertain removability of the action, the thirty day filing period commences to run. See Ardison v. Villa, 248 F.2d 226, 227 (10th Cir.1957). In this action, judicial proceedings commenced in the state court upon the October 8th filing of plaintiffs’ motion and supporting affidavit for a temporary restraining order. The motion clearly stated plaintiffs’ claim for relief under federal labor law and gave defendants notice of removability. Jurisdiction was proper in both state and federal courts. 29 U.S.C. Sec. 501(b). Based on the motion and the affidavit, the state court judge exercised jurisdiction over the action, made findings pursuant to Minnesota Rule of Civil Procedure 65.01, and issued an order restraining defendants. It is inescapable that this" }, { "docid": "18435401", "title": "", "text": "of Attachment” on November 10, 1983; the Defendant EMT removed the case to Federal Court on December 8, 1983; and the Defendant filed a notice of appeal in state court of the denial of its “Motion to Vacate Order of Attachment” on December 9, 1983. With this background, the Court must consider whether the affidavit of attachment should be considered the initial pleading in this case or whether the initial plead ing was in fact the complaint filed on November 9. In their discussion of the “time for seeking removal”, Wright, Miller and Cooper state: “The fundamental principle of the statute is that the time limitation on seeking removal begins to run when defendant receives notice of the action, not when the action is commenced.” Wright, Miller, and Cooper, Federal Practice and Procedure: Civil, § 3732. Thus: “By its own terms, then, the statute does not require an action to be filed before a petition for removal will be entertained. It is the ‘receipt’ of the ‘initial pleading’ pursuant to section 1446 which controls removability.” Perimeter Lighting, Inc. v. Karlton, 456 F.Supp. 355, 358-359 (N.D.Ga.1978). In the Karlton case, the defendant filed a petition for removal after a temporary restraining order had been entered against him even though no complaint had been filed with the clerk of the state court. At the hearing on the temporary restraining order, the plaintiff had delivered to the defendant and the presiding judge a copy of a complaint but one week later filed a complaint which differed from that which he had delivered at the TRO hearing. While the complaint delivered at the TRO hearing presented complete diversity and, •therefore, would have permitted removal, the complaint as actually filed included other parties and complete diversity was not present and removal would have been improper. The Court held that an “initial pleading” as used in the statute: \"... must constitute a clear statement of the case which will allow the defendant to examine the basis for the action. In particular, the initial pleading must be such that the defendant can intelligently ascertain removability from its" }, { "docid": "15860151", "title": "", "text": "arising under the Constitution, laws or treaties of the United States.\" In his Complaint, Plaintiff asserts that Defendants violated his Fourth Amendment rights. See Amended Complaint attached to Defendants’ Notice of Removal (Pleading No. 1) at ¶¶ 30-32. . Section 1446(b) reads: The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant ... of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based .... If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant ... of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable .... . See also Broderick v. Dellasandro, 859 F.Supp. 176 (E.D.Pa. 1994) (attorney's letter advising of client's changed residence that created diversity jurisdiction was \"other paper” such that it triggered thirty-day time period for removal under removal statute). . This Court finds the voluntary dismissal by Plaintiff of a nonconsenting Defendant to be analogous to the situation where a plaintiff voluntarily dismisses a nondiverse defendant, thereby rendering the action removable. \"A change in the parties to the state action, such as the plaintiff’s voluntary dismissal of those defendants whose presence in the action destroyed complete diversity of citizenship, may make a previously unremovable action removable.” Wright, Miller & Cooper, Federal Practice And Procedure: Jurisdiction 3d § 3732 (1998). It is undisputed that this latter situation creates removability where there was none before. See Caterpillar Inc. v. Lewis, 519 U.S. 61, 69, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996) (citing 28 U.S.C. § 1446(b))(where case not originally removable, defendant who receives a pleading or other paper indicating dismissal of a nondi-verse party may remove the case to federal court within 30 days of receiving such information). A nonconsenting defendant creates a barrier to removability just as does a nondi-verse defendant. Although the former is a procedural barrier" }, { "docid": "18435400", "title": "", "text": "filed on October 12, 1983. The affidavit for attachment indicated that Robert H. Versman, as president of Kiddie Rides, Inc. had an $85,000 claim against EMT, a West German corporation, for breach of contract. Further, Mr. Versman stated that EMT would have property consisting of a container with Kiddie Ride items in it valued at approximately $52,665 and that the Defendant, Grand Trunk Western Railroad Company, would have actual physical custody of the container. Based on this affidavit, an order of attachment was issued on October 12, 1983 directing the sheriff of Cook County to attach the container of Kiddie Rides in the possession of Defendant Grand Trunk. In addition, the Defendants were summoned to appear in the Circuit Court of Rock Island County on November 4, 1983. On November 4, 1983, the Defendant EMT made a special appearance and filed a “Motion to Vacate Order of Attachment”. The chronology of events then proceeds as follows: the Plaintiff filed the complaint herein on November 9, 1983; the State Court denied the “Motion to Vacate Order of Attachment” on November 10, 1983; the Defendant EMT removed the case to Federal Court on December 8, 1983; and the Defendant filed a notice of appeal in state court of the denial of its “Motion to Vacate Order of Attachment” on December 9, 1983. With this background, the Court must consider whether the affidavit of attachment should be considered the initial pleading in this case or whether the initial plead ing was in fact the complaint filed on November 9. In their discussion of the “time for seeking removal”, Wright, Miller and Cooper state: “The fundamental principle of the statute is that the time limitation on seeking removal begins to run when defendant receives notice of the action, not when the action is commenced.” Wright, Miller, and Cooper, Federal Practice and Procedure: Civil, § 3732. Thus: “By its own terms, then, the statute does not require an action to be filed before a petition for removal will be entertained. It is the ‘receipt’ of the ‘initial pleading’ pursuant to section 1446 which controls removability.”" }, { "docid": "21476560", "title": "", "text": "the representative plaintiff and remaining putative class members, Chrysler Financial holds no preference as to whether they should also be brought before this court on exercise of supplemental jurisdiction under 28 U.S.C. § 1367 or left to state court without the expanded class. See Arnold, v. Ford Motor Co., CV 95-PT-0073-M (N.DAla. May 2, 1995) and McGrew v. Superior Oldsmobile-Buick, Inc., 96-PT-3104-E (N.D.Ala. February 19, 1995). Section 1446(b) of Title 28 limits the time for removal of actions based upon diversity of citizenship to one year from the commencement of the action in state court. The statute states: The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter. If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action. (Emphasis added). The instant action was not initially removable when filed in the state court. However, the plaintiff amended her complaint to include class allegations arguably supporting diversity jurisdiction twenty-three months after the action was initially filed. Chrysler Financial filed its notice of removal within a month after that amendment. The plaintiff argues that because her amended complaint was made twenty-three months after the action was initially filed, Chrysler Financial’s basis for removal was born outside of the one-year removal" } ]

[ { "docid": "22786325", "title": "", "text": "the act of the legislature, under which they are proceeding, justifies the building of the bridge. The complainants insist that such an obstruction to the navigation of the river is repugnant to the Constitution and laws of the United States, touching the subject of commerce. These provisions of the Constitution bear upon the subject: “ Congress- shall have power . . to regulate commerce with foreign nations, among the several States, and with the Indian tribes; . , to make all laws-which shall be necessary and proper for carrying into/ execution the foregoing powers.” “ This Constitution, andi the laws- which shall be made in pursuance thereof, . . shall be the supreme law of the land, and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.” “ The power® not delegated! to- the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The act of the 18th- of February, 1793, authorizes vessels enrolled and licensed according to its provisions to engage in the coasting trade. Commerce includes navigation. The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States which are accessible from a State other than those in which they lie. For this purpose they are the public property of the nation, and subject to all the requisite legislation hy Congress. This necessarily includes the power to keep them open and free from any obstruction to their navigation, interposed hy the States or otherwise; to remove such obstructions when they exist; and to provide., hy such sanctions as they may deem proper, against the occurrence of the evil and for the punishment of offenders. For these purposes, Congress possesses all the powers which existed in the States before the adoption of the national Constitution, and which have always existed in the Parliament in England. It is for Congress to determine when its full power shall he brought into" } ]

[ { "docid": "6768346", "title": "", "text": "that issue is not here resolved. Compensation for Lands Taken The first issue raised, concerns the Tribes’ entitlement to compensation for water power values associated with their lands. The Tribes assert that even though the navigational servitude may be exercised by the United States without liability under the Constitution for water power values of riverbed or riparian lands, Congress is free to provide for compensation and has done so with respect to the power values of Colville lands by entering into the 1891 agreement with the Tribes and by enacting the three statutes discussed above. The Tribes argue that by these acts Congress specifically undertook to protect Indian water power values and effectively waived the sovereign’s right to exercise the power of navigational servitude without compensation. In United States v. Cherokee Nation of Oklahoma, 480 U.S. 700, 107 S.Ct. 1487, 94 L.Ed.2d 704 (1987), the Supreme Court addressed the question whether compensation for a taking was required for the Chero kee’s riverbed lands by reason of navigational improvements made on the Arkansas River. The federal project damaged sand and gravel deposits in the riverbed which was owned by the Tribe. As explained therein: Though “this Court has never held that the navigational servitude creates a blanket exception to the Takings Clause whenever Congress exercises its Commerce Clause authority to promote navigation,” Kaiser Aetna v. United States, 444 U.S. 164, 172 [100 S.Ct. 383, 389, 62 L.Ed.2d 332] (1979), there can be no doubt that “[t]he Commerce Clause confers a unique position upon the Government in connection with navigable waters.” United States v. Rands, 389 U.S. 121, 122 [88 S.Ct. 265, 266, 19 L.Ed.2d 329] (1967). It gives to the Federal Government “a ‘dominant servitude,’ FPC v. Niagara Mohawk Power Corp., 347 U.S. 239, 249 [74 S.Ct. 487, 493, 98 L.Ed. 666] (1954), which extends to the entire stream and the stream bed below ordinary highwater mark. The proper exercise of this power is not an invasion of any private property rights in the stream or the lands underlying it, for the damage sustained does not result from taking property from" }, { "docid": "1623798", "title": "", "text": "171 F.Supp. 283, opinion by Mr. Justice Reed, (ret.) but it is subject to this servitude in the United States for the purpose of regulating commerce. The right of the United States in the air space above the surface of the United States was carefully stated in Braniff Airways, Inc. v. Nebraska State Board, supra, from which I quote, 347 U.S. at pages 595-597, 74 S.Ct. at page 761: “These Federal Acts regulating air commerce are bottomed on the commerce power of Congress, not on national ownership of the navigable air space, as distinguished from sovereignty. In reporting the bill which became the Air Commerce Act, it was said: “ ‘The declaration of what constitutes navigable air space is an exercise of the same source of power, the interstate commerce clause, as that under which Congress has long declared in many acts what constitutes navigable or nonnavigable waters. The public right of flight in the navigable air space owes its source to the same constitutional ba-sis which, under decisions of the Supreme Court, has given rise to a public easement of navigation in the navigable waters of the United States, regardless of the ownership of the adjacent or subjacent soil.’ H.R.Rep. No. 572, 69th Cong., 1st Sess., p. 10. “The commerce power, since Gibbons v. Ogden, 9 Wheat. 1, 193, 6 L.Ed. 23, has comprehended navigation of streams. Its breadth covers all commercial intercourse. But the federal commerce power over navigable streams does not prevent state action consistent with that power. Gilman v. City of Philadelphia, 3 Wall. 713, 729, 18 L.Ed. 96. Since, over streams, Congress acts by virtue of the commerce power, the sovereignty of the state is not impaired. State of Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508, 534, 61 S.Ct. 1050, 85 L.Ed. 1487. The title to the beds and the banks are in the states and the riparian owners, subject to the federal power over navigation.” Cf. Matson v. United States, supra. It may be said, therefore, on the analogy of the public roads and navigable waters, that while the" }, { "docid": "16687000", "title": "", "text": "on this court. C. The Navigational Servitude The nation’s navigable waters have always been considered “public property” and since the early days of the nation have been under the exclusive control of the federal government under the Commerce Clause. Gilman v. Philadelphia, 70 U.S. (3 Wall.) 713, 724-25, 18 L.Ed. 96 (1866); Gibbons v. Ogden, 22 U.S. (9 Wheat) 1, 6 L.Ed 23 (1824). The general scope of the government’s navigational servitude has been explained by the Supreme Court as follows: This power to regulate navigation confers upon the United States a “dominant servitude,” FPC v. Niagara Mohawk Power Corp., 347 U.S. 239, 249 [74 S.Ct. 487, 493, 98 L.Ed. 666] (1954), which extends to the entire stream and the stream bed below ordinary high-water mark. The proper exercise of this power is not an invasion of any private property rights in the stream or the lands underlying it, for the damage sustained does not result from taking property from riparian owners within the meaning of the Fifth Amendment but from the lawful exercise of a power to which the interests of riparian owners have always been subject. United States v. Chicago, M., St. P. & P.R. Co., 312 U.S. 592, 596-597 [61 S.Ct. 772, 775, 85 L.Ed. 1064] (1941); (other citation omitted). United States v. Rands, 389 U.S. 121, 123, 88 S.Ct. 265, 267, 19 L.Ed.2d 329 (1967); see also United States v. Cherokee Nation, 480 U.S. 700, 107 S.Ct. 1487, 1490, 94 L.Ed.2d 704 (1987). Thus, the government’s navigational servitude is a dominant servitude which reflects the superior interest of the United States in navigation and the nation’s navigable waters. United States v. Twin City Power Co., 350 U.S. 222, 224, 76 S.Ct. 259, 261, 100 L.Ed. 240 (1956). In United States v. Chicago, Milwaukee, St. Paul & Pacific R.R., 312 U.S. 592, 596-597, 61 S.Ct. 772, 775, 85 L.Ed. 1064 (1941) (hereinafter Chicago, Milwaukee), the Supreme Court stressed that “the determination of the necessity for a given improvement of navigable capacity, and the character and extent of it, is for Congress alone.... [T]he rights of the title" }, { "docid": "9804226", "title": "", "text": "to the extent necessary, of all the navigable waters of the United States which are accessible from a State other than those in which they lie.” Gilman v. Philadelphia, 70 U.S. (3 Wall.) 713, 724-25, 18 L.Ed. 96 (1866). See also Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 190, 6 L.Ed. 23 (1824) (“[a]ll America understands, and has uniformly understood, the word ‘commerce,’ to comprehend navigation”). Since Gibbons v. Ogden, the authority to regulate waterways under the commerce clause has been extended beyond control over waters navigable in fact to nonnavigable tributaries, waters which were once navigable in fact but are no longer so, and water neither formerly nor presently navigable but which may be made navigable by reasonable improvements. This expansion of the power to regulate navigable waters parallels, and is coextensive with, the expansion of the power to regulate commerce generally. In United States v. Appalachian Electric Power Co., 311 U.S. 377, 61 S.Ct. 291, 85 L.Ed. 243 (1940), the respondent power company argued that the government may regulate water rights “only in so far as necessary to protect navigation or navigable capacity.” Id. at 393, 61 S.Ct. at 291. The Court rejected such a limited view and found that Congress had the authority under the commerce clause to require riparian land owners to obtain a license prior to the construction of dams even where the river was not, nor ever had been, navigable but could become navigable through reasonable congressionally authorized improvements. [I]t cannot properly be said that the constitutional power of the United States over its waters is limited to control for navigation. By navigation respondent means no more than operation of boats and improvement of the waterway itself. In truth the authority of the United States is the regulation of commerce on its waters. Navigability, in the sense just stated, is but a part of this whole. Flood protection, watershed development, recovery of the cost of improvements through utilization of power are likewise parts of commerce control.... [The authority to regulate waterways] is as broad as the needs of commerce.... The point is that" }, { "docid": "11298097", "title": "", "text": "was insufficient to protect the United States from liability. Finding that “the assertion of a navigational servitude on particular waters acknowledges only that the property owner’s right to use these waters is shared with the public at large,” id., at 877, the court believed that the effect of the navigational servitude varied with the owner’s intended use: “When the exercise of that public power affects private ownership rights not connected to a navigational use, the court must balance the public and private interests to decide whether just compensation is due.” Ibid. Applying this test, the court concluded that though the Cherokee Nation could not interfere with the United States’ exercise of the navigational servitude, it had a right to compensation for any consequent loss of property or diminution in value. We think the Court of Appeals erred in formulating a balancing test to evaluate this assertion of the navigational servitude. No such “balancing” is required where, as here, the interference with in-stream interests results from an exercise of the Government’s power to regulate navigational uses of “the deep streams which penetrate our country in every direction.” Gibbons v. Ogden, 9 Wheat. 1, 195 (1824). Though “this Court has never held that the navigational servitude creates a blanket exception to the Takings Clause whenever Congress exercises its Commerce Clause authority to promote navigation,” Kaiser Aetna v. United States, 444 U. S. 164, 172 (1979), there can be no doubt that “[t]he Commerce Clause confers a unique position upon the Government in connection with navigable waters.” United States v. Rands, 389 U. S. 121, 122 (1967). It gives to the Federal Government “a ‘dominant servitude/ FPC v. Niagara Mohawk Power Corp., 347 U. S. 239, 249 (1954), which extends to the entire stream and the stream bed below ordinary high-water mark. The proper exercise of this power is not an invasion of any private property rights in the stream or the lands underlying it, for the damage sustained does not result from taking property from riparian owners within the meaning of the Fifth Amendment but from the lawful exercise of a power" }, { "docid": "21216297", "title": "", "text": "water mark.” 33 C.F.R. § 329.11(a); see also United States v. Rands, 389 U.S. 121, 123, 88 S.Ct. 265, 19 L.Ed.2d 329 (1967). A river’s ordinary high water mark is set at “the line of the shore established by the fluctuations of water .... ” 33 C.F.R. § 329.11(a)(1). It is ascertained by “physical characteristics such as a clear, natural line impressed on the bank; ... changes in the character of the soil; destruction of terrestrial vegetation; ... or other appropriate means that consider the characteristics of the surrounding areas.” Id. The navigational servitude does not burden land that is only submerged when the river floods. Oklahoma v. Texas, 260 U.S. 606, 632, 43 S.Ct. 221, 67 L.Ed. 428 (1923); United States v. Harrell, 926 F.2d 1036, 1041-43 (11th Cir.1991); United States v. Claridge, 416 F.2d 933, 934 (9th Cir.1970). As implied by its very name and the constitutional provision from which it arises, the federal navigational servitude is concerned with navigational rights and commerce. See Montana v. United States, 450 U.S. 544, 551, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981) (“The State’s power over the beds of navigable waters remains subject to only one limitation: the paramount power of the United States to ensure that such waters remain free to interstate and foreign commerce.”); Kaiser Aetna v. United States, 444 U.S. 164, 177, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979) (“The navigational servitude ... gives rise to an authority in the Government to assure that such streams retain their capacity to serve as continuous highways for the purpose of navigation in interstate commerce.”); United States v. Chi. M., St.P.& P.R. Co., 312 U.S. 592, 596, 61 S.Ct. 772, 85 L.Ed. 1064 (1941) (“[T]he rights of the title holder are subordinate to the dominant power of the federal Government in respect of navigation.”) (citing Gibson v. United States, 166 U.S. 269, 272, 17 S.Ct. 578, 41 L.Ed. 996 (1897)). Neither navigation nor commerce encompass recreational fishing. See Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 482-84, 108 S.Ct. 791, 98 L.Ed.2d 877 (1988) (noting that fishing is not related to" }, { "docid": "20803", "title": "", "text": "government has established such connection with interstate commerce and that these waters, including wetlands, are waters of [the] United States. The Clean Water Act prohibits the discharge, without a permit, of pollutants into “navigable waters.” 33 U.S.C. §§ 1311(a), 1362(12)(A). While the regulatory power of Congress over waters that are navigable in fact is well established, see, e.g., United States v. Rands, 389 U.S. 121, 122-23, 88 S.Ct. 265, 266, 19 L.Ed.2d 329 (1967) (“The Commerce Clause confers a unique position upon the Government in connection with navigable waters. ‘The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States....’ ” (quoting Gilman v. Philadelphia, 70 U.S. (3 Wall.) 713, 724-25, 18 L.Ed. 96 (1865)), the Clean Water Act defines “navigable waters” as “the waters of the United States,” 33 U.S.C. § 1362(7). Construing the Clean Water Act, the Supreme Court has indicated that in defining “navigable waters” as “waters of the United States,” Congress intended “to exercise its powers under the Commerce Clause to regulate at least some waters that would not be deemed ‘navigable’ under the classical understanding of that term.” United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 133, 106 S.Ct. 455, 462, 88 L.Ed.2d 419 (1985). Accordingly, the power of Congress to regulate the discharge of pollutants into at least some nonnavigable waters is indisputable, but the limits of this power are far from clear. As explained in Lopez, Congress can clearly regulate discharges of pollutants that substantially affect interstate commerce. See 514 U.S. 549, 558-59, 115 S.Ct. 1624, 1629-30, 131 L.Ed.2d 626 (1995). Presumably, Congress may also regulate the discharge of pollutants into nonnavigable waters to the extent necessary to protect the use or potential use of navigable waters as channels or instrumentalities of interstate commerce, although the extent of that power is not entirely clear. Finally, it is arguable that Congress has the power to regulate the discharge of pollutants into any waters that themselves flow across state lines, or connect to waters that do so, regardless of" }, { "docid": "6768296", "title": "", "text": "“a ‘dominant servitude,’ which extends to the entire stream and the stream bed below ordinary high-water mark. The proper exercise of this power is not an invasion of any private property right's in the stream or the lands underlying it, for the damage sustained does not result from taking property from riparian owners within the meaning of the Fifth Amendment but from the lawful exercise of a power to which the interests of riparian owners have always been subject.” . Id. at 704, 107 S.Ct. at 1489 (quoting United States v. Rands, 389 U.S. 121, 123, 88 S.Ct. 265, 267, 19 L.Ed.2d 329 (1967)) (citation omitted). The Court added that although “this Court has never held that the navigational servitude creates a blanket exception to the Takings Clause whenever Congress exercises its Commerce Clause authority to promote navigation,” Kaiser Aetna v. United States, 444 U.S. 164, 172 [100 S.Ct. 383, 389, 62 L.Ed.2d 332] (1979), there can be no doubt that “[t]he Commerce Clause confers a unique position upon the Government in connection with navigable waters.” United States v. Rands, 389 U.S. 121, 122 [88 S.Ct. 265, 266, 19 L.Ed.2d 329] (1967). Id. The Court concluded: [W]e have repeatedly held that the navigational servitude applies to all holders of riparian and riverbed interests. * * * * * * As we have explained, the tribal interests at issue here simply do not include the right to be free from the navigational servitude, for exercise of the servitude is “not an invasion of any private property rights in the stream or the lands underlying it____ United States v. Rands, 389 U.S. at 123 [88 S.Ct. at 267]. Id. at 706, 707-08, 107 S.Ct. at 1491, 1492. Similarly, one of our predecessor courts has repeatedly held the public right of navigation is a dominant interest and that the United States’ authority over navigable waters is supreme. See, e.g. Gordon v. United States, 211 Ct.Cl. 310, 311, 546 F.2d 430 (1976), cert. denied, 430 U.S. 930, 97 S.Ct. 1549, 51 L.Ed.2d 774 (1977); Goose Creek Hunting Club, Inc. v. United States, 518 F.2d" }, { "docid": "14130426", "title": "", "text": "that comprises nearly 55% of United States seafood production and accounts for approximately 40% of Alaska’s international exports. Congress did not relinquish its constitutional authority and confer upon states title to, or exclusive regulatory authority over, fish in navigable waters within state boundaries by enacting the Submerged Lands Act (SLA), 43 U.S.C. §§ 130Í-1315. Rather, Congress expressly “retain[ed] all its ... rights in and powers of regulation and control of ... navigable waters for the constitutional purposes of commerce.... ” Id. § 1314(a); see also United States v. Rands, 389 U.S. 121, 127, 88 S.Ct. 265, 19 L.Ed.2d 329 (1967) (concluding that the SLA “left congressional power over commerce ... precisely where it found [it]”); Alaska v. United States, 754 F.2d 851, 853 n. 3 (9th Cir.1985) (holding that state ownership of submerged lands remains “subject to Congress’ paramount power over navigable waters under the Commerce Clause”). The SLA conferred upon states concurrent regulatory authority over navigable waters and the natural resources within them. Barber v. Hawaii 42 F.3d 1185, 1190-91 (9th Cir.1994). Where federal and state regulations conflict, federal authority preempts state authority. See Douglas, 431 U.S. at 286-87, 97 S.Ct. 1740. B. ANILCA’s Protection of Subsistence Fishing. In ANILCA, Congress invoked its “constitutional authority under the property clause and the commerce clause to protect and provide the opportunity for continued subsistence uses on the public lands.... ” 16 U.S.C. § 3111(4). The Property Clause alone is sufficient justification for federal regulation of federal waters. See U.S. Const, art. IV, § 3, cl. 2; Utah Div. of State Lands v. United States, 482 U.S. 193, 201, 107 S.Ct. 2318, 96 L.Ed.2d 162 (1987) (observing that the Property Clause grants the United States plenary power to regulate federal lands). Congress’s invocation of the Commerce Clause indicates that it intended ANILCA to regulate not just waters over which it traditionally has exercised regulatory authority, but waters over which the State traditionally has exercised regulatory authority as well. Our determination of the breadth and scope of Congress’s exercise of its commerce power, like all inquiries of statutory-interpretation, begins with and is circumscribed" }, { "docid": "21216296", "title": "", "text": "is a navigable waterway of the United States. They contend that a federal navigational servitude burdens the Property, creating a public right to fish there. Plaintiffs also assert that there is a corresponding federal common law right to fish on the navigable waters of the United States. In response, Sheriff Shumate argues that: (1) the Property is not burdened by any federal easements because the Property is not a navigable waterway in fact; (2) the federal navigational servitude does not create a right to fish; and (3) there is no federal common law affecting riparian land owners’ property interests. It is well established that the Commerce Clause of the United States Constitution gives the federal government a “dominant servitude” over the navigable waters of the United States. United States v. Cherokee Nat. of Okla., 480 U.S. 700, 704, 107 S.Ct. 1487, 94 L.Ed.2d 704 (1987) (citation omitted). The so-called navigational servitude extends “laterally to the entire water surface and bed of a navigable waterway, which includes all the land and waters below the ordinary high water mark.” 33 C.F.R. § 329.11(a); see also United States v. Rands, 389 U.S. 121, 123, 88 S.Ct. 265, 19 L.Ed.2d 329 (1967). A river’s ordinary high water mark is set at “the line of the shore established by the fluctuations of water .... ” 33 C.F.R. § 329.11(a)(1). It is ascertained by “physical characteristics such as a clear, natural line impressed on the bank; ... changes in the character of the soil; destruction of terrestrial vegetation; ... or other appropriate means that consider the characteristics of the surrounding areas.” Id. The navigational servitude does not burden land that is only submerged when the river floods. Oklahoma v. Texas, 260 U.S. 606, 632, 43 S.Ct. 221, 67 L.Ed. 428 (1923); United States v. Harrell, 926 F.2d 1036, 1041-43 (11th Cir.1991); United States v. Claridge, 416 F.2d 933, 934 (9th Cir.1970). As implied by its very name and the constitutional provision from which it arises, the federal navigational servitude is concerned with navigational rights and commerce. See Montana v. United States, 450 U.S. 544, 551, 101" }, { "docid": "1884149", "title": "", "text": "1st Sess., p. 10. The Civil Aeronautics Act of 1938 gives no support to a different view. After the enactment of the Air Commerce Act, more than twenty states adopted the Uniform Aeronautics Act. It had three provisions indicating that the states did not consider their sovereignty affected by the National Act except to the extent that the states had ceded that sovereignty by constitutional grant. The recommendation of the National Conference of Commissioners on Uniform State Laws to the states to enact the Act was withdrawn in 1943. Where adopted, however, it continues in effect. See United States v. Praylou, 4 Cir., 208 F.2d 291. * * * “These Federal Acts regulating air commerce are bottomed on the commerce power of Congress, not on national ownership of the navigable air space, as distinguished from sovereignty. In reporting the bill which became the Air Commerce Act, it was said: “ ‘ The declaration of what constitutes navigable air space is an exercise of the same source of power, the interstate commerce clause, as that under which Congress has long declared in many acts what constitutes navigable or non-navigable waters. The public right of flight in the navigable air space owes its source to the same constitutional basis which, under decisions of the Supreme Court, has given rise to a public easement of navigation in the navigable waters of the United States, regardless of the ownership of the adjacent or subjacent soil.’ H.R.Rep. No. 572, 69th Cong. 1st Sess., p. 10. “The commerce power, since Gibbons v. Ogden, 9 Wheat. 1, 193, 6 L.Ed. 23, has comprehended navigation of streams. Its breadth covers all commercial intercourse. But the federal commerce power over navigable streams does not prevent state action consistent with that power. Gilman v. Philadelphia, 3 Wall. 713, 729, 18 L.Ed. 96. Since, over streams, Congress acts by virtue of the commerce power, the sovereignty of the state is not impaired. State of Oklahoma v. Guy F. Atkinson Co., 313 U.S. 508, 534, 61 S.Ct. 1050, 1063, 85 L.Ed. 1487. The title to the beds and the banks are in" }, { "docid": "6768295", "title": "", "text": "navigational servitude was legally superior to the Tribes’ claims. The Tenth Circuit in that case had affirmed the District Court’s grant of summary judgment for the Cherokee Nation rejecting the position that the navigational servitude protected the Government from liability for such a taking and finding that “the United States did not reserve its navigational servitude....” Id. at 702, 107 S.Ct. at 1489. The Tenth Circuit, however, found that although the Government had in fact retained a navigational servitude in the Arkansas River, the court is required to balance the public and private interests at issue to determine if compensation for the taking of the riverbed lands was due. Thus, the Tenth Circuit ruled that the Cherokee Nation could, under the Fifth Amendment, recover the value of certain riverbed lands taken by the Government as part of a navigation project which included dredging the channel of the Arkansas River. The Supreme Court reversed the Tenth Circuit’s judgment and remanded, rejecting its use of a balancing test and stating that the Commerce Clause gives the Government “a ‘dominant servitude,’ which extends to the entire stream and the stream bed below ordinary high-water mark. The proper exercise of this power is not an invasion of any private property right's in the stream or the lands underlying it, for the damage sustained does not result from taking property from riparian owners within the meaning of the Fifth Amendment but from the lawful exercise of a power to which the interests of riparian owners have always been subject.” . Id. at 704, 107 S.Ct. at 1489 (quoting United States v. Rands, 389 U.S. 121, 123, 88 S.Ct. 265, 267, 19 L.Ed.2d 329 (1967)) (citation omitted). The Court added that although “this Court has never held that the navigational servitude creates a blanket exception to the Takings Clause whenever Congress exercises its Commerce Clause authority to promote navigation,” Kaiser Aetna v. United States, 444 U.S. 164, 172 [100 S.Ct. 383, 389, 62 L.Ed.2d 332] (1979), there can be no doubt that “[t]he Commerce Clause confers a unique position upon the Government in connection with navigable" }, { "docid": "9804227", "title": "", "text": "in so far as necessary to protect navigation or navigable capacity.” Id. at 393, 61 S.Ct. at 291. The Court rejected such a limited view and found that Congress had the authority under the commerce clause to require riparian land owners to obtain a license prior to the construction of dams even where the river was not, nor ever had been, navigable but could become navigable through reasonable congressionally authorized improvements. [I]t cannot properly be said that the constitutional power of the United States over its waters is limited to control for navigation. By navigation respondent means no more than operation of boats and improvement of the waterway itself. In truth the authority of the United States is the regulation of commerce on its waters. Navigability, in the sense just stated, is but a part of this whole. Flood protection, watershed development, recovery of the cost of improvements through utilization of power are likewise parts of commerce control.... [The authority to regulate waterways] is as broad as the needs of commerce.... The point is that navigable waters are subject to national planning and control in the broad regulation of commerce granted the Federal Government. Id. at 426-27, 61 S.Ct. at 308. Appalachian Electric’s expansive view of navigation is consistent with the Court’s expansive interpretations of commerce in other areas during the same period. Cf. N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893 (1937), United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609 (1941), Wickard v. Filbum, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942). See Kaiser Aetna, 444 U.S. at 174, 100 S.Ct. at 389; Morreale, Federal Power in Western Waters: The Navigation Power and the Rule of No Compensation, 3 NatResources J. 1, 5-6 nn. 22, 23 (1963). Though similarly grounded in the commerce clause, Kaiser Aetna, 444 U.S. at 177, 100 S.Ct. at 391, United States v. Rands, 389 U.S. 121, 122, 88 S.Ct. 265, 266, 19 L.Ed.2d 329 (1967), the navigational servitude is distinct from the power to regulate navigable waters. Kaiser Aetna," }, { "docid": "9804228", "title": "", "text": "navigable waters are subject to national planning and control in the broad regulation of commerce granted the Federal Government. Id. at 426-27, 61 S.Ct. at 308. Appalachian Electric’s expansive view of navigation is consistent with the Court’s expansive interpretations of commerce in other areas during the same period. Cf. N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893 (1937), United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609 (1941), Wickard v. Filbum, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942). See Kaiser Aetna, 444 U.S. at 174, 100 S.Ct. at 389; Morreale, Federal Power in Western Waters: The Navigation Power and the Rule of No Compensation, 3 NatResources J. 1, 5-6 nn. 22, 23 (1963). Though similarly grounded in the commerce clause, Kaiser Aetna, 444 U.S. at 177, 100 S.Ct. at 391, United States v. Rands, 389 U.S. 121, 122, 88 S.Ct. 265, 266, 19 L.Ed.2d 329 (1967), the navigational servitude is distinct from the power to regulate navigable waters. Kaiser Aetna, 444 U.S. at 174-75, 100 S.Ct. at 389-90, Swanson v. United States, 789 F.2d 1368, 1371-72 (9th Cir.1986). Described as a “dominant servitude,” United States v. Cherokee Nation of Oklahoma, 480 U.S. 700, 704, 107 S.Ct. 1487, 1490, 94 L.Ed.2d 704 (1987), Federal Power Comm’n v. Niagara Mohawk Power Corp., 347 U.S. 239, 249, 74 S.Ct. 487, 493, 98 L.Ed. 666 (1954), a “plenary authority,” South Carolina v. Georgia, 93 U.S. 4, 10, 23 L.Ed. 782 (1876), and a “superior navigation easement,” United States v. Grand River Dam Authority, 363 U.S. 229, 231, 80 S.Ct. 1134, 1136, 4 L.Ed.2d 1186 (1960), the navigational servitude generally relieves the government of the obligation to pay compensation for acts interfering with the ownership of riparian, littoral, or submerged lands which, if not for the fact that a waterway is involved, would require compensation under the fifth amendment. See Tarlock, Law of Water Rights and Resources § 9.04[2][a] (1990). This “rule of no compensation” is based in part on the tenuous nature of private property ownership of riparian, littoral," }, { "docid": "684765", "title": "", "text": "described, interfere with their personal rights and are contrary to the “Foraker Act”, 48 U.S.C. § 746 and the Federal Relations Act, 48 U.S.C. § 731 et seq. Article I, § 8, Clause 3 of the United States Constitution accords to the Congress the power: “To regulate Commerce with foreign Nations and among the several states and with the Indian Tribes.” Chief Justice Marshall laid down the broad outlines of the commerce power in Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 195, 6 L.Ed. 23 (1824): “We are now arrived at the inquiry— what is this power? It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution.” In 1865, the Supreme Court in Gilman v. Philadelphia, 70 U.S. (3 Wall.) 713, 724, 18 L.Ed. 96, ruled that navigable waters are public property of the Nation: “Commerce includes navigation. The power to regulate commerce comprehends the control for that purpose and to the extent necessary of all the navigable waters of the United States which are accessible from a State other than those in which they lie. For this purpose they are the public property of the Nation and subject to all the requisite legislation by Congress.” Further, the Supreme Court has consistently maintained that, insofar as the control over commerce was concerned, more specifically the Commerce Clause, plenary power remained in. Congress. See, National League of Cities v. Usery, 426 U.S. 833, 840, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976); United States v. Wrightwood Dairy Co., 315 U.S. 110, 62 S.Ct. 523, 86 L.Ed. 726 (1942). The military’s operational restrictions at Vieques were issued by the authority of the Secretary of the Army under the Rivers and Harbors Act of 1889, 33 U.S.C. § 1 et seq. Sections 1 and 3 of Title 33 grant the authority to restrict access to waters in areas like Vieques. Generally, they commend to" }, { "docid": "6768347", "title": "", "text": "project damaged sand and gravel deposits in the riverbed which was owned by the Tribe. As explained therein: Though “this Court has never held that the navigational servitude creates a blanket exception to the Takings Clause whenever Congress exercises its Commerce Clause authority to promote navigation,” Kaiser Aetna v. United States, 444 U.S. 164, 172 [100 S.Ct. 383, 389, 62 L.Ed.2d 332] (1979), there can be no doubt that “[t]he Commerce Clause confers a unique position upon the Government in connection with navigable waters.” United States v. Rands, 389 U.S. 121, 122 [88 S.Ct. 265, 266, 19 L.Ed.2d 329] (1967). It gives to the Federal Government “a ‘dominant servitude,’ FPC v. Niagara Mohawk Power Corp., 347 U.S. 239, 249 [74 S.Ct. 487, 493, 98 L.Ed. 666] (1954), which extends to the entire stream and the stream bed below ordinary highwater mark. The proper exercise of this power is not an invasion of any private property rights in the stream or the lands underlying it, for the damage sustained does not result from taking property from riparian owners within the meaning of the Fifth Amendment but from the lawful exercise of a power to which the interests of riparian owners have always been subject.” Rands, supra, at 123 [88 S.Ct. at 267]. See also United States v. Kansas City Life Ins. Co., 339 U.S. 799, 808 [70 S.Ct. 885, 890, 94 L.Ed. 1277] (1950); Scranton v. Wheeler, 179 U.S. 141, 163 [21 S.Ct. 48, 57, 45 L.Ed. 126] (1900). Id., 480 U.S. at 704, 107 S.Ct. at 1489-1490 (footnotes omitted). As further explained, to overcome the servitude imposed on all owners of riverbed rights in navigable waters, there must be a waiver. Moreover, the Court stated: “[s]uch a waiver of sovereign authority will not be implied, but instead must be ‘surrendered in unmistakable terms.’ ” Bowen v. Public Agencies Opposed to Social Security Entrapment, 477 U.S. 41, 52 [106 S.Ct. 2390, 2397, 91 L.Ed.2d 35] (1986), quoting Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 148 [102 S.Ct. 894, 907, 71 L.Ed.2d 21] (1982). Respondent can point to no such terms." }, { "docid": "20802", "title": "", "text": "argue that the regulation and jury instructions are fatally flawed under Lopez because of their invocation of “potential” uses and effects on commerce, they do not challenge the constitutionality of the Clean Water Act itself. In instructing the jury based upon 33 C.F.R. § 328.3(a)(3) (1993), the district court in this case said: The government must prove that these waters have some potential connection with interstate commerce. If you find, ladies and gentlemen, beyond a reasonable doubt that these waters were or could be used by visitors from other states for recreational or other purposes, or that fish or shellfish are or could be taken from these waters and sold in interstate or foreign commerce, or that these waters were used or could have been used for industrial purposes by industries in interstate commerce, or that these waters were subject to the ebb and flow of the tide or that the use, degradation or construction [sic] [destruction?] of such waters could affect interstate commerce, then I instruct you as a matter of law that the government has established such connection with interstate commerce and that these waters, including wetlands, are waters of [the] United States. The Clean Water Act prohibits the discharge, without a permit, of pollutants into “navigable waters.” 33 U.S.C. §§ 1311(a), 1362(12)(A). While the regulatory power of Congress over waters that are navigable in fact is well established, see, e.g., United States v. Rands, 389 U.S. 121, 122-23, 88 S.Ct. 265, 266, 19 L.Ed.2d 329 (1967) (“The Commerce Clause confers a unique position upon the Government in connection with navigable waters. ‘The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States....’ ” (quoting Gilman v. Philadelphia, 70 U.S. (3 Wall.) 713, 724-25, 18 L.Ed. 96 (1865)), the Clean Water Act defines “navigable waters” as “the waters of the United States,” 33 U.S.C. § 1362(7). Construing the Clean Water Act, the Supreme Court has indicated that in defining “navigable waters” as “waters of the United States,” Congress intended “to exercise its powers under" }, { "docid": "16687001", "title": "", "text": "a power to which the interests of riparian owners have always been subject. United States v. Chicago, M., St. P. & P.R. Co., 312 U.S. 592, 596-597 [61 S.Ct. 772, 775, 85 L.Ed. 1064] (1941); (other citation omitted). United States v. Rands, 389 U.S. 121, 123, 88 S.Ct. 265, 267, 19 L.Ed.2d 329 (1967); see also United States v. Cherokee Nation, 480 U.S. 700, 107 S.Ct. 1487, 1490, 94 L.Ed.2d 704 (1987). Thus, the government’s navigational servitude is a dominant servitude which reflects the superior interest of the United States in navigation and the nation’s navigable waters. United States v. Twin City Power Co., 350 U.S. 222, 224, 76 S.Ct. 259, 261, 100 L.Ed. 240 (1956). In United States v. Chicago, Milwaukee, St. Paul & Pacific R.R., 312 U.S. 592, 596-597, 61 S.Ct. 772, 775, 85 L.Ed. 1064 (1941) (hereinafter Chicago, Milwaukee), the Supreme Court stressed that “the determination of the necessity for a given improvement of navigable capacity, and the character and extent of it, is for Congress alone.... [T]he rights of the title holder are subordinate to the dominant power of the federal Government in respect of navigation.” (Footnotes omitted.) Thus, upon the determination of Congress to improve navigation, the navigational servitude defines the appropriate boundaries within which the United States can assert its power to supersede private ownership interests without creating an obligation to pay just compensation under the Eminent Domain Clause of the Fifth Amendment. D. The Scope of the Navigational Servitude The holdings of the Supreme Court and the other federal courts make clear that no compensation is owed by the government for injury or destruction of a riparian owner’s property which is located in the bed of a navigable stream. For example, in the Chicago, Milwaukee case, the Supreme Court rejected the respondent railroad’s claims seeking compensation for damage to its railway embankments located between the high- and low-water marks of the Mississippi River which was caused by raising the river’s water level to improve navigation. 312 U.S. at 598, 61 S.Ct. at 776; see also Greenleaf Johnson Lumber Co. v. Garrison, 237 U.S." }, { "docid": "1623799", "title": "", "text": "rise to a public easement of navigation in the navigable waters of the United States, regardless of the ownership of the adjacent or subjacent soil.’ H.R.Rep. No. 572, 69th Cong., 1st Sess., p. 10. “The commerce power, since Gibbons v. Ogden, 9 Wheat. 1, 193, 6 L.Ed. 23, has comprehended navigation of streams. Its breadth covers all commercial intercourse. But the federal commerce power over navigable streams does not prevent state action consistent with that power. Gilman v. City of Philadelphia, 3 Wall. 713, 729, 18 L.Ed. 96. Since, over streams, Congress acts by virtue of the commerce power, the sovereignty of the state is not impaired. State of Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508, 534, 61 S.Ct. 1050, 85 L.Ed. 1487. The title to the beds and the banks are in the states and the riparian owners, subject to the federal power over navigation.” Cf. Matson v. United States, supra. It may be said, therefore, on the analogy of the public roads and navigable waters, that while the owner of property has the right of access to it by air, this right of access is subject to the dominant servitude in the United States to regulate commerce in the air. But if a ban on the flight of planes within a certain area is not designed to promote commerce, the defendant must respond in damages for the taking of plaintiffs’ means of access to their properties by .air, long recognized and long used theretofore. It is only by virtue of the clause of the Constitution, art. 1, § 8, cl. 3, giving the Federal Government the power to regulate commerce that the Congress is authorized to assert sovereignty in the air space, and, hence, it has a dominant interest therein only for the purpose of regulating commerce. While the airban was promulgated pursuant to section 4 of the Air Commerce Act of 1926 (44 Stat. 568, 49 U.S.C.A. § 174), it is manifest — indeed, it is conceded by the defendant — -that it was not promulgated to promote air commerce or for" }, { "docid": "12951191", "title": "", "text": "navigational servitude of the United States does not extend beyond the high-water mark.” According to the Army Corps of Engineers’ regulations, federal regulatory jurisdiction over rivers and lakes, i.e., the navigational servitude of the United States, extends laterally to the entire water surface and bed of a navigable waterbody, which includes all the land and waters below the ordinary high water mark. Jurisdiction thus extends to the edge (as de termined above) of all such waterbodies, even though portions of the waterbody may be extremely shallow, or obstructed by shoals, vegetation or other barriers. It also is clear that the government’s navigational servitude cannot extend over the bed of an inland body of water. Nor does a river’s ordinary high water mark encompass the river’s peak flow or flood stages. In fact, this restriction was explicitly stated in a prior version of the regulations, but has since been omitted. As discussed below, we explicitly reject any attempt by appellants to extend the government's navigational servitude beyond the Tombigbee’s navigable river “bed,” as that term has been defined by the federal courts. The navigable waters of the United States are public property. As one court of appeals recently noted, [t]he nation’s navigable waters have always been considered “public property” and since the early days of the nation have been under the exclusive control of the federal government under the Commerce Clause. Gilman v. Philadelphia, 70 U.S. (3 Wall.) 713, 724-25, 18 L.Ed. 96 (1866); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L.Ed. 23 (1864). Because the navigational servitude of the United States encompasses “the entire stream and the stream bed below ordinary high-water mark,” the location of the “bed” of the Tombigbee River, and specifically the river’s “ordinary high water mark” are crucial to our determination whether appellants have a right of public access to Lewis Creek. If the navigational servitude of the Tombigbee River, as a “navigable waterbody,” encompasses Lewis Creek, Lewis Creek is public property and appellants may, subject to state law, have a right of public access. Thus, the location of the Tombigbee River’s “ordinary high" } ]

[ { "docid": "23524763", "title": "", "text": "be terminated, then those benefits do not vest. Ryan, supra. Where a contract of set duration is silent on the issue of vesting, we presume that benefits were not intended to vest. Senn v. United Dominion Industries, Inc., 951 F.2d 806, 816 (7th Cir.1992); Bidlack, 993 F.2d at 607. But that presumption can be rebutted by extrinsic evidence. Id.; see also AM International, 44 F.3d at 575-77. These principles inform our consideration of Murphy’s claims, and the evidence he has offered to support them. A. Murphy’s Contract Claims Based on the CBA and the Plan The documents relevant to Murphy’s contract claims are the CBA and the Plan. In Article XXIII, the CBA provides that certain specified agreements, including the Plan, “will remain in effect during the term of this agreement all as heretofore agreed upon and revised.” Article XXIII also provides that “[t]he language of such agreements is separate from and not a part of this agreement.” Finally, the CBA provides that it: together with ... any other matter incorporated herein by reference, concludes all collective bargaining between the parties for the duration of the Agreement, except as may otherwise be expressly provided for in this Agreement or any supplement hereto, or except as to such matters or amendments which may mutually be agreed to in writing by the parties. Article XXV § 25.1. For its part, the Plan states that it is maintained pursuant to the collective bargaining agreement between Keystone and ISWA. It also states that retiree coverage terminates “upon the date the Plan is terminated or amended to terminate the Retiree’s coverage” and that coverage for a retiree’s dependents terminates upon “[t]he date the Retiree’s coverage terminates.” 1. Murphy’s claim under the CBA Keystone argues that Murphy’s benefits did not vest under the CBA because it clearly indicates that the benefits provided by the Plan will remain in effect only for the duration of the CBA. As Keystone notes, the changes it announced in February 1993 did not take effect until after May 3, 1993, when the CBA expired. Thus, the changes did not violate the" } ]

[ { "docid": "6553587", "title": "", "text": "to grant a preliminary injunction); and (6) Golden v. Kelsey-Hayes Co., 954 F.Supp. 1173 (E.D.Mich.1997) (Gadola J.) (granting summary judgment for retirees). Based on the Golden-Meridian precedents, which addressed either the same CBAs at issue here, or “virtually identical” language from other CBAs, the district court concluded that the “shall be continued thereafter” language from the Insurance Program created an enforceable promise of lifetime benefits. But because none of the decisions in the Golden-Meridian line of cases addressed the effect of the durational limitation imposed by § 8 of the Insurance Agreement, we will examine below the potential limiting effect of that provision. 2. Section 8 durational limitation The defendants have argued at every stage of this litigation that § 8 of the Insurance Agreement expressly limits retiree insurance coverage to the duration of the CBA. Section 8 provides as follows: This [Insurance] Agreement and [Insurance] Program as modified and supplemented by the [Insurance] Agreement shall continue in effect until the termination of the Collective Bargaining Agreement of which this is a part. Ins. Agreement at § 8. The district court rejected the defendants’ arguments regarding that section, characterizing § 8 as only a general durational clause. Cole, 515 F.Supp.2d at 802. In doing so, it noted the rule in this circuit that general dura-tional clauses cannot trump contractual promises of lifetime retiree healthcare benefits. Id. “[G]eneral durational provisions only refer to the length of the CBAs and not the period of time contemplated for retiree benefits. Absent specific dura-tional language referring to retiree benefits themselves, courts have held that the general durational language says nothing about those retiree benefits.” Yolton, 435 F.3d at 580-81 (citations and internal quotation marks omitted). The Yolton court interpreted similar “concurrent language” in the CBA at issue in that case as doing nothing to those employees who have already retired under the plan. The durational language only affects future retirees — that is, someone who retired after the expiration of a particular CBA would not be entitled to the previous benefits, but is rather entitled only to those benefits newly negotiated under a new" }, { "docid": "4020514", "title": "", "text": "company’s control could occur. Thus, Section I acts as an overriding preamble for both active and retired employees. As in Corrao, the parties’ practice of changing the contractual terms in succeeding agreements lends support to Auburn Gear’s claim that neither party understood the benefits to be permanent or inaltera-ble. See Corrao, 161 F.3d at 442 (“[The employer’s] behavior suggests that it did not believe that it was forbidden to change benefit levels for retirees. It shifted the package around, and it imposed various forms of managed care on the retirees.”). In the instant case, every three years, when the CBIA was renegotiated, the parties felt free to alter co-pays and other benefits. The retirees argue that the CBIA is implicitly extended beyond its three-year term by a clause that provides benefits for surviving spouses until their death or remarriage. This provision, however, refers to the eligibility of individuals to receive benefits under the agreement, not to the duration of the agreement. Surviving spouses were eligible to receive benefits only so long as the CBIA was in place. It is well established that “lifetime” benefits can be limited to the duration of a contract. We have previously found that where a reservation of rights clause coexists with a guarantee of lifetime benefits, “[w]e must resolve the tension between the lifetime benefits clause, and the plan termination and reservation of rights clauses, by giving meaning to all of them.... [Although the plan in its current iteration entitles retirees to health coverage for the duration of their lives and the lives of their eligible surviving spouses, the terms of the plan — including the plan’s continued existence — are subject to change at the will of [the employer].” UAW v. Rockford Powertrain, Inc., 350 F.3d 698, 703 (7th Cir.2003) (citations omitted); see also Vallone, 375 F.3d at 633. The provision in Section I of the CBIA, limiting benefits to the “period of this agreement,” is a reservation of rights clause. See Barnett, 436 F.3d at 834 (7th Cir.2006). At the end of each CBIA, lifetime benefits ceased and Auburn Gear was free to" }, { "docid": "2727925", "title": "", "text": "retirees shall end before their deaths. In fact, the Court has found that Defendants Greyhound and Armour never reserved any right to reduce or terminate medical benefits for retirees and their eligible dependents. Section 18.7(f)(ii) provides for lifetime medical benefits for surviving spouses of retirees who do not remarry, if a retiree dies and previously had selected the survivor benefit option. The Court believes that it is inconceivable that the Defendants Greyhound and Armour would maintain that they can reduce or terminate benefits for retirees at will when the contract specifies that a retiree’s spouse shall have lifetime medical benefits. See Policy v. Powell Pressed Steel Co., 770 F.2d 609, 616 (6th Cir.1985). The defendants contend that the contract termination clause, Article XXVI of the 1979 Master Agreement, allows the administrator to terminate the retiree’s health care benefits at the termination of the Agreement. It states: “This agreement shall remain in effect until Aug. 31, 1982, and from year to year thereafter____” The Court rejects the defendants’ contention. Such contract construction would nullify the more specific language regarding Section 18.7(f)(ii) which contemplates lifetime benefits. Furthermore, the case law from this circuit and other circuits holds that retiree health insurance benefits cannot be reduced or terminated by the plan administrator/employer where no such reduction or termination right was reserved or intended by the parties. In a similar class action filed against another meat packer, an Eighth Circuit panel held that retirees of the Dubuque Packing Company were entitled to lifetime health benefits under the 1979 collective bargaining agreement. Dubuque Packing Co., supra, 756 F.2d at 69-70. Like Armour retirees, there was evidence that past employees of Dubuque Packing were advised that they would receive lifetime benefits. Likewise, there was no evidence that the parties agreed to terminate retirees’ benefits at any time or that retirees’ benefits were tied to renewal of the collective bargaining agreements. In Yard-Man, supra, the Sixth Circuit has thoroughly analyzed the concept of retiree benefits in concluding that retiree health insurance benefits are “status benefits” whose lifetime duration may be implied both from the context of their" }, { "docid": "4969626", "title": "", "text": "Second, the insurance provision relating to retirees states that “[t]he company agrees to pay all such group insurance premiums required for the continuation of existing employee group insurance with respect to any em ployee [meeting certain retirement criteria].” (emphasis added). Also, unlike American Pad, there is no closely related provision contained in the Collective Bargaining Agreement which specifically limits the employer’s obligation to the term or duration of the contract. Finally, the limited extrinsic evidence on the negotiations surrounding the contract in this case indicates that the Union merely sought insurance benefits on the part of retirees equal to those of the present employees of Kurz-Kasch. (Young Aff. p. 1). In Heheman v. E. W. Scripps, 661 F.2d 1115 (6th Cir. 1981), the United States Court of Appeals for the Sixth Circuit recently addressed the question of whether a “scanner agreement” between the Cincinnati Post and the Typographical Union whereby the Post agreed that all regular situation holders would be “continuously employed for the remainder of their working lives by the Post as printers,” subject to voluntary terminations, survived the duration of the underlying Collective Bargaining Agreement and the elimination of the Post’s printing operations. The Court held that the explicit lifetime guarantee contained in the “scanner agreement” precluded the argument that it was dependent upon the Collective Bargaining Agreement as to duration, despite its explicit incorporation of the Collective Bargaining Agreement’s terms in other respects. The Court, however, recognized the “traditional reluctance of courts to construe employment contracts as lifetime guarantees,” and emphasized the “scanner agreement’s specific statement that it superceded any and all existing contracts and/or agreements between the parties and was permanent unless cancelled by mutual agreement of both parties. Id. at 1121. (emphasis added). In light of the above considerations, the Court finds that the retirees’ right to life and health insurance benefits under the terms of the Collective Bargaining Agreement terminated as of September 15, 1975, when the underlying Agreement expired. American Pad, however, appears to have left open the question whether the retired employees may have a vested right to the insurance benefits provided" }, { "docid": "7073809", "title": "", "text": "at 543. A patent ambiguity is one that exists on the face of the documents. Id. The plaintiffs urge us to find such ambiguity in the use of the terms “vested service” and “vesting service” in the Stipulation and SA. Ameren responds that the terms are merely used to denote which retiring employees are eligible for health benefits during the life of the labor agreement. We might be inclined to side with the plaintiffs, if we followed their lead and focused solely on the terms “vested” and “vesting.” But a determination as to the ambiguity of a written agreement is not so limited: “A provision that seems ambiguous might be disambiguated elsewhere in the agreement.” Id. at 545 (citations omitted); see also Bland, 401 F.3d at 784 (“Only if the language of the plan document is ambiguous and these ambiguities are not clarified elsewhere in the document may we consider evidence of the parties’ intent that is extrinsic to the writing.”) (citation omitted). Contractual provisions must be read in a manner that makes them consistent with each other. UAW v. Rockford Powertrain, Inc., 350 F.3d 698, 703 (7th Cir.2003) (“We must resolve the tension between the lifetime benefits clause, and the plan termination and reservation of rights clauses, by giving meaning to all of them.”). Accordingly, “[w]e have held that, when ‘lifetime’ benefits are granted by the same contract that reserves the right to change or terminate the benefits, the ‘lifetime’ benefits are not vested.” Vallone v. CNA Fin. Corp., 375 F.3d 623, 634-35 (7th Cir.2004) (citing Rockford Powertrain, 350 F.3d at 704). The reason for such a holding is that benefits described as “lifetime” are not really vested when the same contract also reserves the right to revoke them, because the only proper construction of the two seemingly conflicting provisions is that the “lifetime” benefits are “good for life unless revoked or modified.” Id. at 633; compare Bland, 401 F.3d at 788 (finding ambiguity where there was “no reservation of rights clause to constrain the interpretation of explicit ‘lifetime’ language”). The error in the plaintiffs’ construction of the Stipulation" }, { "docid": "18048424", "title": "", "text": "this order to enable Hyster to move for leave to file additional material in opposition to summary judgment if Hyster believes that is necessary. IT IS FÜRTHER ORDERED that the plaintiff Union’s Motion for a Temporary Restraining Order, which the court construes as a Motion for a Preliminary Injunction (docket # 6) is denied. . The parties agree that this is the correct way to proceed. . Hyster claims that its new plan is more beneficial to retirees in other respects. The particular attributes of either plan, however, are irrelevant to whether Hyster has a duty to arbitrate the Union's grievance. . This defeats Hyster's argument that the court does not have jurisdiction under § 301 of the LMRA to entertain disputes between employers and retirees. . The decision of the Seventh Circuit in Senn v. United Dominion Industries, Inc., 951 F.2d 806 (7th Cir.1992) is also inapposite. That case had nothing to do with arbitration. In Senn, the collective bargaining agreement between the union and the company contained a provision for health benefits for retirees. The issue was whether the company was required to continue to provide retirees with benefits upon the termination of the collective bargaining agreement. The court held that the retirees did not have a vested right to lifetime benefits so their benefits terminated when the agreement expired. The court reasoned that absent clear language to the contrary, “entitlements established by collective bargaining agreements do not survive their expiration or modification.” Id. at 816 (citing Merk v. Jewel Cos., Inc., 848 F.2d 761, 763 (7th Cir.1988)). In this case, the Union does not dispute that the retirees’ entitlement to benefits will terminate upon the termination of the Agreement in 1994. This case concerns whether a dispute about the meaning of the Agreement should be submitted to arbitration. Therefore, the rule in Senn requiring the court to look at the plain language of a collective bargaining agreement does not apply. In Anderson v. Alpha Portland Indus., 727 F.2d 177, 181 (8th Cir.1984), the Eighth Circuit, relying on Allied Chemical, stated that retirees were not employees within the" }, { "docid": "4020521", "title": "", "text": "not place the “grandfathered” employees in a separate category from employees whose benefits are subject to the “term of the agreement” limitation in Section I of the CBIA. They merely place the “grandfathered” employees in the same situation as those who retired prior to 1983. The fourth and final argument for latent ambiguity advanced by the retirees is that Auburn Gear’s actions during a 1990 arbitration action somehow reveals an understanding that the retirees’ benefits had vested. There is no evidence to support this conclusion. The arbitration was conducted under the terms of the agree ment then in place. Any statements made by Auburn Gear indicating a fear of long-term payments to a particular individual are limited by the clear language of the contract, in which “lifetime benefits” are only operable so long as they are provided for in the current CBIA. The impact of Section I’s limitation is unchanged by the retirees’ subjective interpretation of the company’s motive for arbitration. III. Conclusion Having found no patent or latent ambiguity in the collectively bargained insurance agreements, this Court concludes that Auburn Gear is under no obligation to continue to provide benefits to its former employees. The explicit language of the contract and this Court’s presumption against the vesting of healthcare benefits all weighed heavily against the retirees. Either lack of communication or an inadequate performance on the part of the Union led the retired employees and their survivors to believe their benefits could not be terminated. As we stated in a similar case, “this story does not have a happy ending.” Vallone, 375 F.3d at 642-43. We are mindful of the burden placed upon retired individuals with fixed incomes who now must bear an' unexpected increase in healthcare costs. See id; Corrao, 161 F.3d at 442. “However, we are bound to determine only whether a legally sufficient agreement between the parties exists to support the plaintiffs’ claim.” Barnett, 436 F.3d at 835 (7th Cir.2006). If a union “want[s] to assure that employer-paid health benefits for the workers they represent are vested they will have to insist on explicit language to" }, { "docid": "6068571", "title": "", "text": "absence of a reservation of rights clause, we are convinced (not surprisingly) that in the case before us “lifetime” is durational, meaning “for life.” In Vallone, we acknowledged alternatively that “lifetime” in the context of “lifetime benefits” could be construed as “good for life unless revoked or modified.” 375 F.3d at 633. However, we also noted that this construction of “lifetime” was most plausible if the plan documents included a reservation of rights clause, as was the case in Vallone. Id. This is because the presence of a reservation of rights clause fundamentally alters the interpretation of “lifetime” language; both the clause and the “lifetime” language must be read together, creating a tension that is best relieved by finding that retirees are entitled to benefits for life, but that this entitlement is subject to change at the employer’s will. See UAW v. Rockford Powertrain, Inc., 350 F.3d 698, 704 (7th Cir.2003) (“We must resolve the tension between the lifetime benefits clause, and the plan termination and reservation of rights clauses, by giving meaning to all of them. Reading the document in its entirety, the clauses explain that although the plan ... entitles retirees to health coverage for the duration of their lives ... the terms of the plan — including the plan’s continued existence — are subject to change at the will of’ the employer). In the absence of a reservation of rights clause, interpreting “lifetime” as being limited by the employer’s continuing willingness to provide benefits is unreasonable. In fact, Vallone appears to limit the interpretation of “lifetime” as “lifetime subject to change” to cases in which there is a reservation of rights clause. Id. at 634 (stating that “the ‘lifetime’ nature of a welfare benefit does not operate to vest that benefit if the employer reserved the right to amend or terminate the benefit.”) (emphasis added). We thus hold that, under Vallone and its antecedents, the presence of “lifetime” language in several of the FANA plan documents — language uncontradicted by the agreement read in its entirety — defeats summary judgment. Vallone, 375 F.3d at 637 (quoting Rossetto," }, { "docid": "23186877", "title": "", "text": "reserves the right, subject to the applicable provisions of the Labor Agreement between the Union and the Company, to terminate or change the Plan in the future.” Yolton, 318 F.Supp.2d at 468. The district court rejected the defendants’s arguments that this language permitted the modification of retirement benefits by finding that the “right to modify the Group Insurance Plans is expressly limited to the terms of the [CBAs].” Id. Because the district court found that the CBA creates the vested lifetime benefits, the court further concluded that this language does not reserve to the defendants the right to modify those benefits. Id. Regarding the Summary Plan Descriptions from the posN1980 agreements, the district court noted that they no longer included the reservation language, but rather a “Cessation of Benefits” provision stating that coverage will cease if the plan is cancelled in whole or in part. Id. The Cessation of Benefits refers to “the Sections of this booklet entitled ‘Retirement’ and ‘Termination of Coverage/ ” where there is no “Cessation of Benefits” provision. Id. “Rather this section, like the Group Insurance Plan, only ties the continuation of retirement benefits to the retiree’s or surviving spouse’s eligibility for pension benefits: ‘Employees who retire under the J.I. Case Pension Plan for Hourly Paid Employees, or their surviving spouses eligible to receive a spouse’s pension under the provisions of that plan, will be eligible for the benefits described in this section.’ ” Id. Further, this section provides that: “Except where noted, the benefits and máximums under these continued coverages will be the same as those that were in effect on the day preceding your retirement.” Id. (emphasis added). Finally, while the plain language of the CBAs requires us to conclude that the district court did not abuse its discretion by issuing the injunction, we also note that like the Golden case, “[defendant's conduct also indicates that plaintiffs’fs] benefits were vested.” Golden, 845 F.Supp. at 415. The district court identified substantial evidence indicating an understanding that the health insurance benefits were lifetime benefits. This evidence includes statements from Case benefits employees that they were told" }, { "docid": "9329352", "title": "", "text": "of the LMRA, in addition to injunctive relief pursuant to Sections 404(a)(1), 502(a)(1)(B) and 502(a)(3) of ERISA, the Seventh Amendment provided them with a right to a jury trial. Thus, the trial court acted properly in ordering a jury trial on the issue of whether the defendants breached the CBA in violation of Section 301(a) of the Labor Management Relations Act and Sections 502(a)(1) and (a)(3) of ERISA. V. RETIREES’ CONTRACTUAL ENTITLEMENT TO LIFETIME INSURANCE BENEFITS AND PRE-1986 RETIREES’ RIGHT TO FULLY PAID HMO BENEFITS The central issue in this case is whether Collective Bargaining Agreements and plan documents entitled retirees to welfare benefits for the rest of their lives and pre-1986 retirees to fully paid HMO benefits. The trial court accepted the jury’s verdict that the parties intended to contract for lifetime welfare benefits for persons who retired during the terms of each of the five CBAs between PST and the United Steelworkers and determined that retirees were entitled to these benefits. In Ryan v. Chromalloy American Corp., 877 F.2d 598, 602-03 (7th Cir.1989), we held that ERISA did not establish a statutory right of vesting for welfare benefits. But, we observed that employers and unions may choose to enter agreements for welfare benefits to vest: “[Pjarties are free to subject ... welfare benefits to vesting requirements not provided by ERISA, or they may reserve the power to terminate such plans. As the Sixth Circuit has stated in Hansen v. White Farm Equipment Co., 788 F.2d 1186 (6th Cir.1986), ‘the parties may themselves set out by agreement or by private design, as set out in plan documents, whether retiree welfare benefits vest, or whether they may be terminated.’ Id. at 1193.” Id. at 603. We have further recognized the legal proposition that, in the absence of an agreement to the contrary, a company is not obligated to continue retiree welfare benefits after the expiration of the contract: “The entitlements established by collective bargaining agreements do not survive their expiration or modification. So if, for example, the 1982-85 agreement had established a plan under which Jewel provided health benefits for" }, { "docid": "4020515", "title": "", "text": "in place. It is well established that “lifetime” benefits can be limited to the duration of a contract. We have previously found that where a reservation of rights clause coexists with a guarantee of lifetime benefits, “[w]e must resolve the tension between the lifetime benefits clause, and the plan termination and reservation of rights clauses, by giving meaning to all of them.... [Although the plan in its current iteration entitles retirees to health coverage for the duration of their lives and the lives of their eligible surviving spouses, the terms of the plan — including the plan’s continued existence — are subject to change at the will of [the employer].” UAW v. Rockford Powertrain, Inc., 350 F.3d 698, 703 (7th Cir.2003) (citations omitted); see also Vallone, 375 F.3d at 633. The provision in Section I of the CBIA, limiting benefits to the “period of this agreement,” is a reservation of rights clause. See Barnett, 436 F.3d at 834 (7th Cir.2006). At the end of each CBIA, lifetime benefits ceased and Auburn Gear was free to revoke or modify benefits. See id. at 833-34 (citing Vallone 375 F.3d at 633). So long as the CBIA was in effect, benefits remained valid; when the CBIA ceased to be effective, “lifetime benefits” ceased as well. The retirees also allege that similarities in language between the pension plan and CBIA demonstrates an intention to vest health benefits. While pensions are assumed to vest, there is no similar presumption in the provision of healthcare benefits. “[T]he packaging of a welfare benefit with pension benefits does not on its own alter our presumption against vesting in the absence of express language to the contrary.” Vallone, 375 F.3d at 633 n. 4. Words that signify a lifetime commitment in a pension plan may not have the same effect in the context of health benefits. While this may seem illogical, it is what the “beady eyes of the law” require. See id. at 634. The retirees must be held to the contract terms negotiated by their representatives. Under the CBIA, benefits must be provided to the retirees only" }, { "docid": "4969627", "title": "", "text": "to voluntary terminations, survived the duration of the underlying Collective Bargaining Agreement and the elimination of the Post’s printing operations. The Court held that the explicit lifetime guarantee contained in the “scanner agreement” precluded the argument that it was dependent upon the Collective Bargaining Agreement as to duration, despite its explicit incorporation of the Collective Bargaining Agreement’s terms in other respects. The Court, however, recognized the “traditional reluctance of courts to construe employment contracts as lifetime guarantees,” and emphasized the “scanner agreement’s specific statement that it superceded any and all existing contracts and/or agreements between the parties and was permanent unless cancelled by mutual agreement of both parties. Id. at 1121. (emphasis added). In light of the above considerations, the Court finds that the retirees’ right to life and health insurance benefits under the terms of the Collective Bargaining Agreement terminated as of September 15, 1975, when the underlying Agreement expired. American Pad, however, appears to have left open the question whether the retired employees may have a vested right to the insurance benefits provided for by contract “as implied by their total relationship to the company, separate and apart from the Collective Bargaining Agreement.” We now address that question. Although the Court in American Pad stated that it believed the life insurance arrangements in that case constituted the type of employee benefit provision which “vests” when the employee’s service called for is fully performed, there are certain aspects of the case at bar which are distinguishable. First, the insurance benefits in that case were provided first by company decision, and then confirmed by the Collective Bargaining Agreement. In this case, the benefits have apparently been provided only pursuant to identical provisions in successive Collective Bargaining Agreements, each of which has apparently also contained an identical provision governing the termination of all obligations arising under the Agreement. Second, the underlying contract in American Pad was found to support the interpretation that such retiree rights were intended to continue beyond the Agreement. Here, on the contrary, we have concluded that the contract as a whole indicates that the retirees’ insurance benefits" }, { "docid": "7073810", "title": "", "text": "with each other. UAW v. Rockford Powertrain, Inc., 350 F.3d 698, 703 (7th Cir.2003) (“We must resolve the tension between the lifetime benefits clause, and the plan termination and reservation of rights clauses, by giving meaning to all of them.”). Accordingly, “[w]e have held that, when ‘lifetime’ benefits are granted by the same contract that reserves the right to change or terminate the benefits, the ‘lifetime’ benefits are not vested.” Vallone v. CNA Fin. Corp., 375 F.3d 623, 634-35 (7th Cir.2004) (citing Rockford Powertrain, 350 F.3d at 704). The reason for such a holding is that benefits described as “lifetime” are not really vested when the same contract also reserves the right to revoke them, because the only proper construction of the two seemingly conflicting provisions is that the “lifetime” benefits are “good for life unless revoked or modified.” Id. at 633; compare Bland, 401 F.3d at 788 (finding ambiguity where there was “no reservation of rights clause to constrain the interpretation of explicit ‘lifetime’ language”). The error in the plaintiffs’ construction of the Stipulation and SA is that it completely ignores the limitation on benefits created by the SA, namely that the company would “take such action as may be necessary to modify and to continue for the life of the Labor Agreement ” the provisions of the health-care plan, (emphasis added). This explicit limitation as to the duration of the health-care benefits removes any ambiguity as to the terms “vested” and “vesting.” Therefore, in accordance with our precedent, we must accept Ameren’s construction of the terms as an eligibility requirement for obtaining benefits during the life of the agreement because it is the only way to give effect to the clause limiting the benefits to the life of the CBA. See Vallone, 375 F.3d at 633 (citing authority). The plaintiffs’ only response to this conclusion is to assert that the “life of the Labor Agreement” language was unilaterally inserted by UE into the SA. We are somewhat puzzled by what to do with this argument, because plaintiffs are not arguing that the SA in general, or the limitation" }, { "docid": "23500616", "title": "", "text": "on the personalized calculation worksheet and which allows eligible employees to choose to have their surviving spouses receive the HCA benefit after their death, is also offered for the implication that the benefits were for life (and even beyond). (R. 109-2, ex. 11.) That the HCA benefit was a “lifetime” benefit — both for regular retirees and for retirees who accepted the VSRP package — 5s actually conceded by CNA. (Appel-lees’ Br. at 27; 1992 Retirement Guide at 6.) The problem for the plaintiffs is that “lifetime” may be construed as “good for life unless revoked or modified.” This construction is particularly plausible if the contract documents include a reservation of rights clause (which, as will be shown, is the case here). See UAW v. Rockford Powertrain, Inc., 350 F.3d 698, 704 (7th Cir.2003) (“We must resolve the tension between the lifetime benefits clause, and the plan termination and reservation of rights clauses, by giving meaning to all of them. Reading the document in its entirety, the clauses explain that although the plan in its current iteration entitles retirees to health coverage for the duration of their fives and the fives of their eligible surviving spouses, the terms of the plan-including the plan’s continued existence— are subject to change at the will of [the employer]. The health insurance section of the plan description unambiguously does not provide the plaintiffs with vested lifetime health insurance benefits.”) (internal citations omitted); Diehl v. Twin Disc, 102 F.3d 301, 307 (7th Cir.1996) (“[W]hen potentially conflicting provisions coexist ... within a single contract formed of several documents, the rule that contractual provisions be read as parts of an integrated whole will lead a court to seek an interpretation that reconciles those provisions.”); see also In re Unisys Corp. Retiree Med. Benefit “ERISA” Litig., 58 F.3d 896, 904 (3d Cir.1995) (“An employer who promises lifetime medical benefits, while at the same time reserving the right to amend the plan under which those benefits were provided, has informed plan participants of the time period during which they will be eligible to receive benefits provided the plan continues" }, { "docid": "16534710", "title": "", "text": "The plaintiffs argue that ambiguity stems from language in the collective bargaining agreements that states: [Eligible employees ... will be covered ... under the terms and conditions of Blue Cross and Blue Shield of Massachusetts Master Medical Certificate, MM CES 3, as amended, or Medex Subscriber Certificate, Medex CES 1, as amended, the provisions of which are made a part of this Contract. Similar language was used regarding the dental benefits plan offered by the defendant. The plaintiffs contend that the phrase “eligible employees” could be construed to include retirees and that “will be covered” could mean a lifetime of unaltered coverage under the specified plans. NSTAR argues that the phrase “eligible employees” refers only to people currently working, not retirees. NSTAR further argues that the contract provides no indication that coverage would extend beyond the expiration date of each collective bargaining agreement. The place to start is with the phrase “will be covered.” When interpreting a contract, this Court cannot view words or phrases in isolation. See Cochran v. Quest Software, Inc., 328 F.3d 1, 7 (1st Cir.2003). Instead, the language of a contract must be given “a construction which comports with the Agreement as a whole.” See Fashion House, 892 F.2d at 1084. In this case, the collective bargaining agreements do not define the phrase “will be covered.” The collective bargaining agreements' do, however, explicitly incorporate the provisions of the Master Medical, Medex and dental benefit plans. The Master Medical, Medex and dental benefit plans, in turn, explicitly state that the plans can be changed or cancelled. In light of these facts, the terms of the collective bargaining agreements are not inconsistent, nor can there be reasonable differences of opinion regarding the meaning of the phrase “will be covered.” See In re Unisys Corp. Retiree Medical Benefit “ERISA” Litig., 58 F.3d 896, 903-04 (3d Cir.1995) (“the fact that the ... plans used terms such as ‘lifetime’ or ‘for life’ to describe the duration of retiree medical benefits, while at the same time expressly reserving the company’s right to terminate the plans under which those benefits were provided, did" }, { "docid": "16534711", "title": "", "text": "1, 7 (1st Cir.2003). Instead, the language of a contract must be given “a construction which comports with the Agreement as a whole.” See Fashion House, 892 F.2d at 1084. In this case, the collective bargaining agreements do not define the phrase “will be covered.” The collective bargaining agreements' do, however, explicitly incorporate the provisions of the Master Medical, Medex and dental benefit plans. The Master Medical, Medex and dental benefit plans, in turn, explicitly state that the plans can be changed or cancelled. In light of these facts, the terms of the collective bargaining agreements are not inconsistent, nor can there be reasonable differences of opinion regarding the meaning of the phrase “will be covered.” See In re Unisys Corp. Retiree Medical Benefit “ERISA” Litig., 58 F.3d 896, 903-04 (3d Cir.1995) (“the fact that the ... plans used terms such as ‘lifetime’ or ‘for life’ to describe the duration of retiree medical benefits, while at the same time expressly reserving the company’s right to terminate the plans under which those benefits were provided, did not render the plans ‘internally inconsistent’ and therefore ambiguous.”). When the benefit plans and the collective bargaining agreement are read as a whole contract, it is clear that the phrase “will be covered” cannot mean a lifetime of unaltered coverage, as the plaintiffs contend, because the health benefit plans contain language in which the insurance company and NSTAR reserve the right to change or cancel coverage. See DeGeare v. Alpha Portland Indus., Inc., 837 F.2d 812, 816 (8th Cir.1988) (holding employer’s promise that retiree benefits “will continue” did not create vested lifetime benefits in the face of a termination clause), vacated and remanded on other grounds, 489 U.S. 1049, 109 S.Ct. 1305, 103 L.Ed.2d 575 (1989). In short, the contract is not ambiguous and its interpretation is therefore a question of law for the court. See Lohnes, 272 F.3d at 53. The Court holds that by incorporating the terms of the Master Medical, Medex and dental benefit plans, the collective bargaining agreements at issue in this case did not prohibit NSTAR from making the types" }, { "docid": "22493041", "title": "", "text": "presumed that \"a general durational clause\" in a collective-bargaining agreement \" 'says nothing about the vesting of retiree benefits' \" in that agreement. Id., at ---- - ----, 135 S.Ct., at 934-935 (quoting Noe v. PolyOne Corp., 520 F.3d 548, 555 (C.A.6 2008) ). If the collective-bargaining agreement lacked \"a termination provision specifically addressing retiree benefits\" but contained specific termination provisions for other benefits, the Sixth Circuit presumed that the retiree benefits vested for life. Tackett, supra, at ---- - ----, 135 S.Ct., at 934-935 (citing Yard-Man, supra, at 1480). The Sixth Circuit also presumed vesting if \"a provision ... 'tie[d] eligibility for retirement-health benefits to eligibility for a pension.' \" 574 U.S., at ----, 135 S.Ct., at 934 (quoting Noe, supra, at 558). This Court's decision in Tackett \"reject[ed] the Yard-Man inferences as inconsistent with ordinary principles of contract law.\" 574 U.S., at ----, 135 S.Ct., at 937. Most obviously, the Yard-Man inferences erroneously \"refused to apply general durational clauses to provisions governing retiree benefits.\" 574 U.S., at ----, 135 S.Ct., at 936. This refusal \"distort[ed] the text of the agreement and conflict[ed] with the principle of contract law that the written agreement is presumed to encompass the whole agreement of the parties.\" Ibid. The Yard-Man inferences also incorrectly inferred lifetime vesting whenever \"a contract is silent as to the duration of retiree benefits.\" 574 U.S., at ----, 135 S.Ct., at 937. The \"traditional principle,\" Tackett explained, is that \" 'contractual obligations will cease, in the ordinary course, upon termination of the bargaining agreement.' \" Id., at ----, 135 S.Ct., at 937 (quoting Litton Financial Printing Div., Litton Business Systems, Inc. v. NLRB, 501 U.S. 190, 207, 111 S.Ct. 2215, 115 L.Ed.2d 177 (1991) ). \"[C]ontracts that are silent as to their duration will ordinarily be treated not as 'operative in perpetuity' but as 'operative for a reasonable time.' \" 574 U.S., at ----, 135 S.Ct., at 936 (quoting 3 A. Corbin, Corbin on Contracts § 553, p. 216 (1960)). In fact, the Sixth Circuit had followed this principle in cases involving noncollectively bargained agreements, see Sprague v. General" }, { "docid": "6068570", "title": "", "text": "after age 65 and that benefits “shall be continued” for spouses after the retirees’ deaths, and finding ambiguity in plan language stating that retirees and spouses “will be covered for the remainder of your lives” at no cost); Int’l Assoc. of Machinists and Aerospace Workers, Woodworkers Division, AFL-CIO v. Masonite, 122 F.3d 228, 233 (5th Cir.1997) (construing as ambiguous language incorporated into collective bargaining agreement stating that retirees were entitled to comprehensive medical benefits “until the death of the retired employee”); UAW v. Yard-Man, Inc., 716 F.2d 1476 (6th Cir.1983) (construing as ambiguous the statement that the “Company will provide insurance benefits equal to the active group benefits for retirees and their spouses”). Diehl goes so far as to intimate that “lifetime” language may be unambiguous, since such language “stands apart from language we have considered in similar cases in recent years” in which “we are more commonly asked to find an intent to create lifetime entitlements despite terms that are ambiguous or completely silent on the issue.” 102 F.2d at 306. Further, in the absence of a reservation of rights clause, we are convinced (not surprisingly) that in the case before us “lifetime” is durational, meaning “for life.” In Vallone, we acknowledged alternatively that “lifetime” in the context of “lifetime benefits” could be construed as “good for life unless revoked or modified.” 375 F.3d at 633. However, we also noted that this construction of “lifetime” was most plausible if the plan documents included a reservation of rights clause, as was the case in Vallone. Id. This is because the presence of a reservation of rights clause fundamentally alters the interpretation of “lifetime” language; both the clause and the “lifetime” language must be read together, creating a tension that is best relieved by finding that retirees are entitled to benefits for life, but that this entitlement is subject to change at the employer’s will. See UAW v. Rockford Powertrain, Inc., 350 F.3d 698, 704 (7th Cir.2003) (“We must resolve the tension between the lifetime benefits clause, and the plan termination and reservation of rights clauses, by giving meaning to all" }, { "docid": "23186871", "title": "", "text": "and intended to be lifetime benefits. Id. at 466-67. This language is similar to Golden, where the district court’s key finding was the provisions in each of the CBAs that tied retiree benefits and surviving spouse eligibility for health insurance coverage to eligibility for vested pension benefits. “Since retirees are eligible to receive pension benefits for life, the court found that the parties intended that the company provide lifetime health benefits as well.” Golden, 73 F.3d at 656. The defendants counter this finding by pointing to the durational clause in the CBA, which states in section 4A that the insurance plan “will run concurrently with [the CBA] and is hereby made part of this Agreement.” The defendants argue that this is clear and explicit language that demonstrates that the health insurance benefits were not intended to vest and were only to last as long as the CBA. Thus, every time a CBA expires, the company would be free to modify benefits until another CBA is agreed to. Stated another way, retiree’s health insurance coverage is subject to change every few years based on new bargaining agreements. The district court did not abuse its discretion in rejecting the defendants’s arguments for two reasons. First, as the district court found, “a number of courts have held that such general durational provisions only refer to the length of the [CBAs] and not the period of time contemplated for retiree benefits.” Yolton, 318 F.Supp.2d at 467 (citing Golden v. Kelsey-Hayes Co., 845 F.Supp. 410 (E.D.Mich. 1994)). Absent specific durational language referring to retiree benefits themselves, courts have held that the general durational language says nothing about those retiree benefits. Id; see also Yard-Man, 716 F.2d at 1482; Schalk v. Teledyne, Inc., 751 F.Supp. 1261, 1265 (W.D.Mich.1990), aff'd 948 F.2d 1290 (6th Cir.1991) (“the existence of a general durational clause which providefs] that the collective bargaining agreement should remain in effect until a certain date d[oes] not demonstrate an intent that all benefits described in the agreement also terminate! ] on that date.”). That reasoning as applied to the agreements before us means that the" }, { "docid": "6068572", "title": "", "text": "of them. Reading the document in its entirety, the clauses explain that although the plan ... entitles retirees to health coverage for the duration of their lives ... the terms of the plan — including the plan’s continued existence — are subject to change at the will of’ the employer). In the absence of a reservation of rights clause, interpreting “lifetime” as being limited by the employer’s continuing willingness to provide benefits is unreasonable. In fact, Vallone appears to limit the interpretation of “lifetime” as “lifetime subject to change” to cases in which there is a reservation of rights clause. Id. at 634 (stating that “the ‘lifetime’ nature of a welfare benefit does not operate to vest that benefit if the employer reserved the right to amend or terminate the benefit.”) (emphasis added). We thus hold that, under Vallone and its antecedents, the presence of “lifetime” language in several of the FANA plan documents — language uncontradicted by the agreement read in its entirety — defeats summary judgment. Vallone, 375 F.3d at 637 (quoting Rossetto, 217 F.3d at 547) (“If there is language in the agreement to suggest a grant of lifetime benefits, and the suggestion is not negated by the agreement read as a whole, the plaintiff is entitled to a trial.”). This holding is consonant with the decisions of other circuits. See Abbruscato v. Empire Blue Cross & Blue Shield, 274 F.3d 90, 98 (2d Cir.2001) (reversing grant of summary judgment to defendant plan and holding that, in the absence of reservation of rights clause, “lifetime” life insurance benefits in early retirement plans were “ambiguous and susceptible to interpretation as a promise of vested benefits”); Devlin v. Empire Blue Cross & Blue Shield, 274 F.3d 76, 85 (2d. Cir.2001) (stating that, where there was no reservation of rights clause, “ ‘lifetime’ language ... is sufficient to created a triable issue of fact as to whether Empire promised to vest retiree life insurance benefits at the stated level.”). On remand, if the judge or jury concludes that the ambiguous language establishes vesting, the decisionmaker must also determine whether all" } ]